CFR 2016 Title5 Vol1

Title 5
Administrative Personnel
Parts 1 to 699
Revised as of January 1, 2016
Containing a codification of documents

of general applicability and future effect
As of January 1, 2016
Published by the Office of the Federal Register

National Archives and Records Administration
as a Special Edition of the Federal Register
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Table of Contents
Page
Explanation ................................................................................................ v
Title 5:
Chapter IOffice of Personnel Management ................................... 3
Finding Aids:
Table of CFR Titles and Chapters ....................................................... 885
Alphabetical List of Agencies Appearing in the CFR ......................... 905
List of CFR Sections Affected ............................................................. 915

iii
Cite this Code: CFR
To cite the regulations in

this volume use title,
part and section num-
ber. Thus, 5 CFR 1.1 re-
fers to title 5, part 1,
section 1.
iv
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 agen-
cies of the Federal Government. The Code is divided into 50 titles which represent
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which usually bear the name of the issuing agency. Each chapter is further sub-
divided 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.
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vi
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Director,
Office of the Federal Register.
January 1, 2016.
vii
THIS TITLE
Title 5ADMINISTRATIVE PERSONNEL is composed of three volumes. The parts

in these volumes are arranged in the following order: Parts 1699, 7001199 and
part 1200end. The contents of these volumes represent all current regulations
codified under this title of the CFR as of January 1, 2016.
For this volume, Cheryl E. Sirofchuck was Chief Editor. The Code of Federal
Regulations publication program is under the direction of John Hyrum Martinez,
assisted by Stephen J. Frattini.
ix
Title 5Administrative
Personnel
(This book contains parts 1 to 699)
NOTE: Title 5 of the United States Code was revised and enacted into positive law by Pub.
L. 89554, 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 IOffice of Personnel Management ........................ 1

CHAPTER IOFFICE OF PERSONNEL
MANAGEMENT
SUBCHAPTER ACIVIL SERVICE RULES
Part Page
1 Coverage and definitions (Rule I) ............................ 7
2 Appointment through the competitive system
(Rule II) ................................................................ 8
3 Noncompetitive acquisition of status (Rule III) ..... 9
4 Prohibited practices (Rule IV) ................................ 10
5 Regulations, investigation, and enforcement (Rule
V) ......................................................................... 11
6 Exceptions from the competitive service (Rule VI) 12
7 General provisions (Rule VII) .................................. 14
8 Appointments to overseas positions (Rule VIII) ..... 15
9 Workforce information (Rule IX) ............................ 15
10 Agency accountability systems; OPM authority to
review personnel management programs (Rule X) 16
SUBCHAPTER BCIVIL SERVICE REGULATIONS
110 Posting notices of new OPM regulations ................ 17

151 Political activity of State or local officers or em-
ployees ................................................................. 17
175 OPM mandatory review of classified documents ..... 19
177 Administrative claims under Federal Tort Claims
Act ....................................................................... 19
178 Procedures for settling claims ................................ 23
179 Claims collection standards .................................... 27
180 Employees personal property claims ..................... 41
185 Program fraud civil remedies .................................. 48
210 Basic concepts and definitions (general) ................. 63
211 Veteran preference .................................................. 65
212 Competitive service and competitive status ........... 66
213 Excepted service ...................................................... 67
214 Senior Executive Service ........................................ 76
230 Organization of the Government for personnel
management ......................................................... 78
250 Personnel management in agencies ........................ 79
5 CFR Ch. I (1116 Edition)
Part Page
251 Agency relationships with organizations rep-
resenting Federal employees and other organiza-
tions ..................................................................... 85
293 Personnel records .................................................... 87
294 Availability of official information ........................ 101
295 Testimony by OPM employees relating to official
information and production of official records in
legal proceedings .................................................. 111
297 Privacy procedures for personnel records ............... 116
300 Employment (general) ............................................. 128
301 Overseas employment ............................................. 140
302 Employment in the excepted service ...................... 142
304 Expert and consultant appointments ...................... 149
305 [Reserved]
307 Veterans recruitment appointments ....................... 152
308 Volunteer service .................................................... 154
310 Employment of relatives ......................................... 154
315 Career and career-conditional employment ............ 155
316 Temporary and term employment .......................... 180
317 Employment in the Senior Executive Service ........ 186
319 Employment in senior-level and scientific and pro-
fessional positions ................................................ 199
330 Recruitment, selection, and placement (general) ... 202
332 Recruitment and selection through competitive
examination ......................................................... 223
333 [Reserved]
334 Temporary assignments under the Intergovern-
mental Personnel Act (IPA) ................................. 227
335 Promotion and internal placement ......................... 230
337 Examining system ................................................... 233
338 Qualification requirements (general) ...................... 237
339 Medical qualification determinations ..................... 238
340 Other than full-time career employment (Part-
time, seasonal, on-call, and intermittent) ........... 242
351 Reduction in force ................................................... 247
352 Reemployment rights .............................................. 268
353 Restoration to duty from uniformed service or
compensable injury .............................................. 284
359 Removal from the Senior Executive Service; guar-
anteed placement in other personnel systems ..... 293
362 Pathways Programs ................................................ 303
370 Information Technology Exchange Program .......... 315
410 Training .................................................................. 319
412 Supervisory, management, and executive develop-
ment ..................................................................... 328
430 Performance management ...................................... 332
432 Performance based reduction in grade and removal

actions .................................................................. 350
Office of Personnel Management
Part Page
451 Awards .................................................................... 355
470 Personnel management research programs and
demonstrations projects ....................................... 360
511 Classification under the General Schedule ............. 364
530 Pay rates and systems (general) ............................. 370
531 Pay under the General Schedule ............................. 381
532 Prevailing rate systems .......................................... 416
534 Pay under other systems ......................................... 517
535 Critical position pay authority ............................... 539
536 Grade and pay retention ......................................... 542
537 Repayment of student loans .................................... 558
550 Pay administration (general) .................................. 564
551 Pay administration under the Fair Labor Stand-
ards Act ................................................................ 658
553 Reemployment of civilian retirees to meet excep-
tional employment needs ..................................... 692
572 Travel and transportation expenses; new ap-
pointees and interviews ........................................ 695
575 Recruitment, relocation, and retention incentives;
supervisory differentials; and extended assign-
ment incentives .................................................... 695
576 Voluntary separation incentive payments .............. 729
581 Processing garnishment orders for child support
and/or alimony ..................................................... 733
582 Commercial garnishment of Federal employees
pay ....................................................................... 791
591 Allowances and differentials ................................... 798
595 Physicians comparability allowances .................... 820
610 Hours of duty .......................................................... 823
630 Absence and leave ................................................... 828
631699 [Reserved]
SUBCHAPTER ACIVIL SERVICE RULES
PART 1COVERAGE AND (c) Competitive status shall mean basic

DEFINITIONS (RULE I) eligibility to be noncompetitively se-
lected to fill a vacancy in a competi-
Sec.
tive position. A competitive status
1.1 Positions and employees affected by the
shall be acquired by career-conditional
rules in this subchapter. or career appointment through open
1.2 Extent of the competitive service. competitive examination upon satis-
1.3 Definitions. factory completion of a probationary
1.4 Extent of the excepted service. period, or may be granted by statute,
executive order, or the Civil Service
AUTHORITY: 5 U.S.C. 3301, 3302. Rules without competitive examina-
SOURCE: 28 FR 10022, Sept. 14, 1963, unless tion. A person with competitive status
otherwise noted. may be promoted, transferred, reas-
signed, reinstated, or demoted without
1.1 Positions and employees affected taking an open competitive examina-
by the rules in this subchapter. tion, subject to the conditions pre-
The rules in this subchapter shall scribed by the Civil Service Rules and
apply to all positions in the competi- Regulations.
tive service and to all incumbents of (d) An employee shall be considered
such positions. Except as expressly pro- as being in the competitive service
vided in the rule concerned, the rules when he has a competitive status and
in this subchapter shall not apply to occupies a competitive position unless
positions and employees in the ex- he is serving under a temporary ap-
cepted service. pointment: Provided, that an employee
who is in the competitive service at the
1.2 Extent of the competitive service. time his position is first listed under
Schedule A, B, or C shall be considered
The competitive service shall in- as continuing in the competitive serv-
clude: (a) All civilian positions in the ice as long as he continues to occupy
executive branch of the Government such position.
unless specifically excepted therefrom (e) Tenure shall mean the period of
by or pursuant to statute or by the Of- time an employee may reasonably ex-
fice of Personnel Management (here- pect to serve under his current ap-
after referred to in this subchapter as pointment. Tenure shall be granted and
OPM) under 6.1 of this subchapter; governed by the type of appointment
and (b) all positions in the legislative under which an employee is currently
and judicial branches of the Federal serving without regard to whether he
Government and in the Government of has a competitive status or whether his
the District of Columbia which are spe- appointment is to a competitive posi-
cifically made subject to the civil serv- tion or an excepted position.
ice laws by statute. OPM is authorized
and directed to determine finally 1.4 Extent of the excepted service.
whether a position is in the competi- (a) The excepted service shall include
tive service. all civilian positions in the executive
1.3 Definitions. branch of the Government which are
specifically excepted from the require-
As used in the rules in this sub- ments of the Civil Service Act or from
chapter: the competitive service by or pursuant
(a) Competitive service shall have the to statute or by OPM under 6.1 of this
same meaning as the words classified subchapter.
service, or classified (competitive) (b) Excepted service shall have the
service, or classified civil service as same meaning as the words unclassi-
defined in existing statutes and execu- fied service, or unclassified civil
tive orders. service, or positions outside the

(b) Competitive position shall mean a competitive civil service as used in
position in the competitive service. existing statutes and executive orders.
Pt. 2 5 CFR Ch. I (1116 Edition)
(c) Excepted position shall have the pensation for fourth-class postmaster
same meaning as unclassified posi- positions is too low to warrant regular
tion, or position excepted by law, competitive examinations for such po-
or position excepted by executive sitions, it may authorize appointment
order, or position excepted by Civil to any such position or positions in ac-
Service Rule, or position outside the cordance with such procedure as may
competitive service as used in exist- be prescribed by OPM. Persons ap-
ing statutes and Executive orders. pointed under this paragraph may ac-
quire competitive status subject to sat-
PART 2APPOINTMENT THROUGH isfactory completion of a probationary
THE COMPETITIVE SYSTEM (RULE II) period prescribed by OPM.
2.2 Appointments.
Sec.
2.1 Competitive examinations and eligible (a) OPM shall establish and admin-
registers. ister a career-conditional appointment
2.2 Appointments. system for positions subject to com-
2.3 Apportionment. petitive examinations which will per-
2.4 Probationary period.
mit adjustment of the career service to
AUTHORITY: 5 U.S.C. 3301, 3302. necessary fluctuations in Federal em-
SOURCE: 28 FR 10023, Sept. 14, 1963, unless ployment, and provide an equitable and
otherwise noted. orderly system for stabilizing the Fed-
eral work force. A competitive status
2.1 Competitive examinations and el- shall be acquired by a career-condi-
igible registers. tional appointee upon satisfactory
(a) OPM shall be responsible for open completion of a probationary period,
competitive examinations for admis- but the appointee shall have career-
sion to the competitive service which conditional tenure for a period of serv-
will fairly test the relative capacity ice to be prescribed by regulation of
and fitness of the persons examined for OPM. When an employee has completed
the position to be filled. OPM is au- the required period of service his ap-
thorized to establish standards with re- pointment shall be converted to a ca-
spect to citizenship, age, education, reer appointment without time limita-
training and experience, suitability, tion: Provided, That his career-condi-
and physical and mental fitness, and tional appointment shall not be con-
for residence or other requirements verted to a career appointment if the
which applicants must meet to be ad- limitation on the number of permanent
mitted to or rated in examinations. employees in the Federal civil service
(b) In addition to the names of per- established under paragraph (b) of this
sons who qualify in competitive exami- section would be exceeded thereby.
nations, the names of persons who have Persons selected from competitive civil
lost eligibility on a career or career- service registers for other than tem-
conditional register because of service porary appointment shall be given ca-
in the armed forces, and the names of reer-conditional appointments: Pro-
persons who lost opportunity for cer- vided, That career appointments shall
tification or who have served under ca- be given to the following classes of eli-
reer or career-conditional appointment gibles:
when OPM determines that they should (1) Persons whose appointments are
be given certification, may also be en- required by statute to be made on a
tered at such places on appropriate reg- permanent basis;
isters and under such conditions as (2) Employees serving under career
OPM may prescribe. appointments at the time of selection
(c) Whenever the Office of Personnel from such registers;
Management (1) is unable to certify a (3) Former employees who have eligi-
sufficient number of names to permit bility for career appointments upon re-
the appointing officer to consider three instatement; and
eligibles for appointment to a fourth- (4) To the extent permitted by law,
class postmaster position in accord- persons appointed to positions in the

ance with the regular procedure, or (2) field service of the U.S. Postal Service
finds that a particular rate of com- for which salary rates are fixed by the
Office of Personnel Management 3.1
act of July 6, 1945, 59 Stat. 435, as here- SOURCE: 28 FR 10023, Sept. 14, 1963, unless
tofore or hereafter amended and sup- otherwise noted.
plemented.
3.1 Classes of persons who may non-
(b) Under the career-conditional ap- competitively acquire status.
pointment system there shall be a
limit on the number of permanent em- (a) Upon recommendation by the
ployees in the Federal civil service agency concerned, and subject to such
which shall be the ceiling established noncompetitive examination, time lim-
by section 1310 of the Supplemental Ap- its, or other requirements as OPM may
propriation Act, 1952 (65 Stat. 757), as prescribe the following classes of per-
amended. In the event section 1310, sons may acquire a competitive status
supra, is repealed, OPM is authorized without competitive examination:
to fix such limitation on the number of (1) A person holding a permanent po-
permanent employees in the Federal sition when it is placed in the competi-
civil service as it finds necessary to tive service by statute or executive
meet the needs of the service. order or is otherwise made subject to
(c) OPM may determine the types, competitive examination.
duration, and conditions of indefinite (2) A disabled veteran who, in a man-
and temporary appointments, and may ner satisfactory to OPM, has completed
prescribe the method for replacing per- a course of training in the executive
sons holding such appointments. branch of the Government prescribed
by the Administrator of Veterans Af-
2.3 Apportionment. fairs in accordance with the act of
Subject to such modifications as March 24, 1943 (57 Stat. 43).
OPM finds to be necessary in the inter- (3) An employee who has served at
est of good administration, appoint- least two years in the immediate office
ments to positions in agencies head- of the President or on the White House
quarters offices which are located with- Staff and who is transferred to a com-
in the metropolitan area of Wash- petitive position at the request of an
ington, DC, shall be made so as to agency.
maintain the apportionment of ap- (4) An employee who was serving
pointments among the several States, when his name was reached for certifi-
Territories, and the District of Colum- cation on a civil service register appro-
bia upon the basis of population. priate for the position in which he was
serving: Provided, That the rec-
2.4 Probationary period. ommendation for competitive status is
Persons selected from registers of eli- made prior to expiration of the register
gibles for career or career-conditional on which his name appears or is made
appointment and employees promoted, during a period of continuous service
transferred, or otherwise assigned, for since his name was reached: Provided
the first time, to supervisory or mana- further, That the register was being
gerial positions shall be required to used for appointments conferring com-
serve a probationary period under petitive status at the time his name
terms and conditions prescribed by the was reached.
Office. (b) Upon recommendation by the em-
ploying agency, and subject to such re-
[45 FR 4337, Jan. 22, 1980]
quirements as the Office of Personnel
Management may prescribe, the fol-
PART 3NONCOMPETITIVE lowing classes of handicapped employ-
ACQUISITION OF STATUS (RULE III) ees may acquire competitive status
without competitive examination:
Sec. (1) A severely physically handicapped
3.1 Classes of persons who may noncompeti- employee who completes at least two
tively acquire status. years of satisfactory service in a posi-
3.2 Appointments without competitive ex- tion excepted from the competitive
amination in rare cases.
service.
3.3 Conversion of appointments.
(2) A mentally retarded employee
AUTHORITY: 5 U.S.C. 3301, 3302. who completes at least two years of
3.2 5 CFR Ch. I (1116 Edition)
satisfactory service in a position ex- 4.1 Prohibition against political ac-

cepted from the competitive service. tivity.
(3) An employee with a psychiatric No person employed in the executive
disability who completes at least 2 branch of the Federal Government, or
years of satisfactory service in a posi- any agency or department thereof,
tion excepted from the competitive shall use his official authority or influ-
service. ence for the purpose of interfering with
[28 FR 10023, Sept. 14, 1963, as amended by an election or affecting the result
E.O. 12125, 3 CFR, 1979 Comp., p. 375; 65 FR thereof. No person occupying a position
41868, July 7, 2000] in the competitive service shall take
any active part in political manage-
3.2 Appointments without competi- ment or in political campaigns, except
tive examination in rare cases. as may be provided by or pursuant to
Subject to receipt of satisfactory evi- statute. All such persons shall retain
dence of the qualifications of the per- the right to vote as they may choose
son to be appointed, OPM may author- and to express their opinions on all po-
ize an appointment in the competitive litical subjects and candidates.
service without competitive examina-
[28 FR 10024, Sept. 14, 1963]
tion whenever it finds that the duties
or compensation of the position are 4.2 Prohibition against racial, polit-
such, or that qualified persons are so ical or religious discrimination.
rare, that, in the interest of good civil-
No person employed in the executive
service administration, the position
branch of the Federal Government who
cannot be filled through open competi-
has authority to take or recommend
tive examination. Any person here-
any personnel action with respect to
tofore or hereafter appointed under
any person who is an employee in the
this section shall acquire a competitive
competitive service or any eligible or
status upon completion of at least one
applicant for a position in the competi-
year of satisfactory service and compli-
tive service shall make any inquiry
ance with such requirements as OPM
concerning the race, political affili-
may prescribe. Detailed statements of
ation, or religious beliefs of any such
the reasons for the noncompetitive ap-
employee, eligible, or applicant. All
pointments made under this section
disclosures concerning such matters
shall be published in OPMs annual re-
shall be ignored, except as to such
ports.
membership in political parties or or-
3.3 Conversion of appointments. ganizations as constitutes by law a dis-
qualification for Government employ-
Any person who acquires a competi- ment. No discrimination shall be exer-
tive status under this part shall have cised, threatened, or promised by any
his appointment converted to career- person in the executive branch of the
conditional appointment unless he Federal Government against or in
meets the service requirement for ca- favor of any employee in the competi-
reer appointment prescribed under tive service, or any eligible or appli-
2.2(a) of this subchapter. cant for a position in the competitive
service because of his race, political af-
PART 4PROHIBITED PRACTICES filiation, or religious beliefs, except as
(RULE IV) may be authorized or required by law.
[28 FR 10024, Sept. 14, 1963]
Sec.
4.1 Prohibition against political activity.
4.3 Prohibition against securing
4.2 Prohibition against racial, political or withdrawal from competition.
religious discrimination.
4.3 Prohibition against securing withdrawal No person shall influence another
from competition. person to withdraw from competition
AUTHORITY: 5 U.S.C. 3301, 3302.

for any position in the competitive
10
service for the purpose of either im- Bulletin and in the Directors next an-
proving or injuring the prospects of nual report.
any applicant for appointment.
5.2 Investigation and evaluations.
[28 FR 10024, Sept. 14, 1963, as amended at 45
FR 4337, Jan. 22, 1980] The Director may secure effective
implementation of the civil service
PART 5REGULATIONS, INVES- laws, rules, and regulations, and all Ex-
ecutive orders imposing responsibil-
TIGATION, AND ENFORCEMENT ities on the Office by:
(RULE V) (a) Investigating the qualifications
and suitability of applicants for posi-
Sec.
5.1 Civil Service regulations.
tions in the competitive service. The
5.2 Investigation and evaluations. Director may require appointments to
5.3 Enforcement. be made subject to investigation to en-
5.4 Information and testimony. able the Director to determine, after
AUTHORITY: 5 U.S.C. 3301, 3302; E.O. 12107.
appointment, that the requirements of
law or the civil service rules and regu-
SOURCE: 45 FR 4337, Jan. 22, 1980, unless lations have been met.
otherwise noted.
(b) Evaluating the effectiveness of:
5.1 Civil Service regulations. (1) Personnel policies, programs, and
operations of Executive and other Fed-
The Director, Office of Personnel eral agencies subject to the jurisdic-
Management, shall promulgate and en- tion of the Office, including their effec-
force regulations necessary to carry tiveness with regard to merit selection
out the provisions of the Civil Service and employee development; (2) agency
Act and the Veterans Preference Act, compliance with and enforcement of
as reenacted in title 5, United States applicable laws, rules, regulations and
Code, the Civil Service Rules, and all office directives; and (3) agency per-
other statutes and Executive orders sonnel management evaluation sys-
imposing responsibilities on the Office. tems.
The Director is authorized, whenever (c) Investigating, or directing an
there are practical difficulties and un- agency to investigate and report on,
necessary hardships in complying with apparent violations of applicable laws,
the strict letter of the regulation, to rules, regulations, or directives requir-
grant a variation from the strict letter ing corrective action, found in the
of the regulation if such a variation is course of an evaluation.
within the spirit of the regulations,
and the efficiency of the Government [45 FR 4337, Jan. 22, 1980, as amended by E.O.
and the integrity of the competitive 13197, 66 FR 7853, Jan. 25, 2001]
service are protected and promoted.
Whenever a variation is granted the Di- 5.3 Enforcement.
rector shall note the official record to (a) The Director is authorized to en-
show: sure enforcement of the civil service
(a) The particular practical difficulty laws, rules, and regulations, and all ap-
or hardship involved, (b) what is per- plicable Executive orders, by:
mitted in place of what is required by (1) Instructing an agency to separate
regulations, (c) the circumstances or take other action against an em-
which protect or promote the effi- ployee serving an appointment subject
ciency of the Government and the in- to investigation when the Director
tegrity of the competitive service, and finds that the employee is disqualified
(d) a statement limiting the applica- for Federal employment. Where the
tion of the variation to the continu- employee or the agency appeals the Di-
ation of the conditions which gave rise rectors finding that a separation or
to it. Like variations shall be granted other action is necessary, the Director
whenever like conditions exist. All may instruct the agency as to whether
such decisions and information con- or not the employee should remain on
cerning variations noted in the official duty and continue to receive pay pend-
record shall be published promptly in a ing adjudication of the appeal: Pro-
Federal Personnel Manual Letter or vided, That when an agency separates
11
or takes other action against an em- ized representatives of these bodies,

ployee pursuant to the Directors in- agencies shall make available to them,
structions, and the Director, on the or to their authorized representatives,
basis of new evidence, subsequently re- employees to testify in regard to mat-
verses the initial decision as to the em- ters inquired of under the civil service
ployees qualifications and suitability, laws, rules, and regulations, and
the agency shall, upon request of the records pertinent to these matters. All
Director, restore the employee to duty such employees, and all applicants or
or otherwise reverse any action taken. eligibles for positions covered by these
(2) Reporting the results of evalua- rules, shall give to the Office, the Merit
tion or investigations to the head of Systems Protection Board, the Special
the agency concerned with instructions Counsel, or to their authorized rep-
for any corrective action necessary, in- resentatives, all information, testi-
cluding cancellation of personnel ac- mony, documents, and material in re-
tions where appropriate. The Directors gard to the above matters, the disclo-
findings resulting from evaluations or sure of which is not otherwise prohib-
investigations are binding unless ited by law or regulation. These em-
changed as a result of agency evidence ployees, applicants, and eligibles shall
and arguments against them. If, during sign testimony given under oath or af-
the course of any evaluation or inves- firmation before an officer authorized
tigation under this section, the Direc- by law to administer oaths. Employees
tor finds evidence of matters which are performing official duty when tes-
come within the investigative and tifying or providing evidence pursuant
prosecutorial jurisdiction of the Spe- to this section.
cial Counsel of the Merit Systems Pro-
tection Board, the Director shall refer PART 6EXCEPTIONS FROM THE
this evidence to the Special Counsel for COMPETITIVE SERVICE (RULE VI)
appropriate disposition.
(b) Whenever the Director issues spe- Sec.
cific instructions as to separation or 6.1 Authority to except positions from the
other corrective action with regard to competitive service.
an employee, including cancellation of 6.2 Schedules of excepted positions.
6.3 Method of filling excepted positions and
a personnel action, the head of the
status of incumbents.
agency concerned shall comply with 6.4 Removal of incumbents of excepted posi-
the Directors instructions. tions.
(c) If the agency head fails to comply 6.5 Assignment of excepted employees.
with the specific instructions of the Di- 6.6 Revocation of exceptions.
rector as to separation or other correc- 6.7 Movement of persons between the civil
tive action with regard to an employee, service system and other merit systems.
6.8 Specified exceptions.
including cancellation of a personnel
action, the Director may certify to the AUTHORITY: 5 U.S.C. 3301, 3302.
Comptroller General of the United SOURCE: 28 FR 10025, Sept. 14, 1963, unless
States the agencys failure to act to- otherwise noted.
gether with such additional informa-
tion as the Comptroller General may 6.1 Authority to except positions
require, and shall furnish a copy of from the competitive service.
such certification to the head of the (a) OPM may except positions from
agency concerned. The individual with the competitive service when it deter-
respect to whom such separation or mines that (A) appointments thereto
other corrective action was instructed through competitive examination are
shall be entitled thereafter to no pay not practicable, or (B) recruitment
or only to such pay as appropriate to from among students attending quali-
effectuate the Directors instructions. fying educational institutions or indi-
viduals who have recently completed
5.4 Information and testimony. qualifying educational programs can
When required by the Office, the better be achieved by devising addi-
Merit Systems Protection Board, or tional means for recruiting and assess-
the Special Counsel of the Merit Sys- ing candidates that diverge from the
tems Protection Board, or by author- processes generally applicable to the
12
competitive service. These positions shall not acquire competitive status by

shall be listed in OPMs annual report reason of such appointment: Provided,
for the fiscal year in which the excep- That OPM, in its discretion, may by
tions are made. regulation prescribe conditions under
(b) OPM shall decide whether the du- which excepted positions may be filled
ties of any particular position are such in the same manner as competitive po-
that it may be filled as an excepted positions are filled and conditions under
sition under the appropriate schedule. which persons so appointed may ac-
(c) Notice of OPMs decision granting quire a competitive status in accord-
authority to make appointments to an ance with the Civil Service Rules and
excepted position under the appro- Regulations.
priate schedule shall be published in (b) To the extent permitted by law
the FEDERAL REGISTER. and the provisions of this part, ap-
[28 FR 10025, Sept. 14, 1963, as amended by
pointments and position changes in the
E.O. 11315, 3 CFR, 19661970 Comp., p. 597; E.O. excepted service shall be made in ac-
12043, 43 FR 9773, Mar. 10, 1978; E.O. 13562, 75 cordance with such regulations and
FR 82587, Dec. 30, 2010] practices as the head of the agency
concerned finds necessary.
6.2 Schedules of excepted positions.
OPM shall list positions that it 6.4 Removal of incumbents of ex-
cepted positions.
excepts from the competitive service in
Schedules A, B, C, and D, which sched- Except as may be required by stat-
ules shall constitute parts of this rule, ute, the Civil Service Rules and Regu-
as follows: lations shall not apply to removals
from positions listed in Schedules A, C,
Schedule A. Positions other than those of a
or D or from positions excepted from
confidential or policy-determining character
for which it is not practicable to examine the competitive service by statute. The
shall be listed in Schedule A. Civil Service Rules and Regulations
Schedule B. Positions other than those of a shall apply to removals from positions
confidential or policy-determining character listed in Schedule B of persons who
for which it is not practicable to hold a com- have competitive status.
petitive examination shall be listed in
Schedule B. Appointments to these positions [28 FR 10025, Sept. 14, 1963, as amended by
shall be subject to such noncompetitive ex- E.O. 13562, 75 FR 82587, Dec. 30, 2010]
amination as may be prescribed by OPM.
Schedule C. Positions of a confidential or 6.5 Assignment of excepted employ-
policy-determining character shall be listed ees.
in Schedule C. No person who is serving under an ex-
Schedule D. Positions other than those of a cepted appointment shall be assigned
confidential or policy-determining character
for which the competitive service require-
to the work of a position in the com-
ments make impracticable the adequate re- petitive service without prior approval
cruitment of sufficient numbers of students of OPM.
attending qualifying educational institu-
tions or individuals who have recently com- 6.6 Revocation of exceptions.
pleted qualifying educational programs. OPM may remove any position from
These positions, which are temporarily
placed in the excepted service to enable more
or may revoke in whole or in part any
effective recruitment from all segments of provision of Schedule A, B, C, or D. No-
society by using means of recruiting and as- tice of OPMs decision making these
sessing candidates that diverge from the changes shall be published in the FED-
rules generally applicable to the competitive ERAL REGISTER.
service, shall be listed in Schedule D.
[E.O. 11315, 3 CFR, 19661970 Comp., p. 597, as
[E.O. 13562, 75 FR 82587, Dec. 30, 2010] amended by E.O. 12043, 43 FR 9773, Mar. 10,
1978; E.O. 13562, 75 FR 82587, Dec. 30, 2010]
6.3 Method of filling excepted posi-
tions and status of incumbents. 6.7 Movement of persons between the
(a) The head of an agency may fill ex- civil service system and other merit
systems.
cepted positions by the appointment of

persons without civil service eligibility Whenever OPM and any Federal
or competitive status and such persons agency having an established merit
13
system determine it to be in the inter- PART 7GENERAL PROVISIONS

est of good administration and con- (RULE VII)
sistent with the intent of the civil
service laws and any other applicable Sec.
laws, they may enter into an agree- 7.1 Discretion in filling vacancies.
ment prescribing conditions under 7.2 Reemployment rights.
which persons may be moved from one 7.3 Citizenship.
system to the other and defining the AUTHORITY: 5 U.S.C. 3301, 3302.
status and tenure that the persons af- SOURCE: 28 FR 10025, Sept. 14, 1963, unless
fected shall acquire upon such move- otherwise noted.
ment.
7.1 Discretion in filling vacancies.
6.8 Specified exceptions. In his discretion, an appointing offi-
(a) Positions in the Department of cer may fill any position in the com-
the Interior and in the Department of petitive service either by competitive
Commerce whose incumbents serve as appointment from a civil service reg-
ister or by noncompetitive selection of
the principal representative of the Sec-
a present or former Federal employee,
retary in their respective regions shall
in accordance with the Civil Service
be listed in Schedule C for grades not Regulations. He shall exercise his dis-
exceeding grade GS15 of the General cretion in all personnel actions solely
Schedule, and shall be designated Non- on the basis of merit and fitness and
career Executive Assignments for posi- without regard to political or religious
tions graded higher than GS15. Incum- affiliations, marital status, or race.
bents of these positions who are, on
February 15, 1975, in the competitive 7.2 Reemployment rights.
service shall not be affected by the OPM, whenever it determines it to be
foregoing provisions of this section. necessary, shall prescribe regulations
(b) Positions in the Community Serv- governing the release of employees
ices Administration and ACTION (both within the competitive service
whose incumbents serve as regional di- and the excepted service) by any agen-
rector or regional administrator shall cy in the executive branch of the Gov-
be listed in Schedule C for grades not ernment for employment in any other
exceeding GS15 of the General Sched- agency, and governing the establish-
ule and shall be designated Noncareer ment, granting, and exercise of rights
Executive Assignments for positions to reemployment in the agencies from
graded higher than GS15. Incumbents which employees are released.
of these positions who are, on Novem- [28 FR 10025, Sept. 14, 1963. Redesignated by
ber 29, 1977, in the competitive service E.O. 13197, 66 FR 7853, Jan. 25, 2001]
shall not be affected by the foregoing
7.3 Citizenship.
provisions of this subsection.
(c) Within the Department of Agri- (a) No person shall be admitted to
culture, positions in the Agriculture competitive examination unless such
Stabilization and Conservation Service person is a citizen or national of the
the incumbents of which serve as State United States.
(b) No person shall be given any ap-
Executive Directors and positions in
pointment in the competitive service
the Farmers Home Administration the
unless such person is a citizen or na-
incumbents of which serve as State Di- tional of the United States.
rectors or State Directors-at-Large (c) OPM may, as an exception to this
shall be listed in Schedule C for all rule and to the extent permitted by
grades of the General Schedule. law, authorize the appointment of
[E.O. 11839, 40 FR 7351, Feb. 19, 1975, as aliens to positions in the competitive
amended by E.O. 11887, 40 FR 51411, Nov. 5, service when necessary to promote the
1975; E.O. 12021, 42 FR 61237, Dec. 2, 1977; 47 efficiency of the service in specific
FR 4227, Jan. 29, 1982] cases or for temporary appointments.
[E.O. 11935, 41 FR 37301, Sept. 3, 1976. Redesig-

nated by E.O. 13197, 66 FR 7853, Jan. 25, 2001]
14
PART 8APPOINTMENTS TO 8.3 Appointment of persons not citi-

OVERSEAS POSITIONS (RULE VIII) zens of the United States.
Persons who are not citizens of the
Sec. United States may be recruited over-
8.1 Additional authority of OPM. seas and appointed to overseas posi-
8.2 Appointment of United States citizens. tions without regard to the Civil Serv-
8.3 Appointment of persons not citizens of ice Act.
the United States.
8.4 Positions excepted from the application 8.4 Positions excepted from the ap-
of this part. plication of this part.
AUTHORITY: 5 U.S.C. 3301, 3302. This part shall not apply to positions
in Hawaii, Puerto Rico, the Virgin Is-
SOURCE: 28 FR 10025, Sept. 14, 1963, unless lands, and Alaska, and on the Isthmus
otherwise noted.
of Panama.
8.1 Additional authority of OPM.
PART 9WORKFORCE
In addition to authorizing the re-
cruitment and appointment of persons
INFORMATION (RULE IX)
to overseas positions under regulations
Sec.
issued under the preceding Rules, OPM 9.1 Definition.
may, by the regulations prescribed by 9.2 Reporting workforce information.
it, authorize the recruitment and ap-
SOURCE: E.O. 13197, 66 FR 7853, Jan. 25, 2001,
pointment of persons to such positions unless otherwise noted.
as provided in 8.2. As used in this part,
overseas positions means positions in 9.1 Definition.
foreign countries and in other areas be-
As used in this rule, Executive agen-
yond the continental limits of the cy means an Executive department, a
United States, except as provided in Government corporation, and an inde-
8.4. pendent establishment, as those terms
are defined in chapter 1 of title 5,
8.2 Appointment of United States
citizens. United States Code, but does not in-
clude the Federal Bureau of Investiga-
United States citizens may be re- tion, the Central Intelligence Agency,
cruited overseas for appointment to the Defense Intelligence Agency, the
overseas positions in the competitive National Imagery and Mapping Agen-
service without regard to the competi- cy, the National Security Agency, and,
tive requirements of the Civil Service as determined by the President, any
Act. Persons so recruited who meet the Executive agency or unit within an Ex-
qualification standards and other re- ecutive agency which has as its prin-
quirements of OPM for overseas posi- cipal function the conduct of foreign
tions may be given appointments to be intelligence or counterintelligence ac-
known as overseas limited appoint- tivities.
ments. Such appointments shall be of
temporary or indefinite duration, and 9.2 Reporting workforce information.
shall not confer the right to acquire a The Director of the Office of Per-
competitive status. OPM may author- sonnel Management may require all
ize overseas limited appointments for Executive agencies to report informa-
United States citizens recruited within tion relating to civilian employees, in-
the continental limits of the United cluding positions and employees in the
States whenever it determines that it competitive, excepted, and Senior Ex-
is not feasible to appoint from a civil- ecutive services, in a manner and at
service register. Persons serving under times prescribed by the Director. The
appointments made pursuant to this Director shall establish standards for
section are hereby excluded from the workforce information submissions
operation of the Civil Service Retire- under this section, and agencies shall
ment Act of May 29, 1930, as amended, ensure that their submissions meet
unless eligible for retirement benefits these standards consistent with the
by continuity of service or otherwise. Privacy Act. The Director may exempt
15
from this section a specific agency or agement that are set forth in section
group of employees when the Director 2301(b) of title 5, United States Code.
determines that an exemption is appro-
priate because of special cir- 10.2 Accountability systems.
cumstances. The Director of the Office of Per-
sonnel Management may require an
PART 10AGENCY ACCOUNT- agency to establish and maintain a sys-
ABILITY SYSTEMS; OPM AUTHOR- tem of accountability for merit system
ITY TO REVIEW PERSONNEL MAN- principles that
(1) Sets standards for applying the
AGEMENT PROGRAMS (RULE X) merit system principles,
(2) Measures the agencys effective-
Sec.
10.1 Definitions.
ness in meeting these standards, and
10.2 Accountability systems. (3) Corrects any deficiencies in meet-
10.3 OPM authority to review personnel ing these standards.
management programs and practices.
10.3 OPM authority to review per-
SOURCE: E.O. 13197, 66 FR 7853, Jan. 25, 2001, sonnel management programs and
unless otherwise noted. practices.
10.1 Definitions. The Office of Personnel Management
may review the human resources man-
For purposes of this rule agement programs and practices of any
(a) Agency means an Executive agency and report to the head of the
agency as defined in Rule IX, but does agency and the President on the effec-
not include a Government corporation tiveness of these programs and prac-
or the General Accounting Office; and tices, including whether they are con-
(b) Merit system principles means the sistent with the merit system prin-
principles for Federal personnel man- ciples.
16
SUBCHAPTER BCIVIL SERVICE REGULATIONS
PART 110POSTING NOTICES OF quirement to post the notice continues,

NEW OPM REGULATIONS however, even if supplemental an-
nouncement methods are used.
Sec. (c) Agencies will post notices of the
110.101 What are OPMs Notice and Posting new regulations even if the FEDERAL
System responsibilities? REGISTER comment date has passed.
110.102 What are Agency responsibilities? The public comment period on pro-
posed regulations begins when a notice
AUTHORITY: 5 U.S.C. 1103.
of proposed rulemaking is published in
SOURCE: 69 FR 33535, June 16, 2004, unless the FEDERAL REGISTER, not with the
otherwise noted. posting of the notice described in
110.101(a). The purpose of posting no-
110.101 What are OPMs Notice and
Posting System responsibilities? tice is solely to inform agency per-
sonnel of changes. Agencies are re-
OPM will issue a notice that will pro- quired to post the posting notice even
vide information for Federal agencies, if the formal deadline for comments
employees, managers, and other stake- shown in the preamble of the FEDERAL
holders on each of its new proposed, in- REGISTER notice of rulemaking has
terim, and final regulations. Each no- passed. Agencies should make every
tice will transmit: reasonable effort to minimize delays in
(a) A posting notice that briefly ex- distributing the notice described in
plains the nature of the change, and 110.101 to their field offices.
provides a place for Federal agencies to (d) No fixed posting period. There are
indicate where the full text of the FED- no minimum or maximum time limits
ERAL REGISTER notice will be available on displaying the notice described in
for review. 110.101(a). Each office receiving a no-
(b) A copy of the notice of rule- tice for posting should choose the post-
making that appears in the FEDERAL ing period which provides the best op-
REGISTER or a link to a Web site where portunity to inform managers and em-
the notice of rulemaking appears. ployees of regulatory changes based
upon office layout, geographic disper-
110.102 What are Agency responsibil- sion of employees, and other local fac-
ities? tors.
(a) Agencies will make regulations
available for review by employees, PART 151POLITICAL ACTIVITY OF
managers, and other interested parties. STATE OR LOCAL OFFICERS OR
Federal agencies receiving the notices EMPLOYEES
of rulemaking described in 110.101(b)
will make those regulations available GENERAL PROVISIONS
for review upon request. Each agency
will complete the posting notice de- Sec.
151.101 Definitions.
scribed in 110.101(a) indicating where
and how requests to review these mate- PERMISSIBLE ACTIVITIES
rials should be made. 151.111 Permissible activities.
(b) Agencies will determine posting
locations and, if desired, develop sup- PROHIBITED ACTIVITIES
plemental announcements. Agencies 151.121 Use of official authority; coercion;
will display completed posting notices candidacy; prohibitions.
in a prominent place where the notices 151.122 Candidacy; exceptions.
can be easily seen and read. Agencies AUTHORITY: 5 U.S.C. 1302, 15011508, as
will choose the posting location that amended, Reorganization Plan No. 2 of 1978,
best fits their physical layout. Agen- section 102, 92 Stat. 3783, 3 CFR 1978 Comp. p.
cies may supplement these postings 323; and E.O. 12107, section 1102, 3 CFR 1978
Comp. p. 264.
with announcements in employee news-

letters, agency Web sites, or other SOURCE: 35 FR 16783, Oct. 30, 1970, unless
communication methods. The basic re- otherwise noted.
17
151.101 5 CFR Ch. I (1116 Edition)
GENERAL PROVISIONS PERMISSIBLE ACTIVITIES

151.101 Definitions. 151.111 Permissible activities.
In this part: (a) All State or local officers or em-
(a) State means a State or territory ployees are free to engage in political
or possession of the United States. activity to the widest extent con-
(b) State or local agency means: sistent with the restrictions imposed
(1) The executive branch of a State, by law and this part. A State or local
municipality, or other political sub- officer or employee may participate in
division of a State, or an agency or de- all political activity not specifically
partment thereof; or restricted by law and this part, includ-
(2) The executive branch of the Dis- ing candidacy for office in a non-
trict of Columbia, or an agency or de- partisan election and candidacy for po-
partment thereof. litical party office.
(c) Federal agency means an executive
agency or other agency of the United [40 FR 42733, Sept. 16, 1975]
States, but does not include a member
bank of the Federal Reserve System; PROHIBITED ACTIVITIES
(d) State or local officer or employee
means an individual employed by a 151.121 Use of official authority; co-
ercion; candidacy; prohibitions.
State or local agency whose principal
employment is in connection with an A State or local officer or employee
activity which is financed in whole or may not
in part by loans or grants made by the (a) Use his official authority or influ-
United States or a Federal agency but ence for the purpose of interfering with
does not include or affecting the result of an election or
(1) An individual who exercises no a nomination for office; or
functions in connection with that ac- (b) Directly or indirectly coerce, at-
tivity. tempt to coerce, command, or advise a
(2) An individual employed by an edu- State or local officer or employee to
cational or research institution, estab- pay, lend, or contribute anything of
lishment, agency, or system which is value to a political party, committee,
supported in whole or in part by organization, agency, or person for a
(i) A State or political subdivision political purpose.
thereof; (c) Be a candidate for elective office
(ii) The District of Columbia; or if the salary of the employee is paid
(iii) A recognized religious, philan- completely, directly or indirectly, by
thropic, or cultural organization. loans or grants made by the United
(e) Political party means a National States or a Federal agency.
political party, a State political party,
and an affiliated organization. [40 FR 42733, Sept. 16, 1975, as amended at 79
(f) Election includes a primary, spe- FR 25484, May 5, 2014]
cial, and general election.
151.122 Candidacy; exceptions.
(g) Nonpartisan election means an
election at which none of the can- Section 151.121(c) does not apply to
didates is to be nominated or elected as (a) The Governor or Lieutenant Gov-
representing a political party any of ernor of a State or an individual au-
whose candidates for Presidential elec- thorized by law to act as Governor;
tor receives votes in the last preceding (b) The Mayor of a city;
election at which Presidential electors (c) A duly elected head of an execu-
were selected. tive department of a State, munici-
(h) Partisan when used as an adjective pality, or the District of Columbia,
refers to a political party. who is not classified under a merit or
(i) Elective office means any office civil service system of a State, munici-
which is voted upon at an election as pality, or the District of Columbia;
defined at 151.101(f), above, but does (d) An individual holding elective of-
not include political party office.
fice;
[40 FR 42733, Sept. 16, 1975, as amended at 79 (e) Activity in connection with a
FR 25484, May 5, 2014] nonpartisan election; or
18
(f) Candidacy for a position of officer (c) No OPM official will refuse to
of a political party, delegate to a polit- confirm the existence or non-existence
ical party convention, member of a Na- of any document requested under the
tional, State, or local committee of a Freedom of Information Act or the
political party, or any similar position. mandatory review provisions of the Ex-
[40 FR 42733, Sept. 16, 1975, as amended at 40 ecutive order, unless the fact of its ex-
FR 47101, Oct. 8, 1975; 79 FR 25484, May 5, istence or non-existence would itself be
2014] classifiable under the Executive order.
OPM Administrative Manual chapter
PART 175OPM MANDATORY RE- 22, covering OPM policies and proce-
VIEW OF CLASSIFIED DOCU- dures relating to classified information
MENTS or material is available for inspection
by the public in the OPM Library,
Sec. room 5H27, 1900 E. St., NW., Wash-
175.101 Policy. ington, DC, or in one of the 10 OPM re-
175.102 Requests for the declassification of gional offices in the following cities:
documents. Atlanta, Boston, Chicago, Dallas, Den-
AUTHORITY: E.O. 12065, 43 FR 28949. ver, New York, Philadelphia, St. Louis,
San Francisco and Seattle.
175.101 Policy.
[45 FR 995, Jan. 4, 1980]
The Office of Personnel Management
bases its procedures for handling na- PART 177ADMINISTRATIVE
tional security information on Execu-
tive Order 12065, National Security In-
CLAIMS UNDER THE FEDERAL
formation, and Information Security TORT CLAIMS ACT
Oversight Office Directive No. 1 con-
cerning national security information. Sec.
177.101 Scope of regulations.
[45 FR 995, Jan. 4, 1980] 177.102 Administrative claim; when pre-
sented; appropriate OPM office.
175.102 Requests for the declassifica- 177.103 Administrative claim; who may file.
tion of documents. 177.104 Investigations.
Any Federal agency, Government 177.105 Administrative claim; evidence and
employee or member of the public has information to be submitted.
the right to request a mandatory re- 177.106 Authority to adjust, determine,
view of any classified document, held compromise, and settle.
by the Office of Personnel Manage- 177.107 Limitations on authority.
ment, which was classified for national 177.108 Referral to Department of Justice.
security purposes by the Civil Service 177.109 Final denial of claim.
Commission. The Office of Personnel 177.110 Action on approved claim.
Management does not have the author- AUTHORITY: 28 U.S.C. 2672; 28 CFR 14.11.
ity to classify documents.
SOURCE: 65 FR 44945, July 20, 2000, unless
(a) Requests for mandatory declas- otherwise noted.
sification review should be addressed to
the Director, Office of Management, or 177.101 Scope of regulations.
the designee of the Director, who will
act on requests within 60 days. Re- The regulations in this part apply
quests need not be made in any special only to claims presented or filed with
form but shall, as specified in section the Office of Personnel Management
3501 of the Executive order, reason- (OPM) under the Federal Tort Claims
ably describe the information. Act, as amended, for money damages
(b) Based upon the review, the docu- against the United States for injury to
ment, or any reasonably segregable or loss of property or personal injury
portion thereof that no longer requires or death caused by the negligent or
protection under the Executive order, wrongful act or omission of an officer
shall be declassified and released un- or employee of OPM while acting with-
less withholding is otherwise war- in the scope of his or her office or em-
ranted under applicable law. ployment.
19
177.102 5 CFR Ch. I (1116 Edition)
177.102 Administrative claim; when views and to coordinate the results, or

presented; appropriate OPM office. to have the investigation conducted by
(a) For purposes of the provisions of the designated Federal agency. But, in
28 U.S.C. 2401(b), 2672, and 2675, a claim either event, the designated agency
is deemed to have been presented when will be responsible for the final deter-
OPM receives from a claimant, his or mination of the claim.
her authorized agent or legal rep- (e) A claim presented in compliance
resentative, an executed Standard with paragraph (a) of this section may
Form 95 (Claim for Damage, Injury or be amended by the claimant at any
Death), or other written notification of time prior to final agency action or
an incident, accompanied by a claim prior to the exercise of the claimants
for money damages stating a sum cer- option under 28 U.S.C. 2675(a). Amend-
tain (a specific dollar amount) for in- ments must be in writing and signed by
jury to or loss of property, personal in- the claimant or his or her authorized
jury, or death alleged to have occurred agent or legal representative. Upon
as a result of the incident. timely filing of an amendment to a
(b) All claims filed under the Federal pending claim, OPM will have 6 months
Tort Claims Act as a result of the al- in which to make a final disposition of
leged negligence or wrongdoing of OPM the claim as amended and claimants
or its employees will be mailed or de- option under 28 U.S.C. 2675 (a) will not
livered to the Office of the General accrue until 6 months after the filing
Counsel, United States Office of Per- of an amendment.
sonnel Management, 1900 E Street NW,
Washington, DC 204151300. 177.103 Administrative claim; who
(c) A claim must be presented to the may file.
Federal agency whose activities gave (a) A claim for injury to or loss of
rise to the claim. A claim that should property may be presented by the
have been presented to OPM, but was owner of the property, his or her au-
mistakenly addressed to or filed with thorized agent or legal representative.
another Federal agency, is presented to (b) A claim for personal injury may
OPM, as required by 28 U.S.C. 2401(b), be presented by the injured person, his
as of the date the claim is received by or her authorized agent or legal rep-
OPM. When a claim is mistakenly pre- resentative.
sented to OPM, OPM will transfer the (c) A claim based on death may be
claim to the appropriate Federal agen- presented by the executor or adminis-
cy, if ascertainable, and advise the trator of the decedents estate or by
claimant of the transfer, or return the any other person legally entitled to as-
claim to the claimant. sert a claim under the applicable State
(d) A claimant whose claim arises law.
from an incident involving OPM and (d) A claim for loss totally com-
one or more other Federal agencies, pensated by an insurer with the rights
will identify each agency to which the to subrogate may be presented by the
claim has been submitted at the time insurer. A claim for loss partially com-
the claim is presented to OPM. OPM pensated by an insurer with the rights
will contact all other affected Federal to subrogate may be presented by the
agencies in order to designate the sin- insurer or the insured individually, as
gle agency that will investigate and de- their respective interests appear, or
cide the merits of the claim. In the jointly. When an insurer presents a
event a designation cannot be agreed claim asserting the rights to sub-
upon by the affected agencies, the De- rogate, he or she will present with the
partment of Justice will be consulted claim appropriate evidence that he or
and will designate an agency to inves- she has the rights to subrogate.
tigate and determine the merits of the (e) A claim presented by an agent or
claim. The designated agency will no- legal representative must be presented
tify the claimant that all future cor- in the name of the claimant, be signed
respondence concerning the claim must by the agent or legal representative,
be directed to that Federal agency. All show the title or legal capacity of the
involved Federal agencies may agree to person signing, and be accompanied by
conduct their own administrative re- evidence of his or her authority to
20
present a claim on behalf of the claim- be required to submit the following

ant as agent, executor, administrator, evidence or information:
parent, guardian, or other representa- (1) A written report by the attending
tive. physician or dentist setting forth the
nature and extent of the injury, nature
177.104 Investigations. and extent of treatment, any degree of
OPM may investigate, or may re- temporary or permanent disability, the
quest any other Federal agency to in- prognosis, period of hospitalization,
vestigate, a claim filed under this part. and any diminished earning capacity.
In addition, the claimant may be re-
177.105 Administrative claim; evi-
dence and information to be sub- quired to submit to a physical or men-
mitted. tal examination by a physician em-
ployed by OPM or another Federal
(a) Death. In support of a claim based
agency. On written request, OPM will
on death, the claimant may be required
make available to the claimant a copy
to submit the following evidence or in-
of the report of the examining physi-
formation:
(1) An authenticated death certifi- cian employed by the United States,
cate or other competent evidence show- provided the claimant has furnished
ing cause of death, date of death, and OPM with the report referred to in the
age of the decedent. first sentence of this subparagraph. In
(2) Decedents employment or occu- addition, the claimant must have made
pation at time of death, including his or agrees to make available to OPM all
or her monthly or yearly salary or other physicians reports previously or
earnings (if any), and the duration of thereafter made of the physical or
his or her last employment or occupa- mental condition that is the subject
tion. matter of his or her claim.
(3) Full names, addresses, birth date, (2) Itemized bills for medical, dental,
kinship, and marital status of the dece- and hospital expenses incurred, or
dents survivors, including identifica- itemized receipts of payment for such
tion of those survivors who were de- expenses.
pendent for support from the decedent (3) If the prognosis reveals the neces-
at the time of death. sity for future treatment, a statement
(4) Degree of support afforded by the of expected expenses for such treat-
decedent to each survivor dependent on ment.
him or her for support at the time of (4) If a claim is made for loss of time
death. from employment, a written statement
(5) Decedents general physical and from his or her employer showing ac-
mental condition before death. tual time lost from employment,
(6) Itemized bills for medical and bur- whether he or she is a full-or part-time
ial expenses incurred by reason of the employee, and wages or salary actually
incident causing death, or itemized re- lost.
ceipts of payment for such expenses.
(5) If a claim is made for loss of in-
(7) If damages for pain and suffering
come and the claimant is self-em-
before death are claimed, a physicians
ployed, documentary evidence showing
detailed statement specifying the inju-
the amount of earnings actually lost.
ries suffered, duration of pain and suf-
fering, any drugs administered for (6) Any other evidence or information
pain, and the decedents physical con- which may have a bearing on either the
dition in the interval between injuries responsibility of the United States for
and death. the personal injury or the damages
(8) Any other evidence or information claimed.
which may have a bearing on either the (c) Property damage. In support of a
responsibility of the United States for claim for injury to or loss of property,
the death or the amount of damages real or personal, the claimant may be
claimed. required to submit the following evi-
dence or information:
(b) Personal injury. In support of a

claim for personal injury, including (1) Proof of ownership of the prop-
pain and suffering, the claimant may erty.
21
177.106 5 CFR Ch. I (1116 Edition)
(2) A detailed statement of the (2) A question of policy is or may be

amount claimed with respect to each involved; or
item of property. (3) The United States is or may be
(3) An itemized receipt of payment entitled to indemnity or contribution
for necessary repairs or itemized writ- from a third party and OPM is unable
ten estimates of the cost of such re- to adjust the third party claim; or
pairs. (4) The compromise of a particular
(4) A statement listing date of pur- claim, as a practical matter, will or
chase, purchase price, and salvage may control the disposition of a re-
value, where repair is economical. lated claim in which the amount to be
(5) Any other evidence or information paid may exceed $25,000.
(c) An administrative claim may be
which may have a bearing on either the
adjusted, determined, compromised, or
responsibility of the United States for
settled under 28 U.S.C. 2672, and this
the injury to or loss of property or the
part, only after consultation with the
damages claimed.
Department of Justice when, OPM is
177.106 Authority to adjust, deter- informed or is otherwise aware that
mine, compromise, and settle. the United States or an employee,
agent, or cost-type contractor of the
(a) The General Counsel of OPM, or United States is involved in litigation
his or her designee, is delegated au- based on a claim arising out of the
thority to consider, ascertain, adjust, same incident or transaction.
determine, compromise, and settle
claims under the provisions of 28 U.S.C. 177.108 Referral to Department of
2672, and this part. The General Coun- Justice.
sel, in his or her discretion, has the au- When Department of Justice ap-
thority to further delegate the respon- proval or consultation is required, or
sibility for adjudicating, considering, the advice of the Department of Jus-
adjusting, compromising, and settling tice is otherwise to be requested, under
any claim submitted under the provi- 177.107, the written referral or request
sions of 28 U.S.C. 2672, and this part, will be transmitted to the Department
that is based on the alleged negligence of Justice by the General Counsel of
or wrongful act or omission of an OPM OPM or his or her designee.
employee, with the exception of claims
involving personal injury. All claims 177.109 Final denial of claim.
involving personal injury will be adju- Final denial of an administrative
dicated, considered, adjusted, com- claim must be in writing and sent to
promised and settled by the Office of the claimant, his or her attorney, or
the General Counsel. legal representative by certified or reg-
istered mail. The notification of final
177.107 Limitations on authority.
denial may include a statement of the
(a) An award, compromise, or settle- reasons for the denial. But, it must in-
ment of a claim under 28 U.S.C. 2672, clude a statement that, if the claimant
and this part, in excess of $25,000 can be is dissatisfied with the OPM action, he
effected only with the prior written ap- or she may file suit in an appropriate
proval of the Attorney General or his United States district court not later
or her designee. For purposes of this than 6 months after the date of mailing
paragraph, a principal claim and any of the notification.
derivative or subrogated claim will be
treated as a single claim. 177.110 Action on approved claim.
(b) An administrative claim may be (a) Payment of a claim approved
adjusted, determined, compromised, or under this part is contingent on claim-
settled under this part, only after con- ants execution of a Standard Form 95
sultation with the Department of Jus- (Claim for Damage, Injury or Death); a
tice when, in the opinion of the Gen- claims settlement agreement; and a
eral Counsel of OPM, or his or her des- Standard Form 1145 (Voucher for Pay-
ignee: ment), as appropriate. When a claimant

(1) A new precedent or a new point of is represented by an attorney, the
law is involved; or Voucher for Payment will designate
22
both the claimant and his or her attor- Subpart AAdministrative

ney as payees, and the check will be de- ClaimsCompensation and
livered to the attorney, whose address Leave, Deceased Employees
is to appear on the Voucher for Pay-
Accounts and Proceeds of
ment.
Canceled Checks for Vet-
(b) Acceptance by the claimant, his
or her agent, or legal representative, of
erans Benefits Payable to De-
an award, compromise, or settlement ceased Beneficiaries
made under 28 U.S.C. 2672 or 28 U.S.C.
2677 is final and conclusive on the AUTHORITY: 31 U.S.C. 3702; 5 U.S.C. 5583; 38
claimant, his or her agent or legal rep- U.S.C. 5122; Pub. L. No. 10453, 211, Nov. 19,
1995; E.O. 12107.
resentative, and any other person on
whose behalf or for whose benefit the 178.101 Scope of subpart.
claim has been presented, and con-
stitutes a complete release of any (a) Claims covered. This subpart pre-
claim against the United States and scribes general procedures applicable
against any employee of the Federal to claims against the United States
Government whose act or omission that may be settled by the Director of
the Office of Personnel Management
gave rise to the claim, by reason of the
pursuant to 31 U.S.C. 3702, 5 U.S.C. 5583
same subject matter.
and 38 U.S.C. 5122. In general, these
claims involve Federal employees
PART 178PROCEDURES FOR compensation and leave and claims for
SETTLING CLAIMS proceeds of canceled checks for vet-
erans benefits payable to deceased
Subpart AAdministrative ClaimsCom- beneficiaries.
pensation and Leave, Deceased Em- (b) Claims not covered. This subpart
ployees Accounts and Proceeds of does not apply to claims that are under
Canceled Checks for Veterans Bene- the exclusive jurisdiction of adminis-
fits Payable to Deceased Beneficiaries trative agencies pursuant to specific
statutory authority or claims con-
Sec.
178.101 Scope of subpart.
cerning matters that are subject to ne-
178.102 Procedures for submitting claims.
gotiated grievance procedures under
178.103 Claim filed by a claimants rep- collective bargaining agreements en-
resentative. tered into pursuant to 5 U.S.C. 7121(a).
178.104 Statutory limitations on claims. Also, these procedures do not apply to
178.105 Basis of claim settlements. claims under the Fair Labor Standards
178.106 Form of claim settlements. Act (FLSA). Procedures for FLSA
178.107 Finality of claim settlements. claims are set out in part 551 of this
chapter.
Subpart BSettlement of Accounts for
Deceased Civilian Officers and Employees 178.102 Procedures for submitting
claims.
178.201 Scope of subpart.
(a) Content of claims. Except as pro-
vided in paragraph (b) of this section, a
178.203 Designation of beneficiary.
claim shall be submitted by the claim-
178.204 Order of payment precedence.
ant in writing and must be signed by
178.205 Procedures upon death of employee.
178.206 Return of unnegotiated Government
the claimant or by the claimants rep-
checks. resentative. While no specific form is
178.207 Claims settlement jurisdiction. required, the request should describe
178.208 Applicability of general procedures. the basis for the claim and state the
amount sought. The claim should also
SOURCE: 62 FR 68139, Dec. 31, 1997, unless include:
otherwise noted.
(1) The name, address, telephone
number and facsimile machine number,
if available, of the claimant;

(2) The name, address, telephone
number and facsimile machine number,
23
178.103 5 CFR Ch. I (1116 Edition)
if available, of the agency employee 178.103 Claim filed by a claimants

who denied the claim; representative.
(3) A copy of the denial of the claim; A claim filed by a claimants rep-
and, resentative must be supported by a
(4) Any other information which the duly executed power of attorney or
claimant believes OPM should con- other documentary evidence of the rep-
sider. resentatives right to act for the claim-
(b) Agency submissions of claims. At ant.
the discretion of the agency, the agen-
cy may forward the claim to OPM on 178.104 Statutory limitations on
the claimants behalf. The claimant is claims.
responsible for ensuring that OPM re- (a) Statutory limitations relating to
ceives all the information requested in claims generally. Except as provided in
paragraph (a) of this section. paragraphs (b) and (c) of this section or
(c) Administrative report. At OPMs as otherwise provided by law, all
discretion, OPM may request the agen- claims against the United States Gov-
cy to provide an administrative report. ernment are subject to the 6-year stat-
This report should include: ute of limitations contained in 31
(1) The agencys factual findings; U.S.C. 3702(b). To satisfy the statutory
(2) The agencys conclusions of law limitation, a claim must be received by
with relevant citations; the Office of Personnel Management,
(3) The agencys recommendation for or by the department or agency out of
disposition of the claim; whose activities the claim arose, with-
(4) A complete copy of any regula- in 6 years from the date the claim ac-
tion, instruction, memorandum, or pol- crued. The claimant is responsible for
icy relied upon by the agency in mak- proving that the claim was filed within
ing its determination; the applicable statute of limitations.
(5) A statement that the claimant is (b) Claims under the Fair Labor Stand-
ards Act. Claims arising under the
or is not a member of a collective bar-
FLSA, 29 U.S.C. 207, et seq., must be re-
gaining unit, and if so, a statement
ceived by the Office of Personnel Man-
that the claim is or is not covered by a
agement, or by the department or
negotiated grievance procedure that
agency out of whose activity the claim
specifically excludes the claim from
arose, within the time limitations
coverage; and
specified in the FLSA.
(6) Any other information that the (c) Other statutory limitations. Stat-
agency believes OPM should consider. utes of limitation other than that iden-
(d) Canceled checks for veterans bene- tified in paragraph (a) of this section
fits. Claims for the proceeds of canceled may apply to certain claims. Claim-
checks for veterans benefits payable to ants are responsible for informing
deceased beneficiaries must be accom- themselves regarding other possible
panied by evidence that the claimant is statutory limitations.
the duly appointed representative of
the decedents estate and that the es- 178.105 Basis of claim settlements.
tate will not escheat. The burden is upon the claimant to
(e) Where to submit claims. (1) All establish the timeliness of the claim,
claims under this section should be the liability of the United States, and
sent to the Program Manager, Office of the claimants right to payment. The
Merit Systems Oversight and Effective- settlement of claims is based upon the
ness, Room 7671, Office of Personnel written record only, which will include
Management, 1900 E Street NW., Wash- the submissions by the claimant and
ington, DC 20415. Telephone inquiries the agency. OPM will accept the facts
regarding these claims may be made to asserted by the agency, absent clear
(202) 6067948. and convincing evidence to the con-
(2) FLSA claims should be sent to the trary.
appropriate OPM Oversight Division as
provided in part 551 of this chapter. 178.106 Form of claim settlements.
[62 FR 68139, Dec. 31, 1997, as amended at 65 OPM will send a settlement to the
FR 40967, July 3, 2000] claimant advising whether the claim
24
may be allowed in whole or in part. If imbursement of travel expenses, in-

OPM requested an agency report or if cluding incidental and miscellaneous
the agency forwarded the claim on be- expenses which are incurred in connec-
half of the claimant, OPM also will tion with the travel and for which re-
send the agency a copy of the settle- imbursement is due;
ment. (2) All allowances upon change of of-
ficial station;
178.107 Finality of claim settlements. (3) All quarters and cost-of-living al-
(a) The OPM settlement is final; no lowances and overtime or premium
further administrative review is avail- pay;
able within OPM. (4) Amounts due for payment of cash
(b) Nothing is this subpart limits the awards for employees suggestions;
right of a claimant to bring an action (5) Amounts due as refund of salary
in an appropriate United States court. deductions for United States Savings
bonds;
Subpart BSettlement of Ac- (6) Payment for all accumulated and
current accrued annual or vacation
counts for Deceased Civilian leave equal to the pay the decedent
Officers and Employees would have received had he or she lived
and remained in the service until the
AUTHORITY: 5 U.S.C. 5581, 5582, 5583. expiration of the period of such annual
or vacation leave;
178.201 Scope of subpart. (7) The amounts of all checks drawn
(a) Accounts covered. This subpart in payment of such compensation
prescribes forms and procedures for the which were not delivered by the Gov-
prompt settlement of accounts of de- ernment to the officer or employee
ceased civilian officers and employees during his or her lifetime or of any un-
of the Federal Government and of the negotiated checks returned to the Gov-
government of the District of Columbia ernment because of the death of the of-
(including wholly owned and mixed- ficer or employee; and
ownership Government corporations), (8) Retroactive pay under 5 U.S.C.
as stated in 5 U.S.C. 5581, 5582, 5583. 5344(b)(2).
(b) Accounts not covered. This subpart
does not apply to accounts of deceased 178.203 Designation of beneficiary.
officers and employees of the Federal (a) Agency notification. The employing
land banks, Federal intermediate cred- agency shall notify each employee of
it banks, or regional banks for coopera- his or her right to designate a bene-
tives (see 5 U.S.C. 5581(1)). Also, these ficiary or beneficiaries to receive
procedures do not apply to payment of money due, and of the disposition of
unpaid balance of salary or other sums money due if a beneficiary is not des-
due deceased Senators or Members of ignated. An employee may change or
the House of Representatives or their revoke a designation at any time under
officers or employees (see 2 U.S.C. 36a, regulations promulgated by the Direc-
38a). tor of the Office of Personnel Manage-
ment or his or her designee.
178.202 Definitions. (b) Designation Form. Standard Form
(a) The term deceased employees as 1152, Designation of Beneficiary, Un-
used in this part includes former civil- paid Compensation of Deceased Civil-
ian officers and employees who die sub- ian Employee, is prescribed for use by
sequent to separation from the employ- employees in designating a beneficiary
ing agency. and in changing or revoking a previous
(b) The term money due means the designation; each agency will furnish
pay, salary, or allowances due on ac- the employee a Standard Form 1152
count of the services of the decedent upon request. In the absence of the pre-
for the Federal Government or the gov- scribed form, however, any designa-
ernment of the District of Columbia. It tion, change, or cancellation of bene-
includes, but is not limited to: ficiary witnessed and filed in accord-
(1) All per diem instead of subsist- ance with the general requirements of
ence, mileage, and amounts due in re- this part will be acceptable.
25
178.204 5 CFR Ch. I (1116 Edition)
(c) Who may be designated. An em- (d) Fourth, if none of the above, to
ployee may designate any person or the parents of the deceased employee
persons as beneficiary. The term person or the survivor of them;
or persons as used in this part includes (e) Fifth, if none of the above, to the
a legal entity or the estate of the de- duly appointed legal representative of
ceased employee. the estate of the deceased employee;
(d) Executing and filing a designation and
of beneficiary form. The Standard Form (f) Sixth, if none of the above, to the
1152 must be executed in duplicate by person or persons entitled under the
the employee and filed with the em- laws of the domicile of the employee at
ploying agency where the proper officer the time of his or her death.
will sign it and insert the date of re- 178.205 Procedures upon death of
ceipt in the space provided on each employee.
part, file the original, and return the
(a) Claim form. As soon as practicable
duplicate to the employee. When a des-
after the death of an employee, the
ignation of beneficiary is changed or
agency in which the employee was last
revoked, the employing agency should employed will request, in the order of
return the earlier designation to the precedence outlined in 178.204, the ap-
employee, keeping a copy of only the propriate person or persons to execute
current designation on file. Standard Form 1153, Claim for Unpaid
(e) Effective period of a designation. A Compensation of Deceased Civilian
properly executed and filed designation Employee.
of beneficiary will be effective as long (b) Claims involving minors or
as employment by the same agency incompetents. If a guardian or com-
continues. If an employee resigns and mittee has been appointed for a minor
is reemployed, or is transferred to an- or incompetent appearing entitled to
other agency, the employee must exe- unpaid compensation, the claim should
cute another designation of beneficiary be supported by a certificate of the
form in accordance with paragraph (d) court showing the appointment and
of this section. A new designation of qualification of the claimant in such
beneficiary is not required, however, capacity. If no guardian or committee
when an employees agency or site, has been or will be appointed, the ini-
function, records, equipment, and per- tial claim should be supported by a
sonnel are absorbed by another agency. statement showing:
(1) Claimants relationship to the
178.204 Order of payment prece- minor or incompetent, if any;
dence. (2) The name and address of the per-
To facilitate the settlement of the son having care and custody of the
accounts of the deceased employees, minor or incompetent;
money due an employee at the time of (3) That any moneys received will be
applied to the use and benefit of the
the employees death shall be paid to
minor or incompetent; and
the person or persons surviving at the
(4) That the appointment of a guard-
date of death, in the following order of
ian or committee is not contemplated.
precedence, and the payment bars re-
covery by another person of amounts 178.206 Return of unnegotiated Gov-
so paid: ernment checks.
(a) First, to the beneficiary or bene- All unnegotiated United States Gov-
ficiaries designated by the employee in ernment checks drawn to the order of a
a writing received in the employing decedent representing money due as de-
agency prior to the employees death; fined in 178.202, and in the possession
(b) Second, if there is no designated of the claimant, should be returned to
beneficiary, to the surviving spouse of the employing agency concerned.
the employee; Claimants should be instructed to re-
(c) Third, if none of the above, to the turn any other United States Govern-
child or children of the employee and ment checks drawn to the order of a
descendants of deceased children by decedent, such as veterans benefits, so-
representation; cial security benefits, or Federal tax
26
Office of Personnel Management Pt. 179
refunds, to the agency from which the PART 179CLAIMS COLLECTION

checks were received, with a request STANDARDS
for further instructions from that
agency. Subpart AGeneral Provisions and
Administration
178.207 Claims settlement jurisdic-
tion. Sec.
(a) District of Columbia and Govern- 179.101 General collection standards.
ment corporations. Claims for unpaid 179.102 Delegation of authority.
compensation due deceased employees
Subpart BSalary Offset
of the government of the District of
Columbia shall be paid by the District 179.201 Purpose.
of Columbia, and those of Government 179.202 Scope.
corporations or mixed ownership Gov- 179.203 Definitions.
ernment corporations may be paid by 179.204 Applicability of regulations.
the corporations. 179.205 Waiver requests and claims to the
(b) Office of Personnel Management. General Accounting Office.
179.206 Notice requirements before offset.
Each agency shall pay undisputed
179.207 Hearing.
claims for the compensation due a de-
179.208 Certification.
ceased employee. Except as provided in 179.209 Voluntary repayment agreement as
paragraph (a) of this section, disputed alternative to salary offset.
claims for money due deceased employ- 179.210 Special review.
ees of the Federal Government will be 179.211 Notice of salary offset.
submitted to the Office of Merit Sys- 179.212 Procedures for salary offset.
tems Oversight and Effectiveness, in 179.213 Coordinating salary offset with
accordance with 178.102 of subpart A. other agencies.
For example: 179.214 Interest, penalties and administra-
(1) When doubt exists as to the tive costs.
amount or validity of the claim; 179.215 Refunds.
179.216 Request for the services of a hearing
(2) When doubt exists as to the per- official when the creditor agency is not
son(s) properly entitled to payment; or OPM.
(3) When the claim involves 179.217 Non-waiver of rights by payments.
uncurrent checks. Uncurrent checks are 179.218 Additional administrative collection
unnegotiated and/or undelivered action.
checks for money due the decedent
which have not been paid by the end of Subpart CAdministrative Offset
the fiscal year after the fiscal year in 179.301 Scope of regulations.
which the checks were issued. The 179.302 Definitions.
checks, if available, should accompany 179.303 General.
the claims. 179.304 Notification procedures.
(c) Payment of claim. Claims for 179.305 Agency review.
money due will be paid by the appro- 179.306 Written agreement for repayment.
priate agency only after settlement by 179.307 Administrative offset.
the Office of Merit Systems Oversight 179.308 Accelerated procedures.
and Effectiveness occurs. 179.309 Additional administrative proce-
dures.
[62 FR 68139, Dec. 31, 1997, as amended at 65
FR 40967, July 3, 2000] Subpart DAdministrative Wage
Garnishment
178.208 Applicability of general pro-
cedures. 179.401 Administrative wage garnishment.
When not in conflict with this sub- AUTHORITY: 31 U.S.C. 952; 5 U.S.C. 1103; Re-
part, the provisions of subpart A of this organization Plan No. 2 of 1978; 5 U.S.C. 5514;
part relating to procedures applicable 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.
to claims generally are also applicable

to the settlement of account of de-
ceased civilian officers and employees.
27
179.101 5 CFR Ch. I (1116 Edition)
Subpart AGeneral Provisions 257), and, the Lighthouse Service Wid-

and Administration ows Annuity Act (64 Stat. 465).
[59 FR 35216, July 11, 1994]
179.101 General collection standards.
The general standards and procedures Subpart BSalary Offset
governing the collection, compromise,
termination, and referral to the De- SOURCE: 59 FR 35216, July 11, 1994, unless
partment of Justice of claims for otherwise noted.
money and property that are pre-
scribed in the regulations issued joint- 179.201 Purpose.
ly by the General Accounting Office The purpose of the Debt Collection
and the Department of Justice pursu- Act of 1982 (Pub. L. 97365), is to pro-
ant to the Federal Claims Collection vide a comprehensive statutory ap-
Act of 1966 (4 CFR part 101 et seq.), proach to the collection of debts due
apply to the administrative claim col- the Federal Government. These regula-
lection activities of OPM. tions implement section 5 of the Act
[33 FR 12406, Sept. 4, 1968]
which authorizes the collection of
debts owed by Federal employees to
179.102 Delegation of authority. the Federal Government by means of
salary offset, except that no claim may
(a) The Chief Financial Officer and be collected by such means if out-
his or her delegates are designated by standing for more than 10 years after
the Director and authorized to perform the agencys right to collect the debt
all the duties for which the Director is first accrued, unless facts material to
responsible under the Debt Collection the Governments right to collect were
Act of 1982 and Office of Personnel not known, and could not reasonably
Management regulations with the ex- have been known, by the official or of-
ception of debts arising from the Civil ficials who were charged with the re-
Service Retirement and Disability sponsibility for discovery and collec-
Fund, the Employees Life Insurance tion of such debts. These regulations
Fund, the Retired Federal Employees are consistent with the regulations on
Health Benefits Act (74 Stat. 849), and salary offset published by the Office of
the Employees Health Benefits Fund. Personnel Management (OPM) on July
However, the Chief Financial Officer 3, 1984 (49 FR 27470) in 5 CFR part 550,
and his or her delegates will request a subpart K.
review by the General Counsel or his or
her designee for all claims processed 179.202 Scope.
(in amounts of $2500 or more) for com- (a) These regulations provide proce-
promise, suspension, and termination dures for the collection of monies from
of collection action. a Federal employees pay by salary off-
(b) The Associate Director for Retire- set to satisfy certain debts owed the
ment and Insurance and his or her dele- Government.
gates are designated by the Director (b) These regulations apply to all col-
and authorized to perform all the du- lections by the Director of OPM (ex-
ties for which the Director is respon- cept collections involving debts be-
sible under the Debt Collection Act of cause of payments made from the Civil
1982 and Office of Personnel Manage- Service Retirement and Disability
ment regulations on debts caused by Fund, payments made under the Re-
payments from the Civil Service Re- tired Federal Employees Health Bene-
tirement and Disability Fund (sub- fits Act (74 Stat. 849), the Panama
chapter III of chapter 83 or chapter 84), Canal Construction Annuity Act and
claims under the provisions of the Fed- the Lighthouse Service Widows Annu-
eral Employees Life Insurance Fund ity Act and payments or premiums re-
(chapter 87), the Retired Federal Em- lating to the Federal Employees Life
ployees Health Benefits Act (74 Stat. Insurance Fund or the Federal Employ-
849), the Employees Health Benefits ees Health Benefits Fund) from:
Fund (chapter 89), the Panama Canal (1) Federal employees who owe debts
Construction Annuity Act (58 Stat. to OPM; and
28
(2) OPM employees who owe debts to (4) An agency of the legislative
other agencies. branch, including the U.S. Senate and
(c) These regulations do not apply to the U.S. House of Representatives; and
debts or claims arising under the Inter- (5) Other independent establishments
nal Revenue Code of 1954, as amended that are entities of the Federal Govern-
(26 U.S.C. 1 et seq.); the Social Security ment.
Act (42 U.S.C. 301 et seq.); the tariff Certification means a written debt
laws of the United States; or to any claim, as prescribed by 179.209, that is
case where collection of a debt by sal- received from a creditor agency and
ary offset is explicitly provided for or which requests the paying agency to
prohibited by another statute (e.g., offset the salary of an employee.
travel advances in 5 U.S.C. 5705 and em- Claim See debt.
ployee training expenses in 5 U.S.C.
Creditor agency means an agency of
4108).
the Federal Government to which the
(d) Section 179.207 does not apply to
debt is owed. For purposes of this part
any adjustment to pay arising from an
creditor agency includes OPM, unless
employees election of coverage or a
otherwise noted.
change in coverage under a Federal
benefits program requiring periodic de- Debt means money owed by an em-
ductions from pay, if the amount to be ployee of the Federal Government to
recovered was accumulated over four an agency of the Federal Government,
pay periods or less. from sources which include loans in-
(e) Nothing in these regulations pre- sured or guaranteed by the United
cludes the compromise, suspension, or States and all other amounts due the
termination of collection actions, Government from fees, leases, rents,
where appropriate, under the standards royalties, services, sales of real or per-
implementing the Federal Claims Col- sonal property, overpayments, pen-
lection Act (31 U.S.C. 3711 et seq., 4 CFR alties, damages, interests, fines and
parts 101105, 38 CFR 1.900 et seq.). forfeitures (except those arising under
(f) Nothing in these regulations pre- the Uniform Code of Military Justice)
cludes an employee from requesting a and all other similar sources.
waiver of the debt under applicable Delinquent means the failure to pay
statute; under the standards and proce- an obligation or debt by the date speci-
dures specified by the Federal Claims fied in the initial notification or appli-
Collection Standards (FCCS); or waiver cable contractual agreement, unless
of salary overpayment under 5 U.S.C. other payment arrangements have been
5584, 10 U.S.C. 2774, or 32 U.S.C. 716, by agreed to by OPM and the debtor by
submitting a subsequent claim to the that date, or if, at any time thereafter,
General Accounting Office in accord- the debtor fails to satisfy the obliga-
ance with procedures established by tions under a payment agreement with
the General Accounting Office. the creditor agency.
Director means the Director of OPM
179.203 Definitions. or his or her designee.
As used in this subpart the following Disposable pay means that part of
definitions shall apply: current basic pay, special pay, incen-
Agency means: tive pay, retired pay, retainer pay, or,
(1) An Executive Agency as defined in the case of an employee not entitled
by section 105 of title 5, United States to basic pay, other authorized pay re-
Code; maining after the deduction of any
(2) A military department as defined amount required by law to be withheld.
by section 102 of title 5, United States OPM shall allow the following deduc-
Code; tions, and any others required by law
(3) An agency or court of the judicial to be withheld, in determining dispos-
branch including a court as defined in able pay subject to salary offset;
section 610 of title 28, United States (1) Federal employment taxes;
Code, the District Court for the North- (2) Amounts mandatorily withheld
ern Mariana Islands and the Judicial for the U.S. Soldiers and Airmens
Panel and Multidistrict Litigation; Home;
29
179.204 5 CFR Ch. I (1116 Edition)
(3) Fines and forfeitures ordered by a issued by the creditor agency, inform-
court martial or by a commanding offi- ing the employee that salary offset will
cer; begin at the next officially established
(4) Federal, state or local income pay interval.
taxes no greater than would be the case Office means the central and regional
if the employee claimed all dependents offices of the Office of Personnel Man-
to which he or she is entitled and such agement.
additional amounts for which the em- Paying agency means the agency of
ployee presents evidence of a tax obli- the Federal Government which em-
gation supporting the additional with- ploys the individual who owes a debt to
holding; an agency of the Federal Government.
(5) Amounts withheld from benefits In some cases, OPM may be both the
payable under title II of the Social Se- creditor agency and the paying agency.
curity Act where the withholding is re- Payroll office means the payroll office
quired by law; in the paying agency which is pri-
(6) Amounts deducted for Medicare; marily responsible for the payroll
(7) Health insurance premiums; records and the coordination of pay
(8) Normal retirement contributions matters with the appropriate personnel
as explained in 5 CFR 581.105(e) (e.g., office with respect to an employee.
Civil Service Retirement deductions, Payroll office, with respect to OPM,
Survivor Benefit Plan or Retired Serv- means the central payroll office.
icemans Family Protection Plan); and Salary offset means an administrative
(9) Normal life insurance premiums offset to collect a debt under 5 U.S.C.
(e.g., Servicemans Group Life Insur- 5514 by deduction(s) at one or more of-
ance and basic Federal Employees ficially established pay intervals from
Group Life Insurance premiums) exclu- the current pay account of an em-
sive of optional life insurance pre- ployee, without his or her consent.
miums. Salary Offset Coordinator means an of-
Employee means a current employee ficial, designated by the Director of
of OPM or other agency, including a OPM, who is responsible for coordi-
current member of the Armed Forces nating debt collection activities for
or Reserve of the Armed Forces of the OPM.
United States.
Waiver means the cancellation, re-
FCCS means the Federal Claims Col-
mission, forgiveness, or non-recovery
lection Standards jointly published by
of a debt allegedly owed by an em-
the Department of Justice and the
ployee to OPM or another agency as
General Accounting Office of 4 CFR
permitted or required by 5 U.S.C. 5584,
101.1 et seq.
10 U.S.C. 2774, 32 U.S.C. 716, or any
Hearing official means an individual
other law.
(including an administrative law judge)
responsible for conducting any hearing 179.204 Applicability of regulations.
with respect to the existence or
amount of a debt claimed, and ren- These regulations are to be followed
dering a decision on the basis of such for all OPM collections (except those
hearing. A hearing official may not be involving retirement, life, and health
under the supervision or control of the insurance debts for recovery by the As-
Director of OPM when OPM is the cred- sociate Director for Retirement and In-
itor agency. surance) in instances where:
Notice of intent to offset or notice of in- (a) OPM is owed a debt by an indi-
tent means a written notice from a vidual currently employed by another
creditor agency to an employee that agency;
states the creditor agencys determina- (b) OPM is owed a debt by an indi-
tion that the employee owes a debt to vidual who is a current employee of
the creditor agency and apprises the OPM; or
employee of certain administrative (c) OPM currently employs an indi-
rights. vidual who owes a debt to another Fed-
Notice of salary offset means a written eral agency. Upon receipt of proper cer-
notice from the paying agency to an tification from the creditor agency,
employee after a certification has been OPM will offset the debtor-employees
30
salary in accordance with these regula- quest and to receive copies of such
tions. records if personal inspection is im-
practical;
179.205 Waiver requests and claims (6) If not previously provided, the op-
to the General Accounting Office. portunity to establish a schedule for
These regulations do not preclude an the voluntary repayment of the debt
employee from requesting waiver of an through offset or to enter into an
overpayment under 5 U.S.C. 5584, 10 agreement to establish a schedule for
U.S.C. 2774, 32 U.S.C. 716, or in any way repayment of the debt in lieu of offset
questioning the amount or validity of a (4 CFR 102.2(e)). The agreement must
debt by submitting a subsequent claim contain terms agreeable to the Office
to the General Accounting Office in ac- and must be in such form that it is le-
cordance with the procedures pre- gally enforceable. The agreement
scribed by the General Accounting Of- must:
fice. These regulations do not preclude (i) Be in writing;
an employee from requesting a waiver (ii) Be signed by both the employee
pursuant to other statutory provisions and the creditor agency;
pertaining to the particular debt being (iii) Specify all the terms of the ar-
collected. rangement for payment; and
(iv) Contain a provision accelerating
179.206 Notice requirements before the debt in the event of a default by
offset. the debtor, but such an increase may
(a) Deductions under the authority of not result in a deduction that exceeds
5 U.S.C. 5514 shall not be made unless 15 percent of the employees disposable
the creditor agency provides the em- pay unless the employee has agreed in
ployee with written notice that he/she writing to the deduction of a greater
owes a debt to the Federal government amount (5 CFR 550.1104(i)).
a minimum of 30 calendar days before (7) The right to a hearing conducted
salary offset is initiated. When OPM is by an impartial hearing official (an ad-
the creditor agency, this notice of in- ministrative law judge, or alter-
tent to offset an employees salary natively, a hearing official not under
shall be hand-delivered at work, or sent the supervision or control of the Direc-
by registered mail, return receipt re- tor) with respect to the existence and
quested, to the employees most cur- amount of the debt claimed, or the re-
rent address that is available to the Of- payment schedule (i.e., the percentage
fice and will state: of disposable pay to be deducted each
(1) That the creditor agency has repay period), so long as a petition is
viewed the records relating to the filed by the employee as prescribed in
claim and has determined that a debt 179.207;
is owed, the amount of the debt, and (8) The method and time period for
the facts giving rise to the debt; requesting a hearing;
(2) The creditor agencys intention to (9) The name, address and phone
collect the debt by means of deduction number of an official or employee of
from the employees current disposable the Office who may be contacted con-
pay account until the debt and all ac- cerning procedures for requesting a
cumulated interest are paid in full; hearing;
(3) The amount, frequency, beginning (10) The name and address of the of-
date, and duration of the intended de- fice to which the petition for a hearing
ductions; should be sent;
(4) An explanation of OPMs policy (11) That a timely and properly filed
concerning interest, penalties and ad- petition for hearing will stay the com-
ministrative costs including a state- mencement of collection proceedings (a
ment that such assessments must be timely filing must be received in the
made unless excused in accordance office specified under paragraph (a)(10)
with the FCCS, 4 CFR 101.1 et seq. of this section within 15 calendar days
( 179.214); after receipt of such notice of intent to
(5) The employees right to inspect offset);

and copy all records of the office per- (12) That the Office will initiate cer-
taining to the debt claimed, or to re- tification procedures to implement a
31
179.207 5 CFR Ch. I (1116 Edition)
salary offset (which may not exceed 15 179.207 Hearing.

percent of the employees disposable
(a) Request for hearing. Except as pro-
pay) not less than 30 days from the
vided in paragraph (b) of this section,
date of receipt of the notice of debt,
an employee who desires a hearing con-
unless the employee files a timely peti-
cerning the existence or amount of the
tion for a hearing;
debt or the proposed offset schedule
(13) That a final decision on the hear-
must send such a request to the office
ing (if a hearing is requested) will be
designated in the notice of intent
issued at the earliest practical date,
( 179.207(a)(10)). The request (or peti-
but not later than 60 days after the fil-
tion) for hearing must be received by
ing of the petition requesting the hear-
the designated office not later than 15
ing, unless the employee requests and
calendar days following the employees
the hearing official grants a delay in
receipt of the notice. The employees
the proceedings;
request (or petition) must:
(14) That any knowingly false or friv-
olous statements, representations, or (1) Be signed by the employee;
evidence may subject the employee to; (2) Fully identify and explain with
(i) Disciplinary procedures appro- reasonable specificity all the facts, evi-
priate under chapter 75 of title 5, dence and witnesses, if any, that the
United States code; part 752 of title 5, employee believes support his or her
Code of Federal Regulations; or any position; and
other applicable statute or regulations; (3) Specify whether an oral or paper
(ii) Penalties under the False Claims hearing is requested. If an oral hearing
Act, sections 3729 through 3731 of title is desired, the request should explain
31, United States Code, or any other why the matter cannot be resolved by
applicable statutory authority; and review of the documentary evidence
(iii) Criminal penalties under sec- alone (4 CFR 102.3(c)).
tions 286, 287, 1001, and 1002 of title 18, (b) Failure to timely submit. (1) If the
United States code, or any other appli- employee files a petition for a hearing
cable statutory authority; after the expiration of the 15 calendar
(15) Any other rights and remedies day period provided for in paragraph
available to the employee under stat- (a) of this section, the Office may ac-
utes or regulations governing the pro- cept the request if the employee can
gram for which the collection is being show that the delay was the result of
made; circumstances beyond his of her con-
(16) That unless there are applicable trol or failure to receive actual notice
contractual or statutory provisions to of the filing deadline (unless the em-
the contrary, amounts paid on or de- ployee had actual notice of the filing
ducted for the debt, which are later deadline).
waived or found not owed to the United (2) An employee waives the right to a
States, will be promptly refunded to hearing, and will have his or her dis-
the employee; and posable pay offset in accordance with
(17) That proceedings with respect to the Office offset schedule, if the em-
such debt are governed by section 5 of ployee:
the Debt Collection Act of 1982 (5 (i) Fails to file a timely request for a
U.S.C. 5514). hearing unless such failure is excused;
(b) The Office is not required to com- or
ply with paragraph (a) of this section (ii) Fails to appear at an oral hearing
for any adjustment to pay arising of which he or she was notified unless
from: the hearing official determines that
(1) An employees selection of cov- failure to appear was due to cir-
erage or a change in coverage under a cumstances beyond the employees
Federal benefits program requiring control.
periodic deductions from pay, if the (c) Representation at the hearing. The
amount to be recovered was accumu- creditor agency may be represented by
lated over four pay periods or less; or legal counsel. The employee may rep-
(2) An employees consent to make resent himself or herself or may be rep-

voluntary withholdings from his or her resented by an individual of his or her
current pay account. choice and at his or her expense.
32
(d) Review of Office records related to (2) Oral hearing. An employee who re-
the debt. (1) An employee who intends quests an oral hearing shall be pro-
to inspect or copy creditor agency vided an oral hearing if the hearing of-
records related to the debt, as provided ficial determines that the matter can-
by 179.207(a)(5), must send a letter to not be resolved by review of documen-
the official designated in the notice of tary evidence alone (e.g., when an issue
intent to offset stating his or her in- of credibility or veracity is involved).
tention. The letter must be received The hearing is not an adversarial adju-
within 15 calendar days after the em- dication and need not take the form of
ployees receipt of the notice. an evidentiary hearing. Oral hearings
(2) In response to a timely request may take the form of, but are not lim-
submitted by the debtor, the des- ited to:
ignated official will notify the em- (i) Informal conferences with the
ployee of the location and time when hearing official, in which the employee
the employee may inspect and copy and agency representative will be given
records related to the debt. full opportunity to present evidence,
(3) If personal inspection is imprac- witnesses, and argument;
tical, arrangements shall be made to (ii) Informal meetings with an inter-
end copies of such records to the em- view of the employee; or
ployee. (iii) Formal written submissions with
an opportunity for oral presentation.
(e) Hearing official. The Office may re-
(3) Paper hearing. If the hearing offi-
quest an administrative law judge to
cial determines that an oral hearing is
conduct the hearing, or the Office may
not necessary, he or she will make a
obtain a hearing official who is not
determination based upon a review of
under the supervision or control of the
the available written record (4 CFR
Director of OPM.
102.3(c) (2) and (3)).
(f) Obtaining the services of a hearing (4) Record. The hearing official must
official when OPM is the creditor agency. maintain a summary record of any
(1) When the debtor is not an OPM em- hearing provided by this subpart (4
ployee and the Office cannot provide a CFR 102.3(c)(1)(ii)). Witnesses who tes-
prompt and appropriate hearing before tify in oral hearings will do so under
a hearing official furnished pursuant to oath or affirmation.
another lawful arrangement, the Office (h) Date of decision. The hearing offi-
may contact an agent of the paying cial shall issue a written opinion stat-
agency designated in 5 CFR part 581, ing his or her decision, based upon doc-
appendix A, or other individual des- umentary evidence and information de-
ignated by the paying agency, and re- veloped at the hearing, as soon as prac-
quest a hearing official. ticable after the hearing, but not later
(2) When the debtor is an OPM em- than 60 days after the date on which
ployee, the Office may contact any the petition was received by the cred-
agent of another agency designated in 5 itor agency, unless the employee re-
CFR part 581, appendix A, or otherwise quests a delay in the proceedings. In
designated by that agency, to request a such case the 60-day decision period
hearing official. shall be extended by the number of
(g) Procedure(1) General. After the days by which the hearing was post-
employee requests a hearing, the hear- poned.
ing official shall notify the employee of (i) Content of decision. The written de-
the form of the hearing to be provided. cision shall include:
If the hearing will be oral, the notice (1) A statement of the facts presented
shall set forth the date, time and loca- to support the origin, nature, and
tion of the hearing. If the hearing will amount of the debt;
be paper, the employee shall be noti- (2) The hearing officials findings,
fied that he or she should submit argu- analysis, and conclusions including a
ments in writing to the hearing official determination whether the debtors pe-
by a specified date after which the tition for hearing was baseless and re-
record shall be closed. This date shall sulted from an intent to delay creditor
give the employee reasonable time to agency collection activity and whether
submit documentation. the Office should pursue other actions
33
179.208 5 CFR Ch. I (1116 Edition)
against the debtor as provided by 5 179.209 Voluntary repayment agree-

CFR 550.1104(d)(11); and ment as alternative to salary offset.
(3) The terms of any repayment (a)(1) In response to a notice of in-
schedules, if applicable. tent, an employee may propose to
(j) Failure to appear. In the absence of repay the debt by making voluntary in-
good cause shown (e.g., illness), an em- stallment payments as an alternative
ployee who fails to appear at a hearing to salary offset. An employee who
shall be deemed, for the purpose of this wishes to repay a debt without salary
subpart, to admit the existence and offset shall submit in writing a pro-
amount of the debt as described in the posed agreement to repay the debt. The
notice of intent. If the representative proposal shall admit the existence of
of the creditor agency fails to appear, the debt, and the agreement must be in
the hearing official shall proceed with such form that it is legally enforceable.
the hearing as scheduled and make his/ The agreement must:
her determination based upon the oral (i) Be in writing;
testimony presented and the documen- (ii) Be signed by both the employee
tary evidence submitted by both par- and the creditor agency;
ties. With the agreement of both par- (iii) Specify all the terms of the ar-
ties, the hearing official shall schedule rangement for payment; and
a new hearing date. Both parties shall
(iv) Contain a provision accelerating
be given reasonable notice of the time
the debt in the event of default by the
and place of the new hearing.
debtor, but such an increase may not
179.208 Certification. result in a deduction that exceeds 15
percent of the employees disposable
(a) OPM salary offset coordinator pay unless the employee has agreed in
shall provide a certification to the pay- writing to deduction of a greater
ing agency in all cases where: amount (5 CFR 550.1104(i)).
(1) The hearing official determines (2) Any proposal under paragraph (a)
that a debt exists; of this section must be received by the
(2) The employee fails to contest the official designated in the notice of in-
existence and amount of the debt by tent within 30 calendar days after re-
failing to request a hearing; or ceipt of the notice.
(3) The employee fails to contest the (b) The creditor agency will review a
existence of the debt by failing to ap- timely and properly submitted repay-
pear at a hearing. ment proposal by the employee debtor
(b) The certification must be in writ- and notify the employee whether the
ing and must state: proposed written agreement for repay-
(1) That the employee owes the debt; ment is acceptable. It is within the
(2) The amount and basis of the debt; creditor agencys discretion to accept a
(3) The date the Governments right repayment agreement instead of pro-
to collect the debt first accrued; ceeding by offset.
(4) That the Offices regulations have (c) If the creditor agency decides that
been approved by OPM pursuant to 5 the proposed repayment agreement is
CFR part 550, subpart K; unacceptable, the employee will have
(5) The date on which payment(s) is 15 days from the date he or she re-
due; ceived notice of that decision to file a
(6) If the collection is to be made in petition for a hearing or a special re-
installments, the number of install- view as provided by 179.210.
ments to be collected, the amount of (d) If the creditor agency decides that
each installment or percentage of dis- the proposed repayment agreement is
posable pay, and the commencement acceptable, the alternative arrange-
date of the first installment, if a date ment must be in writing, signed by
other than the next officially estab- both the employee and the creditor
lished pay period is required; and
agency designee and meet the other re-

(7) The date(s) of any action(s) taken quirements of this section for a vol-
under 5 U.S.C. 5514(b). untary repayment agreement.
34
179.210 Special review. (1) State that OPM has received a

(a) An OPM employee subject to sal- properly certified debt claim from a
ary offset or a voluntary repayment creditor agency;
agreement, may, at any time, request a (2) Contain a copy of the certification
special review by the Office of the received from the creditor agency;
amount of the salary offset or vol- (3) Advise the employee that salary
untary payment, based on materially offset will be initiated at the next offi-
changed circumstances such as, but not cially established pay interval; and
limited to, catastrophic illness, di- (4) State the amount of the claim and
vorce, death, or disability. amount of deductions.
(b) In determining whether an offset (b) The payroll office shall provide a
would prevent the employee from copy of the notice to the creditor agen-
meeting essential subsistence expenses cy and advise such agency of the dollar
(food, housing, clothing, transportation amount to be offset and the pay period
and medical care), the employee shall when the offset will begin.
submit a detailed statement and sup-
porting documents for the employee, 179.212 Procedures for salary offset.
his or her spouse, and dependents indi- (a) The Director or his or her des-
cating: ignee shall coordinate salary deduc-
(1) Income from all sources; tions under this subpart.
(2) Assets;
(b) OPM payroll office shall deter-
(3) Liabilities;
mine the amount of an employees dis-
(4) Number of dependents;
(5) Expenses for food, housing, cloth- posable pay and implement the salary
ing and transportation; offset.
(6) Medical expenses; and (c) Deductions shall begin effective
(7) Exceptional expenses, if any. the pay period following receipt by
OPMs payroll office of proper certifi-
If an OPM employee requests a special
cation of the debt ( 179.208).
review under this section, the em-
ployee shall file an alternative pro- (d) Types of collection(1) Lump-sum
posed offset or payment schedule and a payment. A debt will be collected in a
statement, with supporting documents lump sum if possible. If an employee is
( 179.210(b)), stating why the current financially unable to pay in one lump
salary offset or payments result in an sum or the amount of the debt exceeds
extreme financial hardship to the em- 15 percent of disposable pay for an offi-
ployee. cially established pay interval, collec-
(c) The Director shall evaluate the tion must be made in installments.
statement and supporting documents, (2) Installment deductions. Installment
and determine whether the original off- deductions will be made over a period
set or repayment schedule imposes an not greater than the anticipated period
extreme financial hardship on the em- of employment and, except in rare cir-
ployee. The Director shall notify the cumstances, not to exceed 3 years. The
employee in writing of such determina- size and frequency of installment de-
tion, including, if appropriate, a reductions will bear a reasonable relation
vised offset or repayment schedule. to the size of the debt and the employ-
(d) If the special review results in a ees ability to pay. The amount de-
revised offset or repayment schedule, ducted for any period will not exceed 15
the OPM salary offset coordinator shall percent of the disposable pay from
provide a new certification to the pay- which the deduction is made unless the
roll office. employee has agreed in writing to the
deduction of a greater amount.
179.211 Notice of salary offset. (3) Lump-sum deductions from final
(a) Upon receipt of proper certifi- check. A lump-sum deduction exceeding
cation from a creditor agency, the the 15 percent disposable pay limita-
OPM payroll office will send the OPM tion may be made from any final salary
employee, identified in the certifi- payment pursuant to 31 U.S.C. 3716 in
cation as the debtor, a written notice order to liquidate the debt, whether
of salary offset. Such notice shall, at a the employee is being separated volun-
minimum: tarily or involuntarily.
35
179.213 5 CFR Ch. I (1116 Edition)
(4) Lump-sum deductions from other practices and procedures as may be

sources. When an employee subject to necessary to carry out the intent of
salary offset is separated from OPM this regulation.
and the balance of the debt cannot be (2) The designated salary offset coor-
liquidated by offset of the final salary dinator will be responsible for:
check, the Office, pursuant to 31 U.S.C. (i) Ensuring that each notice of in-
3716, the FCCS and OPMs imple- tent to offset is consistent with the re-
menting regulations, may offset the quirements of 179.206;
balance of the debt against any finan- (ii) Ensuring that each certification
cial payment due the employee from of debt that is sent to a paying agency
the U.S. Government. is consistent with the requirements of
(e) Multiple debts. In instances where 179.208;
two or more creditor agencies are seek- (iii) Obtaining hearing officials from
ing salary offset, or where two or more other agencies pursuant to 179.207(f);
debts are owed to a single creditor and
agency, OPM payroll office may, at its (iv) Ensuring that hearings are prop-
discretion, determine whether one or erly scheduled.
more debts should be offset simulta- (3) Requesting recovery from current
neously within the 15 percent limita- paying agency. Upon completion of the
tion. procedures established in these regula-
(f) Precedence of debts owed to OPM. tions and pursuant to 5 U.S.C. 5514, the
For OPM employees, debts owed to the Office must:
Office generally take precedence over (i) Certify, in writing, to the paying
debts owed to other agencies. In the agency that the employee owes the
event that a debt to the Office is cer- debt, the amount and basis of the debt,
tified while an employee is subject to a the date on which payment(s) is due,
salary offset to repay another agency, the date the Governments right to col-
the OPM payroll office may decide lect the debt first accrued, and that the
whether to have that debt repaid in full Offices regulations implementing 5
before collecting its claim or whether U.S.C. 5514 have been approved by the
changes should be made in the salary Office of Personnel Management;
deduction being sent to the other agen- (ii) Advise the paying agency of the
cy. If debts owed the Office can be col- amount or percentage of disposable pay
lected in one pay period, the payroll of- to be collected in each installment and
fice may suspend the salary offset to the number and commencing date of
the other agency for that pay period in the installments (if a date other than
order to liquidate the office debt. the next officially established pay pe-
(g) When an employee owes two or riod is required);
more debts, the best interests of the (iii) Advise the paying agency of the
Government shall be the primary con- action(s) taken under 5 U.S.C. 5514(b)
sideration in determining the order of and give the date(s) and action(s) was
debt collection. The OPM payroll of- taken (unless the employee has con-
fice, in making this determination, sented to the salary offset in writing or
will be guided primarily by the statute signed a statement acknowledging re-
of limitations that affects the collec- ceipt of the required procedures and
tion of the debt(s). the written consent or statement is
forwarded to the paying agency);
179.213 Coordinating salary offset (iv) Submit a debt claim certification
with other agencies. containing the information specified in
(a) Responsibility of OPM as the cred- paragraphs (a)(3)(i), (a)(3)(ii) and
itor agency. (1) The Director or his or (a)(3)(iii) of this section and an install-
her designee shall coordinate debt col- ment agreement (or other instruction
lections with other agencies and shall, on the payment schedule), if applica-
as appropriate: ble, to the employees paying agency;
(i) Arrange for a hearing or special and
review upon proper petitioning by a (v) Submit the debt claim, as pro-
Federal employee; and vided in 179.208, to the employees

(ii) Prescribe, upon consultation with paying agency for collection if the em-
the General Counsel, such additional ployee is in the process of separating,
36
and has not received a final salary ployee must receive written notice
check, or other final payment(s) from from the Office including:
the paying agency. The paying agency (i) A statement that the Office has
must certify the total amount of its received a certified debt claim from the
collection on the debt and send a copy creditor agency;
of the certification to the employee (ii) The amount of the debt claim;
and another copy to the creditor agen- (iii) The date salary offset deductions
cy. If the paying agencys collection will begin, and
does not fully satisfy the debt, and the (iv) The amount of such deductions.
paying agency is aware that the debtor (2) Incomplete claim. When the Office
is entitled to payments from the Civil receives an incomplete certification of
Service Retirement and Disability debt from a creditor agency, the Office
Fund or other similar payments that must return the debt claim with notice
may be due the debtor employee from that procedures under 5 U.S.C. 5514 and
other Federal Government sources, the 5 CFR 550.1101 et seq. must be followed
paying agency will provide written no- and a properly certified debt claim re-
tification of the outstanding debt to ceived before action will be taken to
the agency responsible for making such collect from the employees current
other payments to the debtor em-
pay account.
ployee. The written notification shall
(3) Review. The Office is not author-
state that the employee owes a debt
ized to review the merits of the cred-
(including the amount) and that the
itor agencys determination with re-
provisions of this section have been
spect to the amount or validity of the
fully complied with. The Office must
submit a properly certified claim to debt certified by the creditor agency.
the agency responsible for making such (4) Employees who transfer from one
payments before the collection can be paying agency to another. If, after the
made. creditor agency has submitted the debt
(4) Separated employee. If the em- claim to the Office, the employee
ployee is already separated and all pay- transfers from OPM to a different pay-
ments due from his or her former paying agency before the debt is collected
ing agency have been paid, the Office in full, the Office will certify the total
may request, unless otherwise prohib- amount collected on the debt. One copy
ited, that money due and payable to of the certification will be furnished to
the employee from the Civil Service the employee and one copy to the cred-
Retirement and Disability Fund (5 CFR itor agency along with notice of the
831.1801 et seq. or 5 CFR 845.401 et seq.) employees transfer.
or other similar funds, be administra-
179.214 Interest, penalties and ad-
tively offset to collect the debt (31 ministrative costs.
U.S.C. 3716 and the FCCS).
(5) Employee transfer. When an em- The office shall assess interest, pen-
ployee transfers from one paying agen- alties and administrative costs on
cy to another paying agency, the Office debts owed pursuant to 31 U.S.C. 3717
is not required to repeat the due proc- and 4 CFR part 101.1 et seq. Penalties
ess procedures described in 5 U.S.C. and administrative costs will be as-
5514 and this subpart to resume the col- sessed on all delinquent debts.
lection. The Office will submit a prop- (a) In cases of default on a previous
erly certified claim to the new paying repayment agreement, the Office re-
agency and will subsequently review serves the right to set a new interest
the debt to make sure the collection is rate which reflects the current value of
resumed by the new paying agency. funds to the Treasury at the time a
(b) Responsibility of the Office as the new repayment agreement is executed.
paying agency(1) Complete claim. When (b) The Office, on a case-by-case
the Office receives a certified claim basis, may waive all interest accrued
from a creditor agency, deductions on debts paid in full within 60 days of
should be scheduled to begin at the the due date if there is no indication of

next officially established pay interval. fault or lack of good faith on the part
Before deductions can begin, the em- of the debtor.
37
179.215 5 CFR Ch. I (1116 Edition)
(c) The Office may waive, in whole or (b) The salary offset coordinator will
in part, the collection of interest, pen- secure qualified personnel to serve as
alties, and/or administrative costs as- hearing officials.
sessed under this section under the cri- (c) Services rendered under this sec-
teria specified in part 103 of 4 CFR, tion will be provided on a fully reim-
chapter II, relating to the compromise bursable basis pursuant to the Econ-
of claims (without regard to the omy Act of 1932, as amended, 31 U.S.C.
amount of the debt). 1535.
(d) The Office may waive, in whole or 179.217 Non-waiver of rights by pay-
in part, the collection of interest, pen- ments.
alties, and/or administrative costs as-
An employees involuntary payment
sessed under this section if the Office of all or any portion of a debt collected
determines that collection of these under this subpart must not be con-
charges would be against equity and strued as a waiver of any rights which
good conscience or not in the best in- the employee may have under 5 U.S.C.
terests of the United States. 5514 or any other provision of contract
(e) The Office shall waive the accrual or law unless there are statutory or
of interest pending consideration of a contractual provisions to the contrary.
request for reconsideration, adminis-
trative review, or waiver of the under- 179.218 Additional administrative
lying debt under provisions of a per- collection action.
missive statute providing for such re- Nothing contained in this subpart is
view related to the debt. intended to preclude the use of any
(f) The Office shall waive interest on other administrative remedy which
repayment agreements when the may be appropriate.
amount of interest accruing equals or
exceeds the amount of installments the Subpart CAdministrative Offset
debtor can reasonably afford and there
is no indication of fault or lack of good SOURCE: 59 FR 35214, July 11, 1994, unless
faith on the part of the debtor. otherwise noted.
179.215 Refunds. 179.301 Scope of regulations.

(a) The Office shall promptly refund These regulations apply to the collec-
any amounts deducted under the au- tion of debts owed to the United States
thority of 5 U.S.C. 5514 when: arising from transactions with OPM
(1) The debt is waived or otherwise other than those involving payments
found not to be owing the United made from the Civil Service Retire-
ment and Disability Fund (the Fund),
States (unless expressly prohibited by
or where a request for an offset from
statute or regulation); or
OPMs administrative accountsother
(2) An administrative or judicial than the Fundis received by OPM
order directs the Office to make a re- from another Federal agency. Regula-
fund. tions for other agencies to request
(b) Unless required or permitted by OPMs Retirement and Insurance
law or contract, refunds under this sub- Group to recover a debt from the Fund
section shall not bear interest. are provided at subpart R of part 831
and subpart D of part 845 of title 5,
179.216 Request for the services of a Code of Federal Regulations. These
hearing official when the creditor regulations are consistent with the
agency is not OPM.
Federal Claims Collection Standards
(a) The Office will provide a hearing on Administrative Offset issued jointly
official upon request of the creditor by the Department of Justice and the
agency when the debtor is employed by General Accounting Office as set forth
the Office and the creditor agency can- in 4 CFR 102.3.
not provide a prompt and appropriate
hearing before a hearing official fur-

nished pursuant to another lawful ar- Administrative offset, as defined in 31
rangement. U.S.C. 3701(a)(1), means withholding
38
money payable by the United States not have been known, by the official or
Government to, or held by the Govern- officials responsible for discovering and
ment for, a person to satisfy a debt the collecting such debt.
person owes the Government. (f) These regulations do not apply to:
Person, includes a natural person or (1) A case in which administrative
persons, profit or non-profit corpora- offset of the type of debt involved is ex-
tion, partnership, association, trust, plicitly provided for or prohibited by
estate, consortium, or other entity another statute.
which is capable of owing a debt to the (2) Debts owed to OPM by other agen-
United States Government except that cies of the United States or by any
agencies of the United States, or of any State or local government.
State or local government, shall be ex-
cluded. 179.304 Notification procedures.
Before collecting any debt through
179.303 General. administrative offset, a notice of in-
(a) The Director or his or her des- tent to offset shall be sent to the debt-
ignee, after attempting to collect a or by certified mail, return receipt re-
debt from a person under section 3(a) of quested, at the most current address
the Federal Claims Collection Act of that is available to OPM. The notice
1966, as amended (31 U.S.C. 3711(a)), shall provide:
may collect the debt by administrative (a) A description of the nature and
offset subject to the following: amount of the debt and the intention
(1) The debt is certain in amount; and of OPM to collect the debt through ad-
(2) It is in the best interest of the ministrative offset;
United States to collect the debt by ad- (b) An opportunity to inspect and
ministrative offset because it is less copy the records of OPM with respect
costly and speeds payment of the debt; to the debt;
(b) The Director, or his or her des- (c) An opportunity for review within
ignee, may initiate administrative off- OPM concerning OPMs determinations
set with regard to debts owed by a per- with respect to the debt; and
son to another agency of the United (d) An opportunity to enter into a
States Government, upon receipt of a written agreement for the repayment
request from the head of another agen- of the amount of the debt.
cy, or his or her designee, and a certifi-
cation that the debt exists and that the 179.305 Agency review.
person has been afforded the necessary (a) A debtor may dispute the exist-
due process rights. ence of the debt, the amount of the
(c) The Director, or his or her des- debt, or the terms of repayment. The
ignee, may request another agency request to review a disputed debt must
that holds funds payable to an OPM be received by the OPM official identi-
debtor to offset the debt against the fied in the notification within 30 cal-
funds held and will provide certifi- endar days of the debtors receipt of
cation that: the written notice described in 179.304.
(1) The debt exists; and (b) If the debtor requests an oppor-
(2) The person has been afforded the tunity to inspect or copy OPMs
necessary due process rights. records concerning the disputed claim,
(d) If the 6-year period for bringing 10 business days will be granted for the
action on a debt provided in 28 U.S.C. review. The time period will be meas-
2415 has expired, then administrative ured from the time the request for in-
offset may be used to collect the debt spection is granted or from the time
only if the costs of bringing such ac- the copy of the records is received by
tion are likely to be less than the the debtor.
amount of the debt. (c) Pending the resolution of a dis-
(e) No collection by administrative pute initiated by the debtor, trans-
offset shall be made on any debt that actions in any of the debtors ac-
has been outstanding for more than 10 count(s) maintained in OPM may be
years unless facts material to the Gov- temporarily suspended to the extent of
ernments right to collect the debt the debt that is owed. Depending on
were not known, and reasonably could the type of transaction, the suspension
39
179.306 5 CFR Ch. I (1116 Edition)
could preclude payment, removal, or (1) That the debtor owes the debt;
transfer, as well as prevent the pay- (2) The amount and basis of the debt;
ment of interest or discount due there- and
on. Should the dispute be resolved in (3) That OPM has complied with the
the debtors favor, the suspension will requirements of 31 U.S.C. 3716, its own
be lifted immediately. administrative offset regulations, and
(d) During the review period, inter- the applicable provisions of 4 CFR part
est, penalties, and administrative costs 102 with respect to providing the debtor
authorized under the Federal Claims with due process.
Collection Act of 1966, as amended, will (c) Request for offset from a Federal
continue to accrue. agency: When administrative offset is
authorized, any Federal creditor agen-
179.306 Written agreement for repay-
ment. cy may request OPM to make an ad-
ministrative offset from any OPM
A debtor who admits liability but funds that are due and payable to a
elects not to have the debt collected by creditor agencys debtor. OPM shall
administrative offset will be afforded initiate the requested administrative
an opportunity to negotiate a written offset only upon:
agreement for the repayment of the (1) Receipt of written certification
debt. If the financial condition of the from the creditor agency:
debtor does not support the ability to (i) That the debtor owes the debt;
pay in one lump-sum, reasonable in-
(ii) The amount and basis of the debt;
stallments may be considered. No in-
(iii) That the agency has prescribed
stallment arrangement will be consid-
regulations for the exercise of adminis-
ered unless the debtor submits a finan-
trative offset; and
cial statement, executed under penalty
of perjury, reflecting the debtors as- (iv) That the agency has complied
sets, liabilities, income, and expenses. with its own administrative offset reg-
The financial statement must be sub- ulations and with the applicable provi-
mitted within 10 business days of sions of 4 CFR part 102, including pro-
OPMs request for the statement. At viding any required hearing or review.
OPMs option, a confess-judgment note (2) A determination by OPM that col-
or bond of indemnity with surety may lection by offset against funds payable
be required for the installment agree- by OPM would not otherwise be con-
ment. Notwithstanding the provisions trary to law.
of this section, any reduction or com-
179.308 Accelerated procedures.
promise of a claim will be governed by
4 CFR part 103 and 31 U.S.C. 3711. OPM may make an administrative
offset against a payment to be made to
179.307 Administrative offset. the debtor prior to the completion of
(a) If the debtor does not exercise the the procedures required by 179.304
right to request a review within the and 179.305 if failure to take the offset
time specified in 179.305 or, if as a re- would substantially jeopardize OPMs
sult of the review, it is determined that ability to collect the debt, and the
the debt is due and no written agree- time before the payment is to be made
ment is executed, then administrative does not reasonably permit the comple-
offset shall be ordered in accordance tion of those procedures. Such prior
with these regulations without further offset shall be promptly followed by
notice. the completion of those procedures.
(b) Request for offset to a Federal Amounts recovered by offset but later
agency: The Director or his or her des- found not to be owed to OPM shall be
ignee may request that funds due and promptly refunded.
payable to a debtor by a Federal agen-
cy be administratively offset in order 179.309 Additional administrative
to collect a debt owned to OPM by that procedures.
debtor. In requesting administrative Nothing contained in this chapter is
offset OPM, as creditor, will certify in intended to preclude the use of any
writing to the Federal agency holding other administrative remedy which
funds of the debtor: may be available.
40
Subpart DAdministrative Wage shall determine to be reasonable, use-

Garnishment ful, or proper under the circumstances
existing at the time and place of the
loss. In determining what is reason-
AUTHORITY: 15 U.S.C. 46; 31 U.S.C. 3720D; 31
CFR 285.11(f).
able, useful, or proper, the approving
authority will consider the type and
179.401 Administrative wage garnish- quantity of property involved, cir-
ment. cumstances attending acquistion and
General. OPM may use administrative use of the property, and whether pos-
wage garnishment to collect debts in session or use by the claimant at the
accordance with the requirements of 31 time of damage or loss was incident to
U.S.C. 3720D and 31 CFR 285.11, includ- service.
ing debts it refers to the Bureau of the (b) The Government does not under-
Fiscal Service, Department of the write all personal property losses that
Treasury, for cross-servicing pursuant a claimant may sustain and it does not
to 31 U.S.C. 3711. This part adopts and underwrite individual tastes. While the
incorporates all of the provisions of 31 Government does not attempt to limit
CFR 285.11 concerning administrative possession of property by an individual,
wage garnishment, including the hear- payment for damage or loss is made
ing procedures described in 31 CFR only to the extent that the possession
285.11(f). This section does not apply to of the property is determined to be rea-
collection of debt by Federal salary off- sonable, useful, or proper. If individ-
set, under 5 U.S.C. 5514, the process by uals possess excessive quantities of
which OPM collects debts from the sal- items, or expensive items, they should
aries of Federal employees. have such property privately insured.
[79 FR 29072, May 21, 2014] 180.102 Claimants.
(a) The following are proper claim-
PART 180EMPLOYEES PERSONAL ants:
PROPERTY CLAIMS (1) Officers and employees of OPM;
(2) Former officers and employees of
Sec. OPM whose claims arose out of inci-
180.101 Scope and purpose. dents which occurred before their sepa-
180.102 Claimants.
ration;
180.103 Time limitations.
180.104 Allowable claims. (3) The authorized agent or legal rep-
180.105 Claims not allowed. resentative of persons in 180.102(a)(1)
180.106 Claims involving carriers and insur- and 180.102(a)(2);
ers. (4) Survivors of persons in
180.107 Claims procedure. 180.102(a)(1) and 180.102(a)(2) in the
180.108 Settlement of claims. following order of precedence:
AUTHORITY: Sec. 3, 78 Stat. 767, as amended; (i) Spouse,
31 U.S.C. 241. (ii) Children,
SOURCE: 43 FR 47163, Oct. 13, 1978, unless (iii) Father or mother, or both,
otherwise noted. (iv) Brothers or sisters, or both.
(b) A claim may not be presented by
180.101 Scope and purpose. or for the benefit of a subrogee, as-
(a) The Military Personnel and Civil- signee, conditional vendor, or other
ian Employees Claims Act of 1964, 31 third party.
U.S.C. 240 to 243, authorizes the Direc-
tor, Office of Personnel Management to 180.103 Time limitations.
settle and pay (including replacement A claim must be presented in writing
in kind) claims of officers and employ- within 2 years after it accrues, except
ees of OPM, amounting to not more during war or armed conflict. If war or
than $15,000, for damage to or loss of armed conflict occurs within the 2-year
personal property incident to their period following accrual, when claim-
service. Claims are payable only for ant shows good cause, the claim may
such types, quantities, or amounts of be presented within 2 years after the

tangible personal property (including cause ceases to exist but not more than
money) as the approving authority 2 years after termination of the war or
41
180.104 5 CFR Ch. I (1116 Edition)
armed conflict. A claim accrues when (iii) Any warehouse, office, working
loss or damage is or should have been area, or other place (except quarters)
discovered by claimant even though authorized or apparently authorized for
such loss or damage occurred at a prior the reception or storage of property.
time. (2) Transportation or travel losses.
Claims may be allowed for damage to
180.104 Allowable claims. or loss of property incident to trans-
(a) A claim may be allowed only if: portation or storage pursuant to or-
(1) The damage or loss was not ders, or in connection with travel
caused wholly or partly by the neg- under orders, including property in
ligent or wrongful act of the claimant, custody of a carrier, an agent or agen-
claimants agent, a member of claim- cy of the Government, or the claimant.
ants family, or claimants private em- (3) Motor vehicles. Claims may be al-
ployee (the standard to be applied is lowed for automobiles and other motor
that of reasonable care under the cir- vehicles damaged or lost in oversea
cumstances); shipments provided by the Govern-
ment. Shipments provided by the
(2) The possession of the property
Government means via Government
damaged or lost and the quantity pos-
vessels, charter of commercial vessels,
sessed is determined to have been rea-
or by Government bills of lading on
sonable, useful, or proper under the cir-
commercial vessels, and includes stor-
cumstances; and
age, unloading, and off-loading inci-
(3) The claim is substantiated by dent thereto. Other claims for damage
proper and convincing evidence. to or loss of automobiles and other
(b) Claims which are otherwise allow- motor vehicles may be allowed only
able under this part shall not be dis- when use of the vehicle on a non-reim-
allowed solely because the property bursable basis was required by the
was not in the possession of the claim- claimants supervisor.
ant at the time of the damage or loss (4) Mobile homes. Claims may be al-
or solely because the claimant was not lowed for damage to or loss of mobile
legal owner of the property for which homes and their contents under the
the claim is made. For example, bor- provisions of 180.104(c)(2). Claims for
rowed property may be the subject of a structural damage to mobile homes,
claim. other than that caused by collision,
(c) Subject to the conditions in and damage to contents of mobile
180.104(a) and the other provisions of homes resulting from such structural
this part, any claim for damage to or damage must contain conclusive evi-
loss of personal property incident to dence that the damage was not caused
service with OPM may be considered by structural deficiency of the mobile
and allowed. The following are exam- home and that it was not overloaded.
ples of the principal types of claims Claims for damage to or loss of tires
which may be allowed. These examples mounted on mobile homes may be al-
are not exclusive and other types of lowed only in cases of collision, theft,
claims may be allowed unless excluded or vandalism.
by 180.106: (5) Money. Claims for money in an
(1) Property damaged or lost in quar- amount that is determined to be rea-
ters. Claims may be allowed for damage sonable for the claimant to possess at
to or loss of property located at: the time of the loss are payable:
(i) Quarters within the 50 States and (i) Where personal funds were accept-
the District of Columbia that were as- ed by responsible Government per-
signed to the claimant or otherwise sonnel with apparent authority to re-
provided in kind by the United States; ceive them for safekeeping deposit,
(ii) Quarters outside the 50 States transmittal, or other authorized dis-
and the District of Columbia that were position, but were neither applied as
occupied by the claimant, whether or directed by the owner nor returned;
not they were assigned or otherwise (ii) When lost incident to a marine or
provided in kind by the United States, aircraft disaster;

except when the claimant is a local in- (iii) When lost by fire, flood, hurri-
habitant; or cane, or other natural disaster;
42
(iv) When stolen from the quarters of 180.105 Claims not allowed.
the claimant where it is conclusively (a) A claim is not allowable if:
shown that the money was in a locked (1) The damage or loss was caused
container and that the quarters them- wholly or partly by the negligent or
selves were locked; wrongful act of the claimant, claim-
(v) When taken by force from the ants agent, claimants employee, or a
claimants person. member of claimants family;
(6) Clothing. Claims may be allowed (2) The damage or loss occurred in
for clothing and accessories worn on quarters occupied by the claimant
the person which are damaged or lost: within the 50 States and the District of
(i) During the performance of official Columbia that were not assigned to the
duties in an unusual or extraordinary- claimant or otherwise provided in kind
risk situation; by the United States;
(ii) In cases involving emergency ac- (3) Possession of the property lost or
tion required by natural disaster such damaged was not incident to service or
as fire, flood, hurricane, or by enemy not reasonable or proper under the cir-
or other belligerent action; cumstances.
(b) In addition to claims falling with-
(iii) In cases involving faulty equip-
in the categories of 180.105(a), the fol-
ment or defective furniture maintained
lowing are examples of claims which
by the Government and used by the are not payable:
claimant as required by the job situa- (1) Claims not incident to service.
tion; or Claims which arose during the conduct
(iv) When using a motor vehicle. of personal business are not payable.
(7) Property used for benefit of the Gov- (2) Subrogation claims. Claims based
ernment. Claims may be allowed for upon payment or other consideration
damage to or loss of property (except to a proper claimant are not payable.
motor vehicles) used for the benefit of (3) Assigned claims. Claims based upon
the Government at the request of, or assignment of a claim by a proper
with the knowledge and consent of, su- claimant are not payable.
perior authority or by reason of neces- (4) Conditional vendor claims. Claims
sity. asserted by or on behalf of a condi-
(8) Enemy action or public service. tional vendor are not payable.
Claims may be allowed for damage to (5) Claims by improper claimants.
or loss of property as a direct con- Claims by persons not designated in
sequence of: 180.102(a) are not payable.
(i) Enemy action or threat thereof, or (6) Small items of substantial value.
combat, guerilla, brigandage, or other Claims are not payable for money or
belligerent activity, or unjust confisca- for small articles of substantial value,
tion by a foreign power or its nation- such as watches or expensive jewelry,
als; when shipped with household goods or
as unaccompanied baggage.
(ii) Action by the claimant to quiet a
(7) Articles of extraordinary value.
civil disturbance or to alleviate a pub-
Claims are not payable for expensive
lic disaster; or
articles of gold, silver, other precious
(iii) Efforts by the claimant to save metals, paintings, antiques other than
human life or Government property. bulky furnishings, relics, and other ar-
(9) Marine or aircraft disaster. Claims ticles of extraordinary value when
may be allowed for personal property shipped with household goods by ordi-
damaged or lost as a result of marine nary means or as unaccompanied bag-
or aircraft disaster or accident. gage at normal released valuation.
(10) Government property. Claims may Claims for such articles are payable
be allowed for property owned by the when their loss is incident to shipment
United States only when the claimant by expedited mode in accordance with
is financially responsible to an agency current joint travel regulations. This
of the Government other than OPM. prohibition does not apply to articles
(11) Borrowed property. Claims may be in the personal custody of the claimant
allowed for borrowed property that has or articles properly checked, provided
been damaged or lost. that reasonable protection or security
43
180.106 5 CFR Ch. I (1116 Edition)
measures have been taken by the insurer, except as permitted under

claimant. 180.106.
(8) Articles acquired for other persons. (18) Losses recoverable from contractor.
Claims are not payable for articles in- Claims are not payable for losses, or
tended directly or indirectly for per- any portion thereof, which have been
sons other than the claimant or mem- recovered or are recoverable under con-
bers of the claimants immediate tract, except as permitted under
household. This prohibition includes 180.106.
articles acquired at the request of oth- (19) Fees for estimates. Claims are not
ers and articles for sale. normally payable for fees paid to ob-
(9) Property used for business. Claims tain estimates of repair in conjuction
are not payable for property normally with submitting a claim under this
used for business or profit. part. However, where, in the opinion of
(10) Unserviceable property. Claims are the approving authority, the claimant
not payable for wornout or unservice- could not obtain an estimate without
able property. paying a fee, such a claim may be con-
(11) Violation of law or directive. sidered in an amount reasonable in re-
Claims are not payable for property ac- lation to the value or the cost of re-
quired, possessed, or transported in pairs of the articles involved, provided
violation of law, regulation, or other that the evidence furnished clearly in-
directive. This does not apply to limi- dicates that the amount of the fee paid
tations imposed on the weight of ship- will not be deducted from the cost of
ments of household goods. repairs if the work is accomplished by
(12) Intangible property. Claims are the estimator.
not payable for intangible property (20) Items fraudulently claimed. Claims
such as bank books, checks, promis- are not payable for items fraudulently
sory notes, stock certificates, bonds, claimed. When investigation discloses
bills of lading, warehouse receipts, bag- that a claimant, claimants agent,
gage checks, insurance policies, money claimants employee, or member of
order, and travelers checks. claimants family has intentionally
(13) Government property. Claims are misrepresented an item claimed as to
not payable for property owned by the cost, condition, cost to repair, etc., the
United States unless the claimant is fi- item will be disallowed in its entirety
nancially responsible for the property even though some actual damage has
to an agency of the Government other been sustained. However, if the remain-
than OPM. der of the claim is proper it will be
(14) Motor vehicles. Claims for motor paid. This does not preclude appro-
vehicles, except as provided for by priate disciplinary action if warranted.
180.104(c)(3), will ordinarily not be
paid. However, in exceptional cases, 180.106 Claims involving carriers and
meritorius claims for damage to or loss insurers.
of motor vehicles may be recommended (a) Claimants must comply with the
to the Office of the General Counsel for following before presenting claims in-
consideration and approval for pay- volving a carrier or insurer:
ment. (1) Whenever property is damaged or
(15) Enemy property. Claims are not lost while being shipped pursuant to
payable for enemy property, including authorized travel orders, the owner
war trophies. must file a written claim for reim-
(16) Losses recoverable from carrier. bursement with the carrier according
Claims are not payable for losses, or to the terms of its bill of lading or con-
any portion thereof, which have been tract before submitting a claim against
recovered or are recoverable from a the Government. The claimant may
carrier, except as permitted under present a claim to the Government im-
180.106. mediately after making demand on the
(17) Losses recoverable from insurer. carrier.
Claims are not payable for losses, or (2) Whenever property which is dam-
any portion thereof, which have been aged or lost incident to the claimants
recovered or are recoverable from an service is insured in whole or in part,
44
the claimant must make a written de- (2) Place and date of the damage or
mand against the insurer for reim- loss;
bursement under the terms and condi- (3) A brief statement of the facts and
tions of the insurance coverage. Such circumstances surrounding the damage
demand should be made within the or loss;
time limit provided in the policy and (4) Cost, date, and place of acquisi-
prior to the filing of a claim against tion of each piece of property damaged
the Government. The claimant may or lost;
present a claim to the Government im- (5) Two itemized repair estimates, or
mediately after making demand on the value estimates, whichever is applica-
insurer. ble;
(b) If the claimant fails to make the (6) Copies of police reports, if applica-
required demand on the carrier or in- ble;
surer or make reasonable efforts to col- (7) A statement from the claimants
lect the amount recoverable, the supervisor that the loss was incident to
amount payable under the provisions of service;
these regulations shall be reduced by (8) A statement that the property
the maximum amount recoverable. was or was not insured;
However, no deduction will be made if (9) With respect to claims involving
the circumstances of the claimants thefts or losses in quarters or other
service were such as to preclude timely places where the property was reason-
filing of the claim with the carrier or ably kept, a statement as to what secu-
insurer and it is determined that a de- rity precautions were taken to protect
mand would have been impracticable the property involved;
or unavailing in any event. (10) With respect to claims involving
(c) When a claim is paid by OPM, the property being used for the benefit of
claimant will assign to the United the Government, a statement by the
States, to the extent of any payment claimants supervisor that the claim-
on the claim accepted by claimant, all ant was required to provide such prop-
rights, title, and interest in any claim erty or that the claimants providing it
against any carrier, insurer, or other was in the interest of the Government;
party arising out of the incident on and
which the claim against the United (11) Other evidence as may be re-
States is based. On request, the claim- quired.
ant also will furnish such evidence as (b) Single claim. A single claim shall
may be required to enable the United be presented for all lost or damaged
States to enforce the claim. property resulting from the same inci-
(d) After payment of a claim by the dent. If this procedure causes a hard-
United States, if the claimant receives ship, the claimant may present an ini-
any payment from a carrier, con- tial claim with notice that it is a par-
tractor, insurer, or other third party, tial claim, an explanation of the cir-
the claimant will pay the proceeds to cumstances causing the hardship, and
the United States to the extent of the an estimate of the balance of the claim
payment received by the claimant from and the date it will be submitted. Pay-
the United States. ment may be made on a partial claim if
the approving authority determines
180.107 Claims procedure. that a genuine hardship exists.
(a) Filing a claim. Claims not exceed- (c) Claims investigator. When a claim
ing $500 shall be filed with the appro- is filed, the appropriate associate or re-
priate bureau or regional director. gional director, or the General Counsel,
Claims in excess of $500 shall be filed shall appoint a claims investigator to
with the Office of the General Counsel, evaluate the claim and make a rec-
Office of Personnel Management, 1900 E ommendation as to its disposition.
Street NW., Washington, DC 20415. Where the cost to repair damaged prop-
Claims shall be in writing, using G.C. erty does not exceed $100 per item and
Form 33 when available, and shall con- the claims investigator has inspected
tain as a minimum: the damaged property, the claimant

(1) Name, address, and place of em- and the approving authority may agree
ployment of the claimant; upon a reasonable amount to be
45
180.107 5 CFR Ch. I (1116 Edition)
claimed for repair of an individual item (iii) Inventoried condition when the
in lieu of an independent estimate by a property was turned over;
qualified repairman. In such a case, the (iv) When and where the property was
claims investigator and the approving packed and by whom;
authority will certify that the property (v) Date of shipment;
has been examined and that the (vi) Copies of all bills of lading, in-
amount claimed is a reasonable allow- ventories, and other applicable ship-
ance for the cost of the repairs. ping documents;
(d) Loss in quarters. Claims for prop- (vii) Date and place of delivery to the
erty loss in quarters or other author- claimant;
ized places should be accompanied by a (viii) Date the property was un-
statement indicating: packed by the carrier, claimant, or
(1) Geographical location; Government;
(2) Whether the quarters were as- (ix) Statements of disinterested wit-
signed or provided in kind by the Gov- nesses as to the condition of the prop-
ernment; erty when received and delivered, or as
(3) Whether the quarters are regu- to handling or storage;
larly occupied by the claimant; (x) Whether the negligence of any
(4) Name of the authority, if any, Government employee acting within
who designated the place of storage of the scope of his employment caused the
the property if other than quarters; damage or loss;
(5) Measures taken to protect the (xi) Whether the last common carrier
property; and or local carrier was given a clear re-
ceipt, except for concealed damages;
(6) Whether the claimant is a local
(xii) Total gross, tare, and net weight
inhabitant.
of shipment;
(e) Loss by theft or robbery. Claims for
(xiii) Insurance certificate or policy
property loss by theft or robbery
if losses are privately insured;
should be accompanied by a statement
(xiv) Copy of the demand on carrier
indicating:
or insured, or both, when required, and
(1) Geographical location; the reply, if any;
(2) Facts and circumstances sur- (xv) Action taken by the claimant to
rounding the loss, including evidence of locate missing baggage or household
the crime such as breaking and enter- effects, including related correspond-
ing, capture of the thief or robber, or ence.
recovery of part of the stolen goods; (g) Marine or aircraft disaster. Claims
and for property losses due to marine or
(3) Evidence that the claimant exer- aircraft disaster should be accom-
cised due care in protecting the prop- panied by a copy of orders or other evi-
erty prior to the loss, including infor- dence to establish the claimants right
mation as to the degree of care nor- to be, or to have property, on board.
mally exercised in the locale of the loss (h) Enemy action, public disaster, or
due to any unusual risks involved. public service. Claims for property
(f) Transportation losses. Claims for losses due to enemy action, public dis-
transportation losses should be accom- aster, or public service should be ac-
panied by the following: companied by:
(1) Copies of orders authorizing the (1) Copies of orders or other evidence
travel, transportation, or shipment or establishing the claimants required
a certificate explaining the absence of presence in the area involved, and
orders and stating their substance; (2) A detailed statement of facts and
(2) Statement in cases where prop- circumstances showing an applicable
erty was turned over to a shipping offi- case enumerated in 180.104(c)(8).
cer, supply officer, or contract packer (i) Property used for benefit of Govern-
indicating: ment. Claims for property loss when the
(i) Name (or designation) and address property was used for the benefit of the
of the shipping officer, supply officer, Government should be accompanied by:
or contract packer; (1) A statement from the proper au-

(ii) Date the property was turned thority that the property was supplied
over; by the claimant in the performance of
46
official business at the request of, or to the adjusted dollar value or other
with the knowledge and consent of, su- base price of property lost or damaged
perior authority or by reason of neces- beyond economical repair; by allowing
sity; and the cost of repairs when an item is eco-
(2) If the property being used for the nomically repairable, provided the cost
benefit of the Government was dam- of repairs does not exceed the depre-
aged or lost while not in use, evidence ciated value of the item; and by de-
that the loss occurred in an authorized ducting salvage value, if appropriate.
storage area. (d) Depreciation. Depreciation in
(j) Money. Claims for loss of money value of an item is determined by con-
deposited for safekeeping, transmittal, sidering the type of article involved,
or other authorized disposition, should its cost, condition when damaged be-
be accompanied by: yond economical repair or lost, and the
(1) Name, grade, and address of the time elapsed between the date of acqui-
person or persons who received the sition and the date of damage or loss.
money and any others involved;
(e) Appreciation. There will be no al-
(2) Name and designation of the au-
thority who authorized such person or lowance for appreciation in the value
persons to accept personal funds, and of the property except that the cost of
the disposition required; and the item may be adjusted to reflect
(3) Receipts and written sworn state- changes in the purchasing power of the
ments explaining the failure to ac- dollar before depreciation is computed.
count for funds or return them to the Appreciation will not be allowed solely
claimant. because the loss occurred or the claim-
(k) Motor vehicles in transit. Claims ant now resides in an area remote from
for damage to motor vehicles in transit the place of purchase of the property.
should be accompanied by a copy of or- (f) Expensive articles. Allowance for
ders or other available evidence to es- expensive items (including heirlooms
tablish the claimants lawful right to and antiques) or for items purchased at
have the property shipped and evidence unreasonably high prices will be based
to establish damage in transit. on the fair and reasonable purchase
price for substitute articles of a simi-
[43 FR 47163, Oct. 13, 1978, as amended at 44 lar nature.
FR 76747, Dec. 28, 1979]
(g) Acquisition. Allowance for articles
180.108 Settlement of claims. acquired by barter will not exceed the
cost of the articles tendered in barter.
(a) Authority. Associate Directors and
No reimbursement will be made for ar-
Regional Directors are authorized to
ticles acquired in black market or
settle and pay any claim not exceeding
other prohibited activities.
$500 and arising under this part. The
General Counsel is authorized to settle (h) Replacement. Replacement of dam-
and pay any claim not exceeding $15,000 aged or lost property may be made in
and arising under this part. Unless cog- kind whenever appropriate.
nizable under 180.104(c)(3), claims for (i) Amount allowable. Subject to the
damage to or loss of motor vehicles limitations of 180.108(c) through
may be settled and paid only by the 180.108(h), the amount allowable in set-
General Counsel. tlement of a claim is either:
(b) Redelegation. The approving au- (1) The depreciated value imme-
thorities may establish such proce- diately prior to damage or loss of prop-
dures and make such redelegations as erty damaged beyond economical re-
may be required to fulfill the objec- pair or lost, less any salvage value; or
tives of this part. (2) The reasonable cost of repairs
(c) Cost or value. The amount awarded when property is economically repair-
on any item of property will not exceed able, provided that the cost of repairs
the cost of the item (either the price does not exceed the depreciated value.
paid in cash or property) or the value (j) Notification. The approving author-
at the time of acquisition if not ac- ity shall notify the claimant in writing
quired by purchase or exchange. The of the action taken on the claim and, if
amount payable will be determined by the claim is disapproved or only par-
applying the principles of depreciation tially approved, the reasons therefor.
47
(k) Carrier or insurer. In the event a 185.118 Rights of parties.

claim submitted against a carrier or 185.119 Authority of the ALJ.
insurer under 180.106 had not been set- 185.120 Prehearing conferences.
185.121 Disclosure of documents.
tled before settlement of a claim 185.122 Discovery.
against the Government under this 185.123 Exchange of witness lists, state-
part, the approving authority shall no- ments and exhibits.
tify such carrier or insurer to pay the 185.124 Subpoenas for attendance at hear-
proceeds of the claim to OPM to the ex- ing.
tent OPM has made payment to the 185.125 Protective order.
185.126 Evidence.
claimant.
185.127 Fees.
(l) Review. The action of the approv- 185.128 Form, filing and service of papers.
ing authority is final; however, the de- 185.129 Computation of time.
cision may be reconsidered if the 185.130 Motions.
claimant so requests and submits a 185.131 Sanctions.
written explanation why reconsider- 185.132 The hearing and burden of proof.
ation is appropriate. 185.133 Determining the amount of penalties
and assessments.
(m) Attorneys fees. No more than 10
185.134 Witnesses.
per centum of the amount paid in set- 185.135 The record.
tlement of each individual claim sub- 185.136 Post-hearing briefs.
mitted and settled under this subpart 185.137 Initial decision.
shall be paid or delivered to or received 185.138 Reconsideration of initial decision.
by any agent or attorney on account of 185.139 Appeal to authority head.
services rendered in connection with 185.140 Stays ordered by the Department of
Justice.
that claim and the same shall be un- 185.141 Stay pending appeal.
lawful, any contract to the contrary 185.142 Judicial review.
notwithstanding. Any person violating 185.143 Collection of civil penalties and as-
this or any other provision of sections sessments.
240 to 243 of title 31, United States 185.144 Right to administrative offset.
Code, shall be deemed guilty of a mis- 185.145 Deposit in Treasury of the United
demeanor and upon conviction thereof States.
185.146 Compromise or settlement.
shall be fined in any sum not exceeding 185.147 Limitations.
$1000.
[43 FR 47163, Oct. 13, 1978, as amended at 44
FR 76747, Dec. 28, 1979] SOURCE: 60 FR 7891, Feb. 10, 1995, unless
otherwise noted.
PART 185PROGRAM FRAUD CIVIL 185.101 Purpose.

REMEDIES This subpart implements the Pro-
gram Fraud Civil Remedies Act of 1986,
Sec. Public Law 99509, 61016104, 100 Stat.
185.101 Purpose.
185.102 Definitions. 1874 (October 21, 1986), codified at 31
185.103 Basis for civil penalties and assess- U.S.C. 38013812. Section 3809 requires
ments. each authority head to promulgate reg-
185.104 Investigation. ulations necessary to implement the
185.105 Review by the reviewing official. provisions of the statute. The subpart
185.106 Prerequisites for issuing a com- establishes administrative procedures
plaint. for imposing civil penalties and assess-
185.107 Complaint.
185.108 Service of complaint.
ments against persons who make, sub-
185.109 Answer. mit, or present, or cause to be made,
185.110 Default upon failure to file an an- submitted, or presented, false, ficti-
swer. tious, or fraudulent claims or written
185.111 Referral of complaint and answer to statements to authorities or to their
the ALJ. agents, and specifies the hearing and
185.112 Notice of hearing. appeal rights of persons subject to alle-
185.113 Location of hearing.
gations of liability for such penalties
185.114 Parties to the hearing.
185.115 Separation of functions. and assessments. The moneys collected
185.116 Ex parte contacts. as a result of these procedures are de-

185.117 Disqualification of reviewing official posited as miscellaneous receipts in
or ALJ. the Treasury of the United States.
48
185.102 Definitions. Individual means a natural person.

For the purposes of this part Initial decision means the written de-
ALJ means an Administrative Law cision of the ALJ required by 185.110
Judge in the authority appointed pur- or 185.137, and includes a revised ini-
suant to 5 U.S.C. 3105 or detailed to the tial decision issued following a remand
authority pursuant to 5 U.S.C. 3344. or a motion for reconsideration.
Authority means the Office of Per- Investigating Official means the In-
sonnel Management (OPM). spector General or the Inspector Gen-
Authority head means the Director of erals designee.
the Office of Personnel Management or Knows or has reason to know means
the Directors designee. that a person, with respect to a claim
Benefit is very broad, and is intended or statement:
to cover anything of value, including (a) Has actual knowledge that the
but not limited to any advantage, pref- claim or statement is false, fictitious,
erence, privilege, license, permit, fa- or fraudulent;
vorable decision, ruling, status or loan (b) Acts in deliberate ignorance of
guarantee. the truth or falsity of the claim or
Claim means any request, demand, or statement; or
submission (c) Acts in reckless disregard of the
(a) Made to the authority for prop- truth or falsity of the claim or state-
erty, services, or money (including ment.
money representing benefits, grants, Makes shall include the terms pre-
loans or insurance); sents, submits, and causes to be made,
(b) Made to a recipient of property, presented, or submitted. As the context
services, or money from the authority requires, making or made, shall like-
or to a party to a contract with the au- wise include the corresponding forms of
thority: such terms.
(1) For property or services if the
Person means any individual, part-
United States
nership, corporation, association, or
(i) Provided such property or serv-
private organization, and includes the
ices;
(ii) Provided any portion of the funds plural of that term.
for the purchase of such property or Representative means an attorney who
services; or is in good standing of the bar of any
(iii) Will reimburse such recipient or State, Territory, or possession of the
party for the purchase of such property United States or of the District of Co-
or services; or lumbia or the Commonwealth of Puer-
(2) For the payment of money (in- to Rico or other individual designated
cluding money representing grants, in writing by the defendant.
loans, insurance, or benefits) if the Reviewing Official means the General
United States: Counsel of OPM or the General Coun-
(i) Provided any portion of the money sels designee. For the purposes of
requested or demanded; or 185.105 of these rules, the General
(ii) Will reimburse such recipient or Counsel personally, or members of the
party for any portion of the money General Counsels immediate staff,
paid on such request or demand; or shall perform the functions of the re-
(c) Made to the authority which has viewing official provided that such per-
the effect of decreasing an obligation son or persons serve in a position for
to pay or account for property, serv- which the rate of basic pay is not less
ices, or money. than the minimum rate payable under
Complaint means the administrative section 5376 of title 5 of the United
complaint served by the reviewing offi- States Code. All other functions of the
cial on the defendant under 185.107. reviewing official, including adminis-
Defendant means any person alleged trative prosecution under these rules,
in a complaint under 185.107 to be lia- shall be performed on behalf of the
ble for a civil penalty or assessment General Counsel by members of the Of-
under 185.103. fice of the General Counsel.

Government means the United States Statement means any representation,
Government. certification, affirmation, document,
49
185.103 5 CFR Ch. I (1116 Edition)
record, or accounting or bookkeeping (d) Each claim for property, services,

entry made: or money is subject to a civil penalty
(a) With respect to a claim or to ob- regardless of whether such property,
tain the approval or payment of a services, or money is actually delivered
claim (including relating to eligibility or paid.
to make a claim); or (e) If the Government has made any
(b) With respect to (including relat- payment (including transferred prop-
ing to eligibility for): erty or provided services) on a claim, a
(1) A contract with, or a bid or pro- person subject to a civil penalty under
posal for a contract with; or paragraph (a)(1) of this section may
(2) A grant, loan, or benefit from, the also be subject to an assessment of not
authority, or any State, political sub- more than twice the amount of such
division of a State, or other party, if claim or that portion thereof that is
the United States Government provides determined to be in violation of para-
any portion of the money or property graph (a)(1) of this section. Such as-
under such contract or for such grant, sessment shall be in lieu of damages
loan, or benefit, or if the Government sustained by the Government because
will reimburse such State, political of such claim.
subdivision, or party for any portion of (f) Any person who makes a written
the money or property under such con- statement that:
tract or for such grant, loan, or ben- (1) The person knows or has reason to
efit. know:
(i) Asserts a material fact which is
185.103 Basis for civil penalties and false, fictitious, or fraudulent; or
assessments. (ii) Is false, fictitious, or fraudulent
(a) In addition to any other remedy because it omits a material fact that
that may be prescribed by law, any per- the person making the statement has a
son shall be subject to a civil penalty duty to include in such statement; and
of not more than $5,000, where the per- (2) Contains, or is accompanied by,
son makes a claim and knows or has an express certification or affirmation
reason to know that the claim: of the truthfulness and accuracy of the
(1) In false, fictitious, or fraudulent; contents of the statement may be sub-
(2) Includes, or is supported by, any ject, in addition to any other remedy
written statement which asserts a ma- that may be prescribed by law, to a
terial fact which is false, fictitious, or civil penalty of not more than $5,000 for
fraudulent; each such statement.
(3) Includes, or is supported by, any (g) Each written representation, cer-
written statement that: tification, or affirmation constitutes a
(i) Omits a material fact; separate statement.
(ii) Is false, fictitious, or fraudulent (h) A statement shall be considered
as a result of such omission; and made to the authority when such state-
(iii) Is a statement in which the per- ment is actually made to an agent, fis-
son making such statement has a duty cal intermediary, or other entity, in-
to include such material fact; or cluding any State or political subdivi-
(4) Is for payment for the provision of sion thereof, acting for or on behalf of
property or services which the person the authority.
has not provided as claimed. (i) No proof of specific intent to de-
(b) Each voucher, invoice, claim fraud is required to establish liability
form, or other individual request or de- under this section.
mand for property, services, or money (j) In any case in which it is deter-
constitutes a separate claim. mined that more than one person is lia-
(c) A claim shall be considered made ble for making a claim or statement
to the authority, recipient, or party under this section, each such person
when such claim is actually made to an may be held liable for a civil penalty
agent, fiscal intermediary, or other en- under this section.
tity, including any State or political (k) In any case in which it is deter-
subdivision thereof, acting for or on be- mined that more than one person is lia-
half of the authority, recipient, or ble for making a claim under this sec-
party. tion on which the Government has
50
made payment (including transferred reviewing official determines that

property or provided services), an as- there is adequate evidence to believe
sessment may be imposed against any that a person is liable under 185.103,
such person or jointly and severally the reviewing official shall transmit to
against any combination of such per- the Attorney General a written notice
sons. of the reviewing officials intention to
have a complaint issued under 185.107.
185.104 Investigation. Such notice shall include:
(a) If an investigating official con- (a) A statement of the reviewing offi-
cludes that a subpoena pursuant to the cials reasons for issuing a complaint;
authority conferred by 31 U.S.C. 3804(a) (b) A statement specifying the evi-
is warranted, he or she may issue a dence that supports the allegations of
subpoena. liability;
(1) The subpoena so issued shall no- (c) A description of the claims or
tify the person to whom it is addressed statements upon which the allegations
of the authority under which the sub- of liability are based;
poena is issued and shall identify the (d) An estimate of the amount of
records or documents sought; money, or the value of property, serv-
(2) The investigating official may ices, or other benefits, requested or de-
designate a person to act on his or her manded in violation of 185.103;
behalf to receive the documents (e) A statement of any exculpatory or
sought; and mitigating circumstances that may re-
(3) The person receiving such sub- late to the claims or statements known
poena shall be required to tender to the by the reviewing official or the inves-
investigating official, or the person tigating official; and
designated to receive the documents, a
(f) A statement that there is a rea-
certification that
sonable prospect of collecting an ap-
(i) The documents sought have been
propriate amount of penalties and as-
produced;
sessments.
(ii) Such documents are not available
and the reasons therefor; or 185.106 Prerequisites for issuing a
(iii) Such documents, suitably identi- complaint.
fied, have been withheld based upon the
assertion of an identified privilege. (a) The reviewing official may issue a
(b) If the investigating official con- complaint under 185.107 only if:
cludes that an action under the Pro- (1) The Department of Justice ap-
gram Fraud Civil Remedies Act may be proves the issuance of a complaint in a
warranted, the investigating official written statement described in section
shall submit a report containing the 3803(b)(1) of title 31 of the United
findings and conclusions of such inves- States Code, and
tigation to the reviewing official. (2) In the case of allegations of liabil-
(c) Nothing in this section shall pre- ity under 185.103(a) with respect to a
clude or limit an investigating offi- claim, the reviewing official deter-
cials discretion to refer allegations di- mines that, with respect to such claim
rectly to the Department of Justice for or a group of related claims submitted
suit under the False Claims Act or at the same time such claim is sub-
other civil relief, or to defer or post- mitted (as defined in paragraph (b) of
pone a report or referral to the review- this section), the amount of money, or
ing official to avoid interference with a the value of property or services, de-
criminal investigation or prosecution. manded or requested in violation of
(d) Nothing in this section modifies 185.103(a) does not exceed $150,000.
any responsibility of an investigating (b) For the purposes of this section, a
official to report violations of criminal related group of claims submitted at
law to the Attorney General. the same time shall include only those
claims arising from the same trans-
185.105 Review by the reviewing offi- action (e.g., grant, loan, application, or
cial.
contract) that are submitted simulta-

If, based on the report of the inves- neously as part of a single request, de-
tigating official under 185.104(b), the mand, or submission.
51
185.107 5 CFR Ch. I (1116 Edition)
(c) Nothing in this section shall be (2) A United States Postal Service re-
construed to limit the reviewing offi- turn receipt card acknowledging re-
cials authority to join in a single com- ceipt; or
plaint against a person, claims that are (3) Written acknowledgment of re-
unrelated or were not submitted simul- ceipt by the defendant or his or her
taneously, regardless of the amount of representative.
money, or the value of property or
services, demanded or requested. 185.109 Answer.
185.107 Complaint. (a) The defendant may request a

hearing in the answer filed with the re-
(a) On or after the date the Depart- viewing official within 30 days of serv-
ment of Justice approves the issuance ice of the complaint.
of a complaint in accordance with sec- (b) In the answer, the defendant:
tion 3803(b)(1) of title 31 of the United
(1) Shall admit or deny each of the
States Code, the reviewing official may
allegations of liability made in the
serve a complaint on the defendant, as
complaint;
provided in 185.108.
(b) The complaint shall state the fol- (2) Shall state any defense on which
lowing: the defendant intends to rely;
(1) The allegations of liability (3) May state any reasons why the de-
against the defendant, including the fendant contends that the penalties
statutory basis for liability, an identi- and assessments should be less than
fication of the claims or statements the statutory maximum; and
that are the basis for the alleged liabil- (4) Shall state the name, address, and
ity, and the reasons why liability alleg- telephone number of the person author-
edly arises from such claims or state- ized by the defendant to act as defend-
ments; ants representative, if any.
(2) The maximum amount of pen- (c) If the defendant is unable to file
alties and assessments for which the an answer meeting the requirements of
defendant may be held liable; paragraph (b) of this section within the
(3) Instructions for filing an answer, time provided, the defendant may, be-
including a specific statement of the fore the expiration of 30 days from
defendants right to request a hearing service of the complaint, file with the
and to be represented by a representa- reviewing official a general answer de-
tive; and nying liability and requesting a hear-
(4) The fact that failure to file an an- ing, and a request for an extension of
swer within 30 days of service of the time within which to file an answer
complaint will result in the imposition meeting the requirements of paragraph
of the maximum amount of penalties (b) of this section. The reviewing offi-
and assessments without right to ap- cial shall file promptly with the ALJ
peal, as provided in 185.110. the complaint, the general answer de-
(c) At the same time the reviewing nying liability, and the request for an
official serves the complaint, he or she extension of time as provided in
shall serve the defendant with a copy 185.110. For good cause shown, the
of these regulations. ALJ may grant the defendant up to 30
additional days within which to file an
185.108 Service of complaint. answer meeting the requirements of
(a) Service of a complaint must be paragraph (b) of this section. The ALJ
made by certified or registered mail or shall decide expeditiously whether the
by delivery in any manner authorized dependent shall be granted an addi-
by Rule 4 of the Federal Rules of Civil tional period of time to file such an-
Procedure. Service is complete upon swer.
receipt.
(b) Proof of service, stating the name 185.110 Default upon failure to file
and address of the person on whom the an answer.
complaint was served, and the manner (a) If the defendant does not file an
and date of service, may be made by: answer within the time prescribed in
(1) Affidavit of the individual serving 185.109(a), the reviewing official may
the complaint by delivery; refer the complaint to the ALJ.
52
(b) Upon the referral of the com- failure to file a timely answer based
plaint, the ALJ shall promptly serve solely on the record before the ALJ.
on the defendant in the manner pre- (k) If the authority head decides that
scribed in 185.108, a notice that an ini- extraordinary circumstances excused
tial decision will be issued under this the defendants failure to file a timely
section. answer, the authority head shall re-
(c) The ALJ shall assume the facts mand the case to the ALJ with instruc-
alleged in the complaint to be true and, tions to grant the defendant an oppor-
if such facts establish liability under tunity to answer.
185.103, the ALJ shall issue an initial (l) If the authority head decides that
decision imposing the maximum the defendants failure to file a timely
amount of penalties and assessments answer is not excused, the authority
allowed under the statute. head shall reinstate the initial decision
(d) Except as otherwise provided in of the ALJ, which shall become final
this section, by failing to file a timely and binding upon the parties 30 days
answer the defendant waives any right after the authority head issues such de-
to further review of the penalties and cision.
assessments imposed under paragraph
(c) of this section and the initial deci- 185.111 Referral of complaint and an-
sion shall become final and binding swer to the ALJ.
upon the parties 30 days after it is Upon receipt of an answer, the re-
issued. viewing official shall file the complaint
(e) If, before such an initial decision and answer with the ALJ.
becomes final, the defendant files a
motion with the ALJ seeking to reopen 185.112 Notice of hearing.
on the grounds that extraordinary cir- (a) When the ALJ receives the com-
cumstances prevented the defendant plaint and answer, the ALJ shall
from filing an answer, the initial deci- promptly serve a notice of hearing
sion shall be stayed pending the ALJs upon the defendant in the manner pre-
decision on the motion. scribed by 185.108. At the same time,
(f) If, on such motion, the defendant the ALJ shall send a copy of such no-
can demonstrate extraordinary cir- tice to the reviewing official or his or
cumstances excusing the failure to file her designee.
a timely answer, the ALJ shall with- (b) Such notice shall include:
draw the initial decision in paragraph
(1) The tentative time and place, and
(c) of this section, if such a decision
the nature of the hearing;
has been issued, and shall grant the de-
(2) The legal authority and jurisdic-
fendant an opportunity to answer the
tion under which the hearing is to be
complaint.
held;
(g) A decision of the ALJ denying a
defendants motion under paragraph (e) (3) The matters of fact and law to be
of this section is not subject to recon- asserted;
sideration under 185.138. (4) A description of the procedures for
(h) The defendant may appeal to the the conduct of the hearing;
authority head the decision denying a (5) The name, address, and telephone
motion to reopen by filing a notice of number of the representative of the
appeal with the authority head within Government and of the defendant, if
15 days after the ALJ denies the mo- any; and
tion. The timely filing of a notice of (6) Such other matters as the ALJ
appeal shall stay the initial decision deems appropriate.
until the authority head decides the
185.113 Location of hearing.
issue.
(i) If the defendant files a timely no- (a) The hearing may be held:
tice of appeal with the authority head, (1) In any judicial district of the
the ALJ shall forward the record of the United States in which the defendant
proceeding to the authority head. resides or transacts business;
(j) The authority head shall decide (2) In any judicial district of the
expeditiously whether extraordinary United States in which the claim or
circumstances excuse the defendants statement in issue was made; or
53
185.114 5 CFR Ch. I (1116 Edition)
(3) In such other place as may be 185.117 Disqualification of reviewing

agreed upon by the parties and the official or ALJ.
ALJ. (a) A reviewing official or ALJ in a
(b) Each party shall have the oppor- particular case may disqualify himself
tunity to present argument with re- or herself at any time.
spect to the location of the hearing. (b) A party may file with the ALJ a
(c) The hearing shall be held at the motion for disqualification of a review-
place and at the time ordered by the ing official or an ALJ. Such motion
ALJ. shall be accompanied by an affidavit
alleging personal bias or other reason
185.114 Parties to the hearing. for disqualification.
(a) The parties to the hearing shall (c) Such motion and affidavit shall be
be the defendant and OPM. filed promptly upon the partys dis-
covery of reasons requiring disquali-
(b) Except where the authority head
fication, or such objections shall be
designates another, OPM shall be rep-
deemed waived.
resented by the members of the Office
(d) Such affidavit shall state specific
of the General Counsel.
facts that support the partys belief
(c) Pursuant to section 3730(c)(5) of that personal bias or other reason for
title 31, United States Code, a private disqualification exists and the time
plaintiff under the False Claims Act and circumstances of the partys dis-
may participate in these proceedings to covery of such facts. It shall be accom-
the extent authorized by the provisions panied by a certificate of the rep-
of that Act. resentative of record that it is made in
good faith.
185.115 Separation of functions.
(e) Upon the filing of such a motion
(a) The investigating official, the re- and affidavit, the ALJ shall proceed no
viewing official, and any employee or further in the case until he or she re-
agent of the authority who takes part solves the matter of disqualification in
in investigating, preparing, or pre- accordance with this section.
senting a particular case may not, in (1) If the ALJ determines that a re-
such case or a factually related case: viewing official is disqualified, the ALJ
(1) Participate in the hearing as the shall dismiss the complaint without
ALJ; prejudice.
(2) Participate or advise in the initial (2) If the ALJ disqualifies himself or
decision or the review of the initial de- herself, the case shall be reassigned
cision by the authority head, except as promptly to another ALJ.
a witness or a representative in public (3) If the ALJ denies a motion to dis-
proceedings; or qualify, the authority head may deter-
(3) Make the collection of penalties mine the matter only as part of his or
and assessments under section 3806 of her review of the initial decision upon
title 31, United States Code. appeal, if any.
(b) The ALJ shall not be responsible 185.118 Rights of parties.
to or subject to the supervision or di-
Except as otherwise limited by this
rection of the investigating official or
part, all parties may:
the reviewing official.
(a) Be accompanied, represented, and
185.116 Ex parte contacts. advised by a representative;
(b) Participate in any conference
No party or person (except employees held by the ALJ;
of the ALJs office) shall communicate (c) Conduct discovery as provided
in any way with the ALJ on any mat- under 185.122;
ter at issue in a case, unless on notice (d) Agree to stipulations of fact or
and opportunity for all parties to par- law, which shall be made a part of the
ticipate. This provision does not pro- record;
hibit a person or party from inquiring (e) Present evidence relevant to the
about the status of a case or asking issues at the hearing;

routine questions concerning adminis- (f) Present and cross-examine wit-
trative functions or procedures. nesses;
54
(g) Present oral arguments at the hearing conference at a reasonable

hearing as permitted by the ALJ; and time in advance of the hearing.
(h) Submit written briefs and pro- (c) The ALJ may use prehearing con-
posed findings of fact and conclusions ferences to discuss the following:
of law after the hearing. (1) Simplification of the issues;
(2) The necessity or desirability of
185.119 Authority of the ALJ. amendments to the pleadings, includ-
(a) The ALJ shall conduct a fair and ing the need for a more definite state-
impartial hearing, avoid delay, main- ment;
tain order, and assure that a record of (3) Stipulations and admissions of
the proceeding is made. fact or as to the contents and authen-
(b) The ALJ has the authority to: ticity of documents;
(1) Set and change the date, time, (4) Whether the parties can agree to
and place of the hearing upon reason- submission of the case on a stipulated
able notice to the parties; record;
(2) Continue or recess the hearing in (5) Whether a party chooses to waive
whole or in part for a reasonable period appearance at an oral hearing and to
of time; submit only documentary evidence
(3) Hold conferences to identify or (subject to the objection of other par-
simplify the issues, or to consider ties) and written argument;
other matters that may aid in the ex- (6) Limitation of the number of wit-
peditious disposition of the proceeding; nesses;
(4) Administer oaths and affirma- (7) Scheduling dates for the exchange
tions; of witness lists and of proposed exhib-
(5) Issue subpoenas requiring the at- its;
tendance of witnesses and the produc- (8) Discovery;
tion of documents at depositions or at (9) The time and place for the hear-
hearings; ing; and
(6) Rule on motions and other proce- (10) Such other matters as may tend
dural matters; to expedite the fair and just disposition
(7) Regulate the scope and timing of of the proceedings.
discovery; (d) The ALJ may issue an order con-
(8) Regulate the course of the hearing taining all matters agreed upon by the
and the conduct of representatives and parties or ordered by the ALJ at a pre-
parties; hearing conference.
(9) Examine witnesses;
(10) Receive, rule on, exclude, or 185.121 Disclosure of documents.
limit evidence; (a) Upon written request to the re-
(11) Upon motion of a party, take of- viewing official, generally prior to the
ficial notice of facts; filing of an answer, the defendant may
(12) Upon motion of a party, decide review any relevant and material docu-
cases, in whole or in part, by summary ments, transcripts, records, and other
judgment where there is no disputed materials that relate to the allegations
issue of material fact; set out in the complaint and upon
(13) Conduct any conference, argu- which the findings and conclusions of
ment, or hearing on motions in person the investigating official under
or by telephone; and 185.104(b) are based, unless such docu-
(14) Exercise such other authority as ments are subject to a privilege under
is necessary to carry out the respon- Federal law. Upon payment of fees for
sibilities of the ALJ under this part. duplication, the defendant may obtain
(c) The ALJ does not have the au- copies of such documents.
thority to find Federal statutes or reg- (b) Upon written request to the re-
ulations invalid. viewing official, the defendant, may
also obtain a copy of all exculpatory
185.120 Prehearing conferences. information in the possession of the re-
(a) The ALJ may schedule prehearing viewing official or investigating offi-
conferences as appropriate. cial relating to the allegations in the

(b) Upon the motion of any party, the complaint, even if it is contained in a
ALJ shall schedule at least one pre- document that would otherwise be
55
185.122 5 CFR Ch. I (1116 Edition)
privileged. If the document would oth- (iii) Will not unduly delay the pro-
erwise be privileged, only that portion ceeding; and
containing exculpatory information (iv) Does not seek privileged informa-
must be disclosed. tion.
(c) The notice sent to the Attorney (4) The burden of showing that dis-
General from the reviewing official as covery should be allowed is on the
described in 185.105 is not discoverable party seeking discovery.
under any circumstances. (5) The ALJ may grant discovery sub-
(d) The defendant may file a motion ject to a protective order under
to compel disclosure of the documents 185.125.
subject to the provisions of this sec- (e) Depositions are to be handled in
tion. Such a motion may only be filed the following manner:
with the ALJ following the filing of an (1) If a motion for deposition is
answer pursuant to 185.109. granted, the ALJ shall issue a sub-
poena for the deponent, which may re-
185.122 Discovery. quire the deponent to produce docu-
(a) The following types of discovery ments. The subpoena shall specify the
are authorized: time and place at which the deposition
(1) Requests for production of docu- will be held.
ments for inspection and copying; (2) The party seeking to depose shall
serve the subpoena in the manner pre-
(2) Requests for admissions of the au-
scribed in 185.108.
thenticity of any relevant document or
(3) The deponent may file with the
of the truth of any relevant fact;
ALJ within 10 days of service a motion
(3) Written interrogatories; and
to quash the subpoena or a motion for
(4) Depositions. a protective order.
(b) For the purpose of this section (4) The party seeking to depose shall
and 185.123, the term documents in- provide for the taking of a verbatim
cludes information, documents, re- transcript of the deposition, which it
ports, answers, records, accounts, pa- shall make available to all other par-
pers, and other data and documentary ties for inspection and copying.
evidence. Nothing contained herein (f) Each party shall bear its own
shall be interpreted to require the cre- costs of discovery.
ation of a document.
(c) Unless mutually agreed to by the 185.123 Exchange of witness lists,
parties, discovery is available only as statements and exhibits.
ordered by the ALJ. The ALJ shall reg- (a) At least 15 days before the hear-
ulate the timing of discovery. ing or at such other time as may be or-
(d) Motions for discovery are to be dered by the ALJ, the parties shall ex-
handled according to the following pro- change witness lists, copies of prior
cedures: statements of proposed witnesses, and
(1) A party seeking discovery may copies of proposed hearing exhibits, in-
file a motion with the ALJ. Such a mo- cluding copies of any written state-
tion shall be accompanied by a copy of ments that the party intends to offer
the requested discovery, or in the case in lieu of live testimony in accordance
of depositions, a summary of the scope with 185.133(b). At the time the above
of the proposed deposition. documents are exchanged, any party
(2) Within 10 days of service, a party that intends to rely on the transcript
may file an opposition to the motion or deposition testimony in lieu of live
and/or a motion for protective order as testimony at the hearing, if permitted
provided in 185.125. by the ALJ, shall provide each party
(3) The ALJ may grant a motion for with a copy of the specific pages of the
discovery only if he or she finds that transcript it intends to introduce into
the discovery sought: evidence.
(i) Is necessary for the expeditious, (b) If a party objects, the ALJ may
fair, and reasonable consideration of not admit into evidence the testimony
the issues; of any witness whose name does not ap-

(ii) Is not unduly costly or burden- pear on the witness list or any exhibit
some; not provided to the opposing party as
56
provided above unless the ALJ finds requires to protect a party or person
good cause for the failure or that there from annoyance, embarrassment, op-
is no prejudice to the objecting party. pression, or undue burden or expense,
(c) Unless another party objects including one or more of the following:
within the time set by the ALJ, docu- (1) That the discovery not be had;
ments exchanged in accordance with (2) That the discovery may be had
paragraph (a) of this section shall be only on specified terms and conditions,
deemed to be authentic for the purpose including a designation of the time or
of admissibility at the hearing.
place;
185.124 Subpoenas for attendance at (3) That the discovery may be had
hearing. only through a method of discovery
(a) A party wishing to procure the other than that requested;
appearance and testimony of any indi- (4) That certain matters not be the
vidual at the hearing may request that subject of inquiry, or that the scope of
the ALJ issue a subpoena. discovery be limited to certain mat-
(b) A subpoena requiring the attend- ters;
ance and testimony of an individual (5) That discovery be conducted with
may also require the individual to no one present except persons des-
produce documents at the hearing. ignated by the ALJ;
(c) A party seeking a subpoena shall (6) That the contents of discovery or
file a written request therefor not less evidence be sealed;
than 15 days before the date fixed for (7) That a sealed deposition be opened
the hearing unless otherwise allowed only by order of the ALJ;
by the ALJ upon a showing of good (8) That a trade secret or other con-
cause. Such request shall specify any
fidential research, development, com-
documents to be produced and shall
mercial information, or facts per-
designate the witnesses and describe
the address and location thereof with taining to any criminal investigation,
sufficient particularity to permit such proceeding, or other administrative in-
witnesses to be found. vestigation not be disclosed or be dis-
(d) The subpoena shall specify the closed only in a designated way; or
time and place at which the witness is (9) That the parties simultaneously
to appear and any documents the wit- file specified documents or information
ness is to produce. enclosed in sealed envelopes to be
(e) The party seeking the subpoena opened as directed by the ALJ.
shall serve it in the manner prescribed
in 185.108. A subpoena on a party or 185.126 Evidence.
upon an individual under the control of (a) The ALJ shall determine the ad-
a party may be served by first class missibility of evidence.
mail. (b) Except as provided in this part,
(f) A party or the individual to whom the ALJ shall not be bound by the Fed-
the subpoena is directed may file with eral Rules of Evidence. However, the
the ALJ a motion to quash the sub-
ALJ may apply the Federal Rules of
poena within 10 days after service or on
Evidence where appropriate, e.g. to ex-
or before the time specified in the sub-
clude unreliable evidence.
poena for compliance if it is less than
10 days after service. (c) The ALJ shall exclude irrelevant
and immaterial evidence.
185.125 Protective order. (d) Although relevant, evidence may
(a) A party or a prospective witness be excluded if its probative value is
or deponent may file a motion for a substantially outweighed by the danger
protective order with respect to dis- of unfair prejudice, confusion of the
covery sought by an opposing party or issues, or by considerations of undue
with respect to the hearing, seeking to delay or needless presentation of cumu-
limit the availability or disclosure of lative evidence.
evidence. (e) Although relevant, evidence may

(b) In issuing a protective order, the be excluded if it is privileged under
ALJ may make any order which justice Federal law.
57
185.127 5 CFR Ch. I (1116 Edition)
(f) Evidence concerning offers of com- party is represented by a representa-

promise or settlement shall be inad- tive, service shall be made upon such
missible to the extent provided in Rule representative in lieu of the actual
408 of the Federal Rules of Evidence. party.
(g) The ALJ shall permit the parties (d) Proof of service. A certificate of
to introduce rebuttal witnesses and the individual serving the document by
evidence. personal delivery or by mail, setting
(h) All documents and other evidence forth the manner of service, shall be
offered or taken for the record shall be proof of service.
open to examination by all parties, un-
less otherwise ordered by the ALJ pur- 185.129 Computation of time.
suant to 185.125. (a) In computing any period of time
185.127 Fees. under this part or in an order issued
thereunder, the time begins with the
The party requesting a subpoena day following the act, event, or default,
shall pay the cost of the fees and mile- and includes the last day of the period,
age of any witness subpoenaed in the unless it is a Saturday, Sunday, or
amounts that would be payable to a legal holiday observed by the Federal
witness in a proceeding in United Government, in which event it includes
States District Court. A check for wit- the next business day.
ness fees and mileage shall accompany (b) When the period of time allowed
the subpoena when served, except that is less than 7 days, intermediate Satur-
when a subpoena is issued on behalf of days, Sundays, and legal holidays ob-
the authority, a check for witness fees served by the Federal Government
and mileage need not accompany the shall be excluded from the computa-
subpoena. tion.
185.128 Form, filing and service of (c) Where a document has been served
papers. or issued by placing it in the mail, an
additional 5 days will be added to the
(a) Form. Documents filed with the
time permitted for any response.
ALJ shall include an original and two
copies. Every pleading and paper filed 185.130 Motions.
in the proceeding shall contain a cap-
tion setting forth the title of the ac- (a) Any application to the ALJ for an
tion, the case number assigned by the order or ruling shall be by motion. Mo-
ALJ, and a designation of the paper tions shall state the relief sought, the
(e.g., motion to quash subpoena). Every authority relied upon, and the facts al-
pleading and paper shall be signed by, leged, and shall be filed with the ALJ
and shall contain the address and tele- and served on all other parties.
phone number of the party or the per- (b) Except for motions made during a
son on whose behalf the paper was prehearing conference or at the hear-
filed, or his or her representative. ing, all motions shall be in writing.
(b) Filing. Papers are considered filed The ALJ may require that oral mo-
when they are mailed. Date of mailing tions be reduced to writing.
may be established by a certificate (c) Within 15 days after a written mo-
from the party or its representative or tion is served, or such other time as
by proof that the document was sent by may be fixed by the ALJ, any party
certified or registered mail. may file a response to such motion.
(c) Service. A party filing a document (d) The ALJ may not grant a written
with the ALJ shall, at the time of fil- motion before the time for filing re-
ing, serve a copy of such document on sponses thereto has expired, except
every other party. Service upon any upon consent of the parties or fol-
party of any document other than lowing a hearing on the motion, but
those required to be served as pre- may overrule or deny such motion
scribed in 185.108 shall be made by de- without awaiting a response.
livering a copy or by placing a copy of (e) The ALJ shall make a reasonable
the document in the United States effort to dispose or all outstanding mo-
mail, postage prepaid and addressed, to tions prior to the beginning of the
the partys last known address. When a hearing.
58
185.131 Sanctions. sessment considering any aggravating

or mitigating factors.
(a) The ALJ may sanction a person
(b) The authority shall prove defend-
including any party or representative
ants liability and any aggravating fac-
for the following reasons:
tors by a preponderance of the evi-
(1) Failure to comply with an order,
dence.
rule, or procedure governing the pro-
(c) The defendant shall prove any af-
ceeding;
firmative defenses and any mitigating
(2) Failure to prosecute or defend an factors by a preponderance of the evi-
action; or dence.
(3) Engaging in other misconduct (d) The hearing shall be open to the
that interferes with the speedy, or- public unless otherwise closed by the
derly, or fair conduct of the pro- ALJ for good cause shown.
ceeding.
(b) Any such sanction, including but 185.133 Determining the amount of
not limited to those listed in para- penalties and assessments.
graphs (c), (d), and (e) of this section, (a) In determining an appropriate
shall reasonably relate to the severity amount of civil penalties and assess-
and nature of the failure or mis- ments, the ALJ and the authority
conduct. head, upon appeal, should evaluate any
(c) When a party fails to comply with circumstances that mitigate or aggra-
an order, including an order for taking vate the violation and should articu-
a deposition, the production of evi- late in their opinions the reasons that
dence within the partys control, or a support the penalties and assessments
request for admission, the ALJ may they impose. Because of the intangible
(1) Draw an inference in favor of the costs of fraud, the expense of inves-
requesting party with regard to the in- tigating such conduct, and the need to
formation sought; deter others who might be similarly
(2) In the case of requests for admis- tempted, double damages and a signifi-
sion, deem each matter of which an ad- cant civil penalty ordinarily should be
mission is requested to be admitted; imposed.
(3) Prohibit the party failing to com- (b) Although not exhaustive, the fol-
ply with such order from introducing lowing factors are among those that
evidence concerning, or otherwise rely- may influence the ALJ and the author-
ing upon, testimony relating to the in- ity head in determining the amount of
formation sought; and penalties and assessments to impose
(4) Strike any part of the pleadings with respect to the misconduct (i.e.,
or other submissions of the party fail- the false, fictitious, or fraudulent
ing to comply with such request. claims or statements) charged in the
(d) If a party fails to prosecute or de- complaint;
fend an action under this part com- (1) The number of false, fictitious or
menced by service of a notice of hear- fraudulent claims or statements;
ing, the ALJ may dismiss the action or (2) The time period over which such
may issue an initial decision imposing claims or statements were made;
penalties and assessments. (3) The degree of the defendants cul-
(e) The ALJ may refuse to consider pability with respect to the mis-
any motion, request, response, brief or conduct;
other document which is not filed in a (4) The amount of money or the value
timely fashion. of the property, services, or benefit
falsely claimed;
185.132 The hearing and burden of (5) The value of the Governments ac-
proof. tual loss as a result of the misconduct,
(a) Where requested in accordance including foreseeable consequential
with 185.109 the ALJ shall conduct a damages and the costs of investigation;
hearing on the record in order to deter- (6) The relationship of the amount
mine whether the defendant is liable imposed as civil penalties to the
for a civil penalty or assessment under amount of the Governments loss;

185.103 and, if so, the appropriate (7) The potential or actual impact of
amount of any such civil penalty or as- the misconduct upon public confidence
59
185.134 5 CFR Ch. I (1116 Edition)
in the management of Government pro- time for other parties to subpoena such
grams and operations; witness for cross-examination at the
(8) Whether the defendant has en- hearing. Prior written statements of
gaged in a pattern of the same or simi- witnesses proposed to testify at the
lar misconduct; hearing and deposition transcripts
(9) Whether the defendant attempted shall be exchanged as provided in
to conceal the misconduct; 185.123(a).
(10) The degree to which the defend- (c) The ALJ shall exercise reasonable
ant has involved others in the mis- control over the mode and order of in-
conduct or in concealing it; terrogating witnesses and presenting
(11) Where the misconduct of employ- evidence so as to
ees or agents is imputed to the defend- (1) Make the interrogation and pres-
ant, the extent to which the defend- entation effective for the ascertain-
ants practices fostered or attempted ment of the truth,
to preclude such misconduct; (2) Avoid needless consumption of
(12) Whether the defendant cooper- time, and
ated in or obstructed an investigation (3) Protect witnesses from harass-
of the misconduct; ment or undue embarrassment.
(13) Whether the defendant assisted
(d) The ALJ shall permit the parties
in identifying and prosecuting other
to conduct such cross-examination as
wrongdoers;
may be required for a full and true dis-
(14) The complexity of the program
closure of the facts.
or transaction, and the degree of the
(e) At the discretion of the ALJ, a
defendants sophistication with respect
witness may be cross-examined on mat-
to it, including the extent of the de-
ters relevant to the proceedings with-
fendants prior participation in the
out regard to the scope of his or her di-
program or in similar transactions;
rect examination. To the extent per-
(15) Whether the defendant has been
mitted by the ALJ, cross-examination
found, in any criminal, civil, or admin-
on matters outside the scope of direct
istrative proceeding to have engaged in
examination shall be conducted in the
similar misconduct or to have dealt
manner of direct examination and may
dishonestly with the Government of
proceed by leading questions only if
the United States or of a State, di-
the witness is a hostile witness, an ad-
rectly or indirectly;
(16) The need to deter the defendant verse party, or a witness identified
and others from engaging in the same with an adverse party.
or similar misconduct; and (f) Upon motion of any party, the
(17) The potential impact of the mis- ALJ shall order witnesses excluded so
conduct on the rights of others. that they cannot hear the testimony of
(c) Nothing in this section shall be other witnesses. This rule does not au-
construed to limit the ALJ or the authorize exclusion of the following:
thority head from considering any (1) A party who is an individual;
other factors that in any given case (2) In the case of a party that is not
may mitigate or aggravate the offense an individual, an officer or employee of
for which penalties and assessments the party designated by the partys
are imposed. representative; or
(3) An individual whose presence is
185.134 Witnesses. shown by a party to be essential to the
(a) Except as provided in paragraph presentation of its case, including an
(b) of this section, testimony at the individual employed by the Govern-
hearing shall be given orally by wit- ment engaged in assisting the rep-
nesses under oath or affirmation. resentative for the Government.
(b) At the discretion of the ALJ, tes-
timony may be admitted in the form of 185.135 The record.
a written statement or deposition. Any (a) The hearing shall be recorded and
such written statement must be pro- transcribed. Transcripts may be ob-
vided to all others parties along with tained following the hearing from the
the last known address of such witness, ALJ at a cost not to exceed the actual
in a manner which allows sufficient cost of duplication.
60
(b) The transcript of testimony, ex- of the reason for the delay and shall set
hibits and other evidence admitted at a new deadline.
the hearing, and all papers and re- (d) Unless the initial decision of the
quests filed in the proceeding con- ALJ is timely appealed to the author-
stitute the record for the decision by ity head, or a motion for reconsider-
the ALJ and the authority head. ation of the initial decision is timely
(c) The record may be inspected and filed, the initial decision shall con-
copied (upon payment of a reasonable stitute the final decision of the author-
fee) by anyone, unless otherwise ority head and shall be final and binding
dered by the ALJ pursuant to 185.125. on the parties 30 days after it is issued
by the ALJ.
185.136 Post-hearing briefs.
185.138 Reconsideration of initial de-
The ALJ may require the parties to cision.
file post-hearing briefs. In any event,
any party may file a post-hearing brief. (a) Except as provided in paragraph
The ALJ shall fix the time for filing (d) of this section, any party may file a
such briefs, not to exceed 60 days from motion for reconsideration of the ini-
the date the parties receive the tran- tial decision within 20 days of receipt
script of the hearing or, if applicable, of the initial decision. If service was
the stipulated record. Such briefs may made by mail, receipt will be presumed
be accompanied by proposed findings of to be 5 days from the date of mailing in
fact and conclusions of law. The ALJ the absence of contrary proof.
may permit the parties to file reply (b) Every such motion must set forth
briefs. the matters claimed to have been erro-
neously decided and the nature of the
185.137 Initial decision. alleged errors. Such motion shall be
accompanied by a supporting brief.
(a) The ALJ shall issue an initial de- (c) Responses to such motions shall
cision based only on the record, which be allowed only upon request of the
shall contain findings of fact, conclu- ALJ.
sions of law, and the amount of any (d) No party may file a motion for re-
penalties and assessments imposed. consideration of an initial decision
(b) The findings of fact shall include that has been revised in response to a
a finding on each of the following previous motion for reconsideration.
issues: (e) The ALJ may dispose of a motion
(1) Whether the claims or statements for reconsideration by denying it or by
identified in the complaint, or any por- issuing a revised initial decision.
tions thereof, violate 185.103. (f) If the ALJ denies a motion for re-
(2) If the person is liable for penalties consideration, the initial decision shall
or assessments, the appropriate constitute the final decision of the au-
amount of any such penalties or assess- thority head and shall be final and
ments considering any mitigating or binding on all parties 30 days after the
aggravating factors that he or she finds ALJ denies the motion, unless the ini-
in the case, such as those described in tial decision is timely appealed to the
185.133. authority head in accordance with
(c) The ALJ shall promptly serve the 185.139.
initial decision on all parties within 90 (g) If the ALJ issues a revised initial
days after the time for submission of decision, that decision shall constitute
post-hearing briefs and reply briefs (if the final decision of the authority head
permitted) has expired. The ALJ shall and shall be final and binding on the
at the same time serve all parties with parties 30 days after it is issued, unless
a statement describing the right of any it is timely appealed to the authority
defendant determined to be liable for a head in accordance with 185.139.
civil penalty or assessment to file a
motion for reconsideration with the 185.139 Appeal to authority head.
ALJ or a notice of appeal with the au- (a) Any defendant who has filed a
thority head. If the ALJ fails to meet timely answer and who is determined
the deadline contained in this para- in an initial decision to be liable for a
graph, he or she shall notify the parties civil penalty or assessment may appeal
61
185.140 5 CFR Ch. I (1116 Edition)
such decision to the authority head by ing, the authority head shall remand
filing a notice of appeal with the au- the matter to the ALJ for consider-
thority head in accordance with this ation of such additional evidence.
section. (i) The authority head may affirm,
(1) A notice of appeal may be filed at reduce, reverse, compromise, remand
any time within 30 days after the ALJ or settle any penalty or assessment de-
issues an initial decision. However, if termined by the ALJ in any initial de-
another party files a motion for recon- cision.
sideration under 185.138, consideration (j) The authority head shall promptly
of the appeal shall be stayed automati- serve each party to the appeal with a
cally pending resolution of the motion copy of the decision of the authority
for reconsideration. head and a statement describing the
(2) If a motion for reconsideration is right of any person determined to be
timely filed, a notice of appeal shall be liable for a penalty or assessment to
filed within 30 days after the ALJ de- seek judicial review.
nies the motion or issues a revised ini-
(k) Unless a petition for review is
tial decision, whichever applies.
filed as provided in section 3805 of title
(3) If no motion for reconsideration is
timely filed, a notice of appeal must be 31, United States Code, after a defend-
filed within 30 days after the ALJ ant has exhausted all administrative
issues the initial decision. remedies under this part and within 60
(4) The authority head may extend days after the date on which the au-
the initial 30-day period for an addi- thority head serves the defendant with
tional 30 days if the defendant files a copy of the authority heads decision,
with the authority head a request for a determination that a defendant is lia-
an extension within the initial 30-day ble under 185.103 is final and not sub-
period and shows good cause. ject to judicial review.
(b) If the defendant files a timely no- [60 FR 7891, Feb. 10, 1995; 60 FR 22249, May 5,
tice of appeal with the authority head 1995]
and the time for filing motions for re-
consideration under 185.138 has ex- 185.140 Stays ordered by the Depart-
pired, the ALJ shall forward the record ment of Justice.
of the proceeding to the authority If, at any time, the Attorney General
head. or an Assistant Attorney General des-
(c) A notice of appeal shall be accom- ignated by the Attorney General trans-
panied by a written brief specifying ex- mits to the authority head a written
ceptions to the initial decision and rea- finding that continuation of the admin-
sons supporting the exceptions. istrative process described in this part
(d) The representative for OPM may
with respect to a claim or statement
file a brief in opposition to exceptions
may adversely affect any pending or
within 30 days of receiving the notice
potential criminal or civil action re-
of appeal and accompanying brief.
lated to such claim or statement, the
(e) There is no right to appear per-
authority head shall stay the process
sonally before the authority head.
immediately. The authority head may
(f) There is no right to appeal an in-
order the process resumed only upon
terlocutory ruling by the ALJ.
receipt of the written authorization of
(g) In reviewing the initial decision,
the Attorney General or of the Assist-
the authority head shall not consider
ant Attorney General who ordered the
any objection that was not raised be-
fore the ALJ unless the objecting party stay.
can demonstrate extraordinary cir- 185.141 Stay pending appeal.
cumstances causing the failure to raise
the objection. (a) An initial decision is stayed auto-
(h) If any party demonstrates to the matically pending disposition of a mo-
satisfaction of the authority head that tion for reconsideration or of an appeal
additional evidence not presented at to the authority head.
such hearing is material and that there (b) No administrative stay is avail-
were reasonable grounds for the failure able following a final decision of the
to present such evidence at such hear- authority head.
62
185.142 Judicial review. or during the pendency of any action to

Section 3805 of title 31, United States collect penalties and assessments
Code, authorizes judicial review by an under 185.143.
appropriate United States District (d) The Attorney General has exclu-
Court of a final decision of the author- sive authority to compromise or settle
ity head imposing penalties and/or as- a case under this part during the pend-
sessments under this part and specifies ency of any review under 185.142 or of
the procedures for such review. any action to recover penalties and as-
sessments under section 3806 to title 31,
185.143 Collection of civil penalties United States Code.
and assessments. (e) The investigating official may
Sections 3806 and 3808(b) of title 31, recommend settlement terms to the re-
United States Code, authorize actions viewing official, the authority head, or
for collection of civil penalties and as- the Attorney General, as appropriate.
sessments imposed under this part and The reviewing official may recommend
specify the procedures for such actions. settlement terms to the authority
head, or the Attorney General, as ap-
185.144 Right to administrative off- propriate.
set. (f) Any compromise or settlement
The amount of any penalty or assess- must be in writing.
ment which has become final, or for
which a judgment has been entered 185.147 Limitations.
under 185.142 or 185.143, or any (a) The notice of hearing with respect
amount agreed upon in a compromise to a claim or statement must be served
or settlement under 185.146, may be in the manner specified in 185.108
collected by administrative offset within 6 years after the date on which
under section 3716 of title 31, United such a claim or statement is made.
States Code, except that an adminis- (b) If the defendant fails to file a
trative offset may not be made under timely answer, service of a notice
section 3716 against a refund of an under 185.110(b) shall be deemed a no-
overpayment of Federal taxes, then or tice of hearing for purposes of this sec-
later owing by the United States to the tion.
defendant. (c) the statute of limitations may be
185.145 Deposit in Treasury of the executed by written agreement of the
United States. parties.
All amounts collected pursuant to
this part shall be deposited as miscella- PART 210BASIC CONCEPTS AND
neous receipts in the Treasury of the DEFINITIONS (GENERAL)
United States, except as provided in
section 3806(g) of title 31, United States Subpart AApplicability of Regulations;
Code. Definitions
185.146 Compromise or settlement. Sec.

210.101 Applicability of various parts of reg-
(a) Parties may make offers of com- ulations.
promise or settlement at any time. 210.102 Definitions.
(b) The reviewing official has the ex-
clusive authority to compromise or AUTHORITY: 5 U.S.C. 1302, 3301, 3302; E.O.
10577, 3 CFR, 19541958 Comp. p. 218.
settle a case under this part at any
time after the date on which the re-
viewing official is permitted to issue a Subpart AApplicability of
complaint and before the date on which Regulations; Definitions
the ALJ issues an initial decision.
(c) The authority head has exclusive 210.101 Applicability of various parts
authority to compromise or settle a of regulations.
case under this part at any time after (a) General. In most parts, the appli-
the date on which the ALJ issues an cability of the part is stated specifi-
initial decision, except during the cally in the part or is otherwise appar-
pendency of any review under 185.142 ent from the substance of the part.
63
210.102 5 CFR Ch. I (1116 Edition)
(b) Parts 315 through 339. Parts 315 (7) Metropolitan area of Washington,
through 339 of this chapter apply to all DC., means the District of Columbia;
positions in the competitive service Alexandria, Fairfax, and Falls Church
and to all incumbents of those posi- Cities, Va.; Arlington, Fairfax,
tions; and, except as specified by or in Loudoun, and Prince William Counties,
an individual part, these parts do not Va.; and Charles, Montgomery, and
apply to positions in the excepted serv- Prince Georges Counties, Md.
ice or to incumbents of those positions. (8) Noncompetitive action means a pro-
[33 FR 12407, Sept. 4, 1968, as amended at 44 motion, demotion, reassignment,
FR 45587, Aug. 3, 1979] transfer, reinstatement, or an appoint-
ment based on prior service.
210.102 Definitions. (9) Overseas means outside the conti-
(a) The definitions in paragraph (b) of nental United States, but does not in-
this section apply throughout this clude Alaska, Guam, Hawaii, the
chapter, except when a defined term is Isthmus of Panama, Puerto Rico, or
specifically modified in or specifically the Virgin Islands.
defined for the purpose of a particular (10) Position change means a pro-
part. motion, demotion, or reassignment.
(b) In this chapter:
(11) Promotion means a change of an
(1) Appointing officer means a person
employee, while serving continuously
having power by law, or by lawfully
delegated authority, to make appoint- within the same agency:
ments to positions in the service of the (i) To a higher grade when both the
Federal Government or the govern- old and the new positions are under the
ment of the District of Columbia. General Schedule or under the same
(2) OPM means the Office of Per- type graded wage schedule; or
sonnel Management. (ii) To a position with a higher rate
(3) Days, unless otherwise defined or of pay when both the old and the new
limited, means calendar days and not positions are under the same type
workdays. In computing a period of ungraded wage schedule, or are in dif-
time prescribed in this chapter, the day ferent pay method categories.
of the action or event after which the (12) Reassignment means a change of
designated period of time begins to run an employee, while serving continu-
is not to be included. The last day of ously within the same agency, from
the period so computed is to be in- one position to another without pro-
cluded unless it is a Saturday, a Sun- motion or demotion.
day, or a legal holiday in which event (13) Reemployed annuitant means an
the period runs until the end of the employee whose annuity under sub-
next day which is neither a Saturday, a chapter III of chapter 83 of title 5,
Sunday, nor a legal holiday. United States Code, was continued on
(4) Demotion means a change of an reemployment in an appointive posi-
employee, while serving continuously tion on or after October 1, 1956.
within the same agency: (14) Register means a list of qualified
(i) To a lower grade when both the
applicants compiled in order of relative
old and the new positions are under the
standing for certification.
General Schedule or under the same
type graded wage schedule; or (15) Reinstatement means the non-
(ii) To a position with a lower rate of competitive reemployment for service
pay when both the old and the new po- as a career or career-conditional em-
sitions are under the same type ployee of a person formerly employed
ungraded wage schedule, or are in dif- in the competitive service who had a
ferent pay method categories. competitive status or was serving pro-
(5) Eligible means an applicant who bation when he was separated from the
meets the minimum requirements for service.
entrance to an examination and is (16) Status quo employee means an em-
rated 70 or more in the examination by ployee who failed to acquire a competi-
OPM. tive status when the position in which

(6) Employee means a civilian officer he was serving was placed in the com-
or employee. petitive service by a statute, Executive
64
order, or Civil Service rule, which per- ginning February 1, 1955, and ending
mitted his retention without the acqui- October 14, 1976;
sition of status. (5) During the period beginning Au-
(17) Tenure means the period of time gust 2, 1990, and ending January 2, 1992;
an employee may reasonably expect to or
serve under his current appointment. It (6) For more than 180 consecutive
is granted and governed by the type of days, other than for training, any part
appointment under which an employee of which occurred during the period be-
is currently serving without regard to ginning September 11, 2001, and ending
whether he has a competitive status or on August 31, 2010, the last day of Oper-
whether his appointment is in a com- ation Iraqi Freedom.
petitive position or in an excepted po- (b) Disabled Veteran means a person
sition. who has been discharged or released
(18) Transfer means a change of an from active duty in the armed forces
employee, without a break in service of under honorable conditions performed
1 full workday, from a position in one at any time, or who has a certification
agency to a position in another agency. as defined in paragraph (h) of this sec-
tion, and who has established the
[33 FR 12407, Sept. 4, 1968, as amended at 34 present existence of a service-con-
FR 19495, Dec. 10, 1969; 38 FR 22535, Aug. 22,
1973]
nected disability or is receiving com-
pensation, disability retirement bene-
fits, or a pension because of a statute
PART 211VETERAN PREFERENCE administered by the Department of
Veterans Affairs or a military depart-
Sec. ment.
211.101 Purpose. (c) Sole survivor veteran means a per-
211.102 Definitions. son who was discharged or released
211.103 Administration of preference. from a period of active duty after Au-
AUTHORITY: 5 U.S.C. 1302, 2108, 2108a. gust 29, 2008, by reason of a sole survi-
SOURCE: 79 FR 77835, Dec. 29, 2014, unless vorship discharge (as that term is de-
otherwise noted. fined in 10 U.S.C. 1174(i)), and who
meets the definition of a veteran in
211.101 Purpose. paragraph (a) of this section, with the
exception that he or she is not required
The purpose of this part is to define
to meet any of the length of service re-
veterans preference and the adminis-
quirements prescribed by paragraph
tration of preference in Federal em-
(a).
ployment. (5 U.S.C. 2108, 2108a)
(d) Preference eligible means a vet-
211.102 Definitions. eran, disabled veteran, sole survivor
veteran, spouse, widow, widower, or
For the purposes of preference in mother who meets the definition of
Federal employment, the following preference eligible in 5 U.S.C. 2108.
definitions apply: (1) Preference eligibles other than
(a) Veteran means a person who has sole survivor veterans are entitled to
been discharged or released from active have 5 or 10 points added to their
duty in the armed forces under honor- earned score on a civil service exam-
able conditions, or who has a certifi- ination in accordance with 5 U.S.C.
cation as defined in paragraph (h) of 3309.
this section, if the active duty service (2) Under numerical ranking and se-
was performed: lection procedures for competitive
(1) In a war; service hiring, preference eligibles are
(2) In a campaign or expedition for entered on registers in in the order pre-
which a campaign badge has been au- scribed by section 332.401 of this chap-
thorized; ter.
(3) During the period beginning April (3) Under excepted service examining
28, 1952, and ending July 1, 1955; procedures in part 302 of this chapter,
(4) For more than 180 consecutive preference eligibles are listed ahead of
days, other than for training, any part persons with the same ratings who are
of which occurred during the period be- not preference eligibles, or listed ahead
65
211.103 5 CFR Ch. I (1116 Edition)
of non-preference eligibles if numerical verified through a DD form 214 or

scores have not been assigned. equivalent documentation.
(4) Under alternative raking and se-
lection procedures, i.e., category rat- 211.103 Administration of preference.
ing, preference eligibles are listed Agencies are responsible for making
ahead of individuals who are not pref- all preference determinations except
erence eligibles in accordance with 5 for preference based on a common law
U.S.C. 3319. marriage. Such a claim must be re-
(5) Preference eligibles, other than ferred to OPMs General Counsel for de-
those who have not yet been discharged cision.
or released from active duty, are ac-
corded a higher retention standing
than non-preference eligibles in the PART 212COMPETITIVE SERVICE
event of a reduction in force in accord- AND COMPETITIVE STATUS
ance with 5 U.S.C. 3502.
(6) Veterans preference does not Subpart ACompetitive Service
apply, however, to inservice placement Sec.
actions such as promotions. 212.101 Definitions.
(e) Armed forces means the United 212.102 Authority to make determinations.
States Army, Navy, Air Force, Marine
Corps, and Coast Guard. Subpart B [Reserved]
(f) Active duty or active military duty:
(1) For veterans defined in para- Subpart CCompetitive Status
graphs (a)(1) through (3) and disabled 212.301 Competitive status defined.
veterans defined in paragraph (b) of
this section, means active duty with Subpart DEffect of Competitive Status on
military pay and allowances in the Position
armed forces, and includes training, de-
termining physical fitness, and service 212.401 Effect of competitive status on posi-
in the Reserves or National Guard; and tion.
(2) For veterans defined in para- AUTHORITY: 5 U.S.C. 1302, 3301, 3302; E.O.
graphs (a)(4) through (6) of this section, 10577, 3 CFR, 19541958 Comp., p. 218.
means full-time duty with military pay
SOURCE: 33 FR 12408, Sept. 4, 1968, unless
and allowances in the armed forces, otherwise noted.
and does not include training, deter-
mining physical fitness, or service in
the Reserves or National Guard. Subpart ACompetitive Service
(g) Discharged or released from active
duty means with either an honorable or
general discharge from active duty in In this chapter:
the armed forces. The Departments of (a) Competitive service has the mean-
Defense is responsible for admin- ing given that term by section 2102 of
istering and defining military dis- title 5, United States Code, and in-
charges. cludes:
(h) Certification means any written (1) All civilian positions in the execu-
document from the armed forces that tive branch of the Federal Government
certifies the service member is ex- not specifically excepted from the civil
pected to be discharged or released service laws by or pursuant to statute,
from active duty service in the armed by the President, or by the Office of
forces under honorable conditions not Personnel Management, and not in the
later than 120 days after the date the Senior Executive Service; and
certification is submitted for consider-
(2) All positions in the legislative and
ation in the hiring process, at the time
judicial branches of the Federal Gov-
and in the manner prescribed by the
applicable job opportunity announce- ernment and in the government of the
District of Columbia specifically made
ment. Prior to appointment, the serv-

ice members character of service and subject to the civil service laws by
qualifying discharge or release must be statute.
66
(b) Competitive position means a posi- PART 213EXCEPTED SERVICE

tion in the competitive service.
(5 U.S.C. 2102) Subpart AGeneral Provisions
[33 FR 12408, Sept. 4, 1968, as amended at 45 Sec.

FR 62413, Sept. 19, 1980] 213.101 Definitions.
213.102 Identification of positions in Sched-
ule A, B, C, or D.
212.102 Authority to make deter- 213.103 Publication of excepted appointing
minations. authorities in Schedules A, B, C, and D.
OPM determines finally whether a 213.104 Special provisions for temporary,
position is in the competitive service. time-limited, intermittent, or seasonal
appointments in Schedule A, B, C, or D.
Subpart B [Reserved] Subpart B [Reserved]

Subpart CExcepted Schedules
Subpart CCompetitive Status
SCHEDULE A
212.301 Competitive status defined. 213.3101 Positions other than those of a con-
In this chapter, competitive status fidential or policy-determining character
means an individuals basic eligibility for which it is impracticable to examine.
213.3102 Entire executive civil service.
for noncompetitive assignment to a 213.3199 Temporary organizations.
competitive position. Competitive sta-
tus is acquired by completion of a pro- SCHEDULE B
bationary period under a career-condi- 213.3201 Positions other than those of a con-
tional or career appointment, or under fidential or policy-determining character
a career executive assignment in the for which it is not practicable to hold a
former executive assignment system, competitive examination.
213.3202 Entire executive civil service.
following open competitive examina-
tion, or by statute, Executive order, or SCHEDULE C
the Civil Service rules, without open 213.3301 Positions of a confidential or pol-
competitive examination. An indi- icy-determining nature.
vidual with competitive status may be, 213.3302 Temporary transitional Schedule C
without open competitive examination, positions.
reinstated, transferred, promoted, reas- SCHEDULE D
signed, or demoted, subject to condi-
213.3401 Positions other than those of a con-
tions prescribed by the Civil Service fidential or policy determining character
rules and regulations. for which the competitive service re-
quirements make impracticable the ade-
quate recruitment of sufficient numbers
FR 10123, Mar. 24, 1992]
of students attending qualifying edu-
cational institutions or individuals who
Subpart DEffect of Competitive have recently completed qualifying edu-
Status on Position cational programs.
213.3402 Entire executive civil service; Path-
ways Programs.
212.401 Effect of competitive status
on position. AUTHORITY: 5 U.S.C. 3161, 3301 and 3302; E.O.
10577, 3 CFR 19541958 Comp., p. 218; Sec.
(a) An employee is in the competitive 213.101 also issued under 5 U.S.C. 2103. Sec.
service when he has competitive status 213.3102 also issued under 5 U.S.C. 3301, 3302,
and is in a competitive position under 3307, 8337(h), and 8456; E.O. 13318, 3 CFR 1982
a nontemporary appointment. Comp., p. 185; 38 U.S.C. 4301 et seq.; Pub. L.
(b) An employee in the competitive 105339, 112 Stat 318283; E.O. 13162; E.O. 12125,
3 CFR 1979 Comp., p. 16879; and E.O. 13124, 3
service at the time his position is first CFR 1999 Comp., p. 31103; and Presidential
listed under Schedule A, B, or C re- MemorandumImproving the Federal Re-
mains in the competitive service while cruitment and Hiring Process (May 11, 2010).
he occupies that position. Sec. 213.101 also issued under 5 U.S.C. 2103.
Sec. 213.3102 also issued under 5 U.S.C. 3301,

3302, 3307, 8337(h), and 8456; 38 U.S.C. 4301 et
seq.; and Pub. L. 105339, 112 Stat. 318283.
67
213.101 5 CFR Ch. I (1116 Edition)
SOURCE: 46 FR 20147, Apr. 3, 1981, unless positions into Schedule A, B, C, or D,
otherwise noted. as applicable. Unless otherwise speci-
fied in a particular appointing author-
Subpart AGeneral Provisions ity, an agency may make Schedule A,
B, C, or D appointments on either a
213.101 Definitions. permanent or nonpermanent basis,
In this chapter: with any appropriate work schedule
(a) Excepted service has the meaning (i.e., full-time, part-time, seasonal, on-
given that term by section 2103 of title call, or intermittent).
5, United States Code, and includes all (ii) When OPM establishes eligibility
positions in the executive branch of the requirements (e.g., residence, family
Federal Government which are specifi- income) for appointment under par-
cally excepted from the competitive ticular Schedule A, B, or D exceptions,
service by or pursuant to statute, by an individuals eligibility for appoint-
the President, or by the Office of Per- ment must be determined before ap-
sonnel Management, and which are not
pointment and without regard to any
in the Senior Executive Service.
conditions that will result from the ap-
(b) Excepted position means a position
in the excepted service. pointment.
(c) For purposes of making any such
(5 U.S.C. 2103) determinations, positions includes:
213.102 Identification of positions in (1) Those that are intended to be re-
Schedule A, B, C, or D. moved indefinitely from the competi-
tive service because the nature of the
(a) As provided in 5 U.S.C. 3302, the
position itself precludes it from being
President may prescribe rules gov-
in the competitive service (e.g., be-
erning the competitive service. The
cause it is impracticable to examine
rules shall provide, as nearly as condi-
tions of good administration warrant, for the knowledge, skills, and abilities
for required for the job); and
(1) Necessary exceptions of positions (2) Those that are intended to be re-
from the competitive service; and moved temporarily from the competi-
(2) Necessary exceptions from the tive service to allow for targeted re-
provisions of sections 2951, 3304(a), 3321, cruiting and hiring from among a par-
7202, and 7203 of title 5, U.S. Code. ticular class of persons, as defined by
(b) The President delegated authority the Office of Personnel Management,
to the Office of Personnel Management with the opportunity for the persons
(OPM) in Civil Service Rule VI to ex- selected for those positions to convert
cept positions from the competitive to the competitive service at a later
service when OPM determines that: date.
(1) Appointments thereto through
[77 FR 28213, May 11, 2012]
competitive examination are not prac-
ticable; or 213.103 Publication of excepted ap-
(2) Recruitment from among students pointing authorities in Schedules A,
attending qualifying educational insti- B, C, and D.
tutions or individuals who have re-
cently completed qualifying edu- (a) Schedule A, B, C, and D appoint-
cational programs can better be ing authorities available for use by all
achieved by devising additional means agencies will be published as regula-
for recruiting and assessing candidates tions in the FEDERAL REGISTER and the
that diverge from the processes gen- Code of Federal Regulations.
erally applicable to the competitive (b) Establishment and revocation of
service. Schedule A, B, and C appointing au-
(3)(i) Upon determining that any po- thorities applicable to a single agency
sition or group of positions, as defined shall be published monthly in the No-
in 302.101(c), should be excepted in- tices section of the FEDERAL REGISTER.
definitely or temporarily from the (c) A consolidated listing of all
competitive service, the Office of Per- Schedule A, B, and C authorities cur-

sonnel Management will authorize rent as of June 30 of each year, with as-
placement of the position or group of signed authority numbers, shall be
68
published annually as a notice in the (2) Restrictions on refilling positions

FEDERAL REGISTER. under temporary appointments. Except as
provided in paragraph (b)(3) of this sec-
[47 FR 28902, July 2, 1982, as amended at 62
FR 18505, Apr. 16, 1997; 77 FR 28213, May 11, tion, an agency may not fill any posi-
2012] tion (or its successor) by a temporary
appointment in Schedule A, B, C, or D
213.104 Special provisions for tem- if that position had previously been
porary, time-limited, intermittent, filled by temporary appointment(s) in
or seasonal appointments in Sched- either the competitive or excepted
ule A, B, C, or D. service for an aggregate of 2 years, or
(a) When OPM specifies that appoint- 24 months, within the preceding 3-year
ments under a particular Schedule A, period. This limitation does not apply
B, C, or D authority must be tem- to programs established to provide for
porary, intermittent, or seasonal, or systematic exchange between a Federal
when agencies elect to make tem- agency and non-Federal organizations.
porary, intermittent, or seasonal ap- (3) Exceptions to the general limits. The
pointments in Schedule A, B, C, or D, service limits and restrictions on refill-
those terms have the following meaning positions set out in this section do
ing: not apply when:
(1) Temporary appointments, unless (i) Positions involve intermittent or
otherwise specified in a particular seasonal work, and employment in the
Schedule A, B, C, or D exception, are same or a successor position under one
made for a specified period not to ex- or more appointing authorities totals
ceed 1 year and are subject to the time less than 6 months (1,040 hours), ex-
limits in paragraph (b) of this section. cluding overtime, in a service year.
Time-limited appointments made for The service year is the calendar year
more than 1 year are not considered to that begins on the date of the employ-
be temporary appointments, and are ees initial appointment in the agency.
not subject to these time limits. Should employment in a position filled
(2) Intermittent positions are positions under this exception total 6 months or
in which work recurs at sporadic or ir- more in any service year, the general
regular intervals so that an employees limits set out in this section will apply
tour of duty cannot be scheduled in ad- to subsequent extension or reappoint-
vance of the administrative workweek. ment unless OPM approves continued
(3) Seasonal positions involve annually exception under this section. An indi-
recurring periods of employment last- vidual may be employed for training
ing less than 12 months each year. for up to 120 days following initial ap-
(b) Temporary appointments, as de- pointment and up to 2 weeks a year
fined in paragraph (a)(1) of this section, thereafter without regard to the serv-
are subject to the following limits: ice year limitation.
(1) Service limits. Agencies may make (ii) Positions are filled under an au-
temporary appointments for a period thority established for the purpose of
not to exceed 1 year, unless the appli- enabling the appointees to continue or
cable Schedule A, B, C, or D authority enhance their education, or to meet
specifies a shorter period. Except as academic or professional qualification
provided in paragraph (b)(3) of this sec- requirements. These include the au-
tion, agencies may extend temporary thorities set out in paragraphs (r) and
appointments for no more than 1 addi- (s) of 213.3102 and paragraphs (a), (b),
tional year (24 months of total service). and (c) of 213.3402, and authorities
Appointment to a successor position granted to individual agencies for use
(i.e., a position that replaces and ab- in connection with internship, fellow-
sorbs the original position) is consid- ship, residency, or student programs.
ered to be an extension of the original (iii) OPM approves extension of spe-
appointment. Appointment to a posi- cific temporary appointments beyond 2
tion involving the same basic duties, in years (24 months total service) when
the same major subdivision of the necessitated by major reorganizations
agency, and in the same local com- or base closings or other rare and un-
muting area is also considered to be an usual circumstances. Requests based
extension of the original appointment. on major reorganization, base closing,
69
213.3101 5 CFR Ch. I (1116 Edition)
restructuring, or other unusual cir- be confined to graduates of recognized

cumstances that apply agencywide law schools or persons having equiva-
must be made by an official at the lent experience and shall be for periods
headquarters level of the Department not to exceed 14 months pending admis-
or agency. Requests involving extension to the bar. No person shall be
sion of appointments to a specific posi- given more than one appointment
tion or project based on other unusual under this paragraph. However, an ap-
circumstances may be submitted by pointment which was initially made for
the employing office to the appropriate less than 14 months may be extended
OPM service center. for not to exceed 14 months in total du-
[59 FR 46897, Sept. 13, 1994, as amended at 59 ration.
FR 64841, Dec. 16, 1994; 62 FR 18505, Apr. 16, (f)(h) [Reserved]
1997; 62 FR 55725, Oct. 28, 1997; 62 FR 63628, (i) Temporary and less-than-full time
Dec. 2, 1997; 77 FR 28213, May 11, 2012] positions for which examining is im-
practicable. These are:
Subpart B [Reserved] (1) Positions in remote/isolated loca-
tions where examination is impracti-
Subpart CExcepted Schedules cable. A remote/isolated location is
outside the local commuting area of a
SCHEDULE A population center from which an em-
213.3101 Positions other than those ployee can reasonably be expected to
of a confidential or policy-deter- travel on short notice under adverse
mining character for which it is im- weather and/or road conditions which
practicable to examine. are normal for the area. For this pur-
Upon specific authorization by OPM, pose, a population center is a town
agencies may make appointments with housing, schools, health care,
under this section to positions which stores and other businesses in which
are not of a confidential or policy-de- the servicing examining office can
termining character, and which are not schedule tests and/or reasonably expect
in the Senior Executive Service, for to attract applicants. An individual ap-
which it is not practicable to examine. pointed under this authority may not
Examining for this purpose means ap- be employed in the same agency under
plication of the qualification standards a combination of this and any other ap-
and requirements established for the pointment to positions involving re-
competitive service. Positions filled lated duties and requiring the same
under this authority are excepted from qualifications for more than 1,040
the competitive service and constitute workings hour in a service year. Tem-
Schedule A. For each authorization porary appointments under this au-
under this section, OPM shall assign an thority may be extended in 1-year in-
identifying number from 213.3102 crements, with no limit on the number
through 213.3199 to be used by the ap- of such extensions, as an exception to
pointing agency in recording appoint- the service limits in 213.104.
ments made under that authorization. (2) Positions for which a critical hir-
ing need exists. This includes both
[46 FR 20147, Apr. 3, 1981, as amended at 46
FR 45323, Sept. 11, 1981, 59 FR 64841, Dec. 16,
short-term positions and continuing
1994; 62 FR 19900, Apr. 24, 1997] positions that an agency must fill on
an interim basis pending completion of
213.3102 Entire executive civil serv- competitive examining, clearances, or
ice. other procedures required for a longer
(a) Positions of Chaplain and Chap- appointment. Appointments under this
lains Assistant. authority may not exceed 30 days and
(b) [Reserved] may be extended for up to an addi-
(c) Positions to which appointments tional 30 days if continued employment
are made by the President without con- is essential to the agencys operations.
firmation by the Senate. The appointments may not be used to
(d) Attorneys. extend the service limit of any other

(e) Law clerk trainee positions. Ap- appointing authority. An agency may
pointments under this paragraph shall not employ the same individual under
70
this authority for more than 60 days in limit will receive appointments with-
any 12-month period. out time limit under this authority.
(3) Other positions for which OPM de- These appointees may be reassigned,
termines that examining is impracti- promoted, or demoted to any position
cable. within the same agency for which they
(j) Positions filled by current or qualify.
former Federal employees eligible for (ii) Individuals who are eligible for
placement under special statutory pro- placement under 353.110 based on a
visions. Appointments under this au- time-limited appointment will be given
thority are subject to the following appointments for a time period equal
conditions. to the unexpired portion of their pre-
(1) Eligible employees. (i) Persons previous appointment.
viously employed as National Guard (k) Positions without compensation
Technicians under 32 U.S.C. 709(a) who provided appointments thereto meet
are entitled to placement under the requirements of applicable laws re-
353.110 of this chapter, or who are ap- lating to compensation.
plying for or receiving an annuity (l) Positions requiring the temporary
under the provisions of 5 U.S.C. 8337(h) or intermittent employment of profes-
or 8456 by reason of a disability that sional, scientific, or technical experts
disqualifies them from membership in for consultation purposes.
the National Guard or from holding the
(m) [Reserved]
military grade required as a condition
of their National Guard employment. (n) Any local physician, surgeon, or
(ii) Executive branch employees dentist employed under contract or on
(other than employees of intelligence a part-time or fee basis.
agencies) who are entitled to place- (o) Positions of a scientific, profes-
ment under 353.110 but who are not el- sional, or analytical nature when filled
igible for reinstatement or non- by bona fide members of the faculty of
competitive appointment under the an accredited college or university who
provisions of part 315 of this chapter. have special qualifications for the posi-
(iii) Legislative and judicial branch tions to which appointed. Employment
employees and employees of the intel- under this provision shall not exceed
ligence agencies defined in 5 U.S.C. 130 working days a year.
2302(a)(2)(C)(ii) who are entitled to (p)(q) [Reserved]
placement under 353.110. (r) Positions established in support of
(2) Employees excluded. Employees fellowship and similar programs that
who were last employed in Schedule C are filled from limited applicant pools
or under a statutory authority that and operate under specific criteria de-
specified the employee served at the veloped by the employing agency and/
discretion, will, or pleasure of the or a non-Federal organization. These
agency are not eligible for appoint- programs may include: internship or
ment under this authority. fellowship programs that provide de-
(3) Position to which appointed. Em- velopmental or professional experi-
ployees who are entitled to placement ences to individuals who have com-
under 353.110 will be appointed to a pleted their formal education; training
position that OPM determines is equiv- and associateship programs designed to
alent in pay and grade to the one the increase the pool of qualified can-
individual left, unless the individual didates in a particular occupational
elects to be placed in a position of specialty; professional/industry ex-
lower grade or pay. National Guard change programs that provide for a
Technicians whose eligibility is based cross-fertilization between the agency
upon a disability may be appointed at and the private sector to foster mutual
the same grade, or equivalent, as their understanding, an exchange of ideas, or
National Guard Technician position or to bring experienced practitioners to
at any lower grade for which they are the agency; residency programs
available. through which participants gain expe-
(4) Conditions of appointment. (i) Indi- rience in a Federal clinical environ-

viduals whose placement eligibility is ment; and programs that require a pe-
based on an appointment without time riod of Government service in exchange
71
213.3102 5 CFR Ch. I (1116 Edition)
for educational, financial or other as- is likely to succeed in performing the

sistance. Appointments under this au- duties of the position, the agency may
thority may not exceed 4 years. rely upon the applicants employment,
(s) Positions with compensation fixed educational, or other relevant experi-
under 5 U.S.C. 53515356 when filled by ence, including but not limited to serv-
student-employees assigned or at- ice under another type of appointment
tached to Government hospitals, clin- in the competitive or excepted serv-
ics or medical or dental laboratories. ices.
Employment under this authority may (5) Temporary employment options. An
not exceed 4 years. agency may make a temporary ap-
(t) [Reserved] pointment when:
(u) Appointment of persons with intel- (i) The agency determines that it is
lectual disabilities, severe physical disabil- necessary to observe the applicant on
ities, or psychiatric disabilities(1) Pur- the job to determine whether the appli-
pose. An agency may appoint, on a per- cant is able or ready to perform the du-
manent, time-limited, or temporary ties of the position. When an agency
basis, a person with an intellectual dis- uses this option to determine an indi-
ability, a severe physical disability, or viduals job readiness, the hiring agen-
a psychiatric disability according to cy may convert the individual to a per-
the provisions described below. manent appointment in the excepted
(2) Definition. Intellectual disabil- service whenever the agency deter-
ities means only those disabilities mines the individual is able to perform
that would have been encompassed by the duties of the position; or
the term mental retardation in pre- (ii) The work is of a temporary na-
vious iterations of this regulation and ture.
the associated Executive order, Execu- (6) Noncompetitive conversion to the
tive Order 12125, dated March 15, 1979. competitive service. (i) An agency may
(3) Proof of disability. (i) An agency noncompetitively convert to the com-
must require proof of an applicants in- petitive service an employee who has
tellectual disability, severe physical completed 2 years of satisfactory serv-
disability, or psychiatric disability ice under this authority in accordance
prior to making an appointment under with the provisions of Executive Order
this section. 12125, as amended by Executive Order
(ii) An agency may accept, as proof of 13124, and 315.709 of this chapter, ex-
disability, appropriate documentation cept as provided in paragraph (u)(6)(ii)
(e.g., records, statements, or other ap- of this section.
propriate information) issued by a li- (ii) Time spent on a temporary ap-
censed medical professional (e.g., a pointment specified in paragraph
physician or other medical professional (u)(5)(ii) of this section does not count
duly certified by a State, the District towards the 2-year requirement.
of Columbia, or a U.S. territory, to (v)(w) [Reserved]
practice medicine); a licensed voca- (x) Positions for which a local re-
tional rehabilitation specialist (State cruiting shortage exists when filled by
or private); or any Federal agency, inmates of Federal, District of Colum-
State agency, or an agency of the Dis- bia and State (including the Common-
trict of Columbia or a U.S. territory wealth of Puerto Rico, the Virgin Is-
that issues or provides disability bene- lands, Guam, American Samoa, and the
fits. Trust Territory of the Pacific Islands)
(4) Permanent or time-limited employ- penal and correctional institutions
ment options. An agency may make per- under work-release programs author-
manent or time-limited appointments ized by the Prisoner Rehabilitation Act
under this paragraph (u)(4) where an of 1965, the District of Columbia Work
applicant supplies proof of disability as Release Act, or under work-release pro-
described in paragraph (u)(3) of this grams authorized by the States. Initial
section and the agency determines that appointments under the authority may
the individual is likely to succeed in not exceed 1 year. An initial appoint-
the performance of the duties of the po- ment may be extended for one or more
sition for which he or she is applying. periods not to exceed 1 additional year
In determining whether the individual each upon a finding that the inmate is
72
still in a work-release status and that 213.3199 Temporary organizations.

a local recruiting shortage still exists.
Positions on the staffs of temporary or-
No person may serve under this author-
ganizations, as defined in 5 U.S.C.
ity longer than 1-year beyond the date
3161(a). Appointments may not exceed 3
of that persons release from custody.
years, but temporary organizations
(y) [Reserved] may extend the appointments for 2 ad-
(z) Not to exceed 30 positions of as- ditional years if the conditions for ex-
sistants to top-level Federal officials tension are related to the completion
when filled by persons designated by of the study or project.
the President as White House Fellows.
(aa) Scientific and professional re- [68 FR 24605, May 8, 2003]
search associate positions at GS11 and
above when filled on a temporary basis SCHEDULE B
by persons having a doctoral degree in
213.3201 Positions other than those
an appropriate field of study for re- of a confidential or policy-deter-
search activities of mutual interest to mining character for which it is not
appointees and their agencies. Appoint- practicable to hold a competitive
ments are limited to persons referred examination.
by the National Research Council (a) Upon specific authorization by
under its post-doctoral research asso- OPM, agencies may make appoint-
ciate program, may not exceed 2 years, ments under this section to positions
and are subject to satisfactory out- which are not of a confidential or pol-
come of evaluation of the associates icy-determining character, and which
research during the first year. are not in the Senior Executive Serv-
(bb) Positions when filled by aliens in ice, for which it is impracticable to
the absence of qualified citizens. Ap- hold open competition or to apply
pointments under this authority are usual competitive examining proce-
subject to prior approval of the Office dures. Appointments under this au-
except when the authority is specifi- thority are subject to the basic quali-
cally included in a delegated exam- fication standards established by the
ining agreement with the Office. Office of Personnel Management for
(cc)(ee) [Reserved] the occupation and grade level. Posi-
(ff) Not to exceed 24 positions when tions filled under this authority are ex-
filled in accordance with an agreement cepted from the competitive service
between OPM and the Department of and constitute Schedule B. For each
Justice by persons in programs admin- authorization under this section, OPM
istered by the Attorney General of the shall assign a number from 213.3202
United States under Public Law 91452 through 213.3299 to be used by the ap-
and related statutes. A person appointing agency in recording appoint-
pointed under this authority may con- ments made under that authorization.
tinue to be employed under it after he (b) [Reserved]
ceases to be in a qualifying program
only as long as he remains in the same [46 FR 20147, Apr. 3, 1981, as amended at 47
agency without a break in service. FR 57655, Dec. 28, 1982; 53 FR 15353, Apr. 29,
1988]
(gg)(kk) [Reserved]
(ll) Positions as needed of readers for 213.3202 Entire executive civil serv-
blind employees, interpreters for deaf ice.
employees and personal assistants for
handicapped employees, filled on a full (a)(i) [Reserved]
time, part-time, or intermittent basis. (j) Special executive development po-
sitions established in connection with
(5 U.S.C. 3301, 3307, 8337(h); 5 U.S.C. 3301, 3302; Senior Executive Service candidate de-
E.O. 12364, 47 FR 22931) velopment programs which have been
[47 FR 28902, July 2, 1982] approved by OPM. A Federal agency
may make new appointments under
EDITORIAL NOTE: For FEDERAL REGISTER ci-
tations affecting 213.3102, see the List of this authority for any period of em-
CFR Sections Affected, which appears in the ployment not exceeding 3 years for one
Finding Aids section of the printed volume individual.
and at www.fdsys.gov. (k)(l) [Reserved]
73
213.3301 5 CFR Ch. I (1116 Edition)
(m) Positions when filed under any of which are policy-determining or which
the following conditions: involve a close and confidential work-
(1) Appointment at grades GS15 and ing relationship with the head of an
above, or equivalent, in the same or a agency or other key appointed offi-
different agency without a break in cials. Positions filled under this au-
service from a career appointment in thority are excepted from the competi-
the Senior Executive Service (SES) of tive service and constitute Schedule C.
an individual who: Each position will be assigned a num-
(i) Has completed the SES proba- ber from 213.3302 to 213.3999, or other
tionary period; appropriate number, to be used by the
(ii) Has been removed from the SES agency in recording appointments
because of less than fully successful ex- made under that authorization.
ecutive performance, failure to be re- (b) When requesting Schedule C ex-
certified, or a reduction in force; and ception, agencies must submit to OPM
(iii) Is entitled to be placed in an- a statement signed by the agency head
other civil service position under 5 certifying that the position was not
U.S.C. 3594(b). created solely or primarily for the pur-
(2) Appointment in a different agency pose of detailing the incumbent to the
without a break in service of an indi- White House.
vidual originally appointed under para- (c) The exception from the competi-
graph (m)(l). tive service for each position listed in
(3) Reassignment, promotion, or de- Schedule C by OPM is revoked imme-
motion within the same agency of an diately upon the position becoming va-
individual appointed under this author- cant. An agency shall notify OPM
ity. within 3 working days after a Schedule
(n) Positions when filled by pref- C position has been vacated.
erence eligibles or veterans who have [60 FR 35120, July 6, 1995]
been separated from the armed forces
under honorable conditions after 3 213.3302 Temporary transitional
years or more of continuous active Schedule C positions.
military service and who, in accord- (a) An agency may establish tem-
ance with the provisions of Pub.L. 105 porary transitional Schedule C posi-
339, applied for these positions under tions necessary to assist a department
merit promotion procedures when ap- or agency head during the 1-year period
plications were being accepted from in- immediately following a change in
dividuals outside its own workforce. presidential administration, when a
These veterans may be promoted, de- new department or agency head has en-
moted, or reassigned, as appropriate, to tered on duty, or when a new depart-
other positions within the agency but ment or agency is created. These posi-
would remain employed under this ex- tions may be established only to meet
cepted authority as long as there is no legitimate needs of the agency in car-
break in service. No new appointments rying out its mission during the period
may be made under this authority of transition associated with such
after November 30, 1999. changeovers. They must be of a con-
(o) [Reserved] fidential or policy-determining char-
[47 FR 28904, July 2, 1982] acter and are subject to instructions
issued by OPM.
EDITORIAL NOTE: For FEDERAL REGISTER ci- (b) The number of temporary transi-
tations affecting 213.3202, see the List of
tional Schedule C positions established
CFR Sections Affected, which appears in the
Finding Aids section of the printed volume by an agency cannot exceed either 50
and at www.fdsys.gov. percent of the highest number of per-
manent Schedule C positions filled by
SCHEDULE C that agency at any time over the pre-
vious 5 years, or three positions,
213.3301 Positions of a confidential whichever is higher. In the event a new
or policy-determining nature. department or agency is created, the
(a) Upon specific authorization by number of temporary transitional posi-

OPM, agencies may make appoint- tions should reasonable in light of the
ments under this section to positions size and program responsibility of that
74
department or agency. OPM may ap- grams. Appointments under this au-
prove an increase in an agencys quota thority are subject to the basic quali-
to meet a critical need or in unusual fication standards established by the
circumstances. Office of Personnel Management for
(c) Individual appointments under the occupation and grade level unless
this authority may be made for 120 otherwise stated.
days, with one extension of an addi-
tional 120 days. They may be deemed 213.3402 Entire executive civil serv-
provisional appointments for purposes ice; Pathways Programs.
of the regulations set out in parts 351, (a) Internship Program; Positions in the
831, 842, 870, and 890 of this chapter if Internship Program. Agencies may make
they meet the criteria set out in initial appointments of Interns under
316.401 and 316.403 of this chapter. this authority at any grade level, de-
(d) An agency shall notify OPM with- pending on the candidates qualifica-
in 5 working days after a temporary tions. Appointments must be made in
transitional Schedule C position has accordance with the provisions of sub-
been encumbered and within 3 working part B of part 362 of this chapter.
days when it has been vacated. The (b) Recent Graduates Program; Posi-
agency must also submit to OPM a tions in the Recent Graduates Program.
statement signed by the agency head (1) Agencies may make initial appoint-
certifying that the position was not ments of Recent Graduates at any
created solely or primarily for the pur- grade level, not to exceed GS09 (or
pose of detailing the incumbent to the equivalent level under another pay and
White House. classification system, including the
[60 FR 35120, July 6, 1995] Federal Wage System (FWS)), depend-
ing on the candidates qualifications,
SCHEDULE D and the positions requirements except
that:
SOURCE: 77 FR 28213, May 11, 2012, unless (i) Initial appointments to positions
otherwise noted. for science, technology, engineering, or
mathematics (STEM) occupations may
213.3401 Positions other than those be made at the GS11 level, if the can-
of a confidential or policy deter- didate possesses a Ph.D. or equivalent
mining character for which the
competitive service requirements degree directly related to the STEM
make impracticable the adequate position the agency is seeking to fill.
recruitment of sufficient numbers (ii) Initial appointments to scientific
of students attending qualifying and professional research positions at
educational institutions or individ- the GS11 level for which the classi-
uals who have recently completed fication and qualification criteria for
qualifying educational programs. research positions apply, if the can-
As authorized by OPM, agencies may didate possesses a masters degree or
make appointments under this section equivalent graduate degree directly re-
to positions other than those of a con- lated to the position the agency is
fidential or policy-determining char- seeking to fill.
acter for which the competitive service (iii) Initial appointments to sci-
requirements make impracticable the entific and professional research posi-
adequate recruitment and selection of tions at the GS12 level for which the
sufficient numbers of students attend- classification and qualification criteria
ing qualifying educational institutions for research positions apply, if the can-
or individuals who have recently com- didate possesses a Ph.D. or equivalent
pleted qualifying educational pro- degree directly related to the position
grams. These positions, which may be the agency is seeking to fill.
filled in the excepted service to enable (2) Appointments must be made in
more effective recruitment from all accordance with the provisions of sub-
segments of society by using means of part C of part 362 of this chapter.
recruiting and assessing candidates (c) Presidential Management Fellows
that diverge from the rules generally Program. Positions in the Presidential
applicable to the competitive service, Management Fellows Program. Ap-
constitute Schedule D Pathways Pro- pointments under this authority may
75
not exceed 2 years except as provided title 5, United States Code, and in-
in subpart D of part 362 of this chapter. cludes all positions which meet the def-
Agencies may make initial appoint- inition in section 3132(a)(2) of title 5.
ments of Fellows at the GS09, GS11,
or GS12 level (or equivalent under an-
FR 18661, Apr. 23, 1991]
other pay and classification system
such as the FWS), depending on the 214.202 Authority to make deter-
candidates qualifications and the posi- minations.
tions requirements. Appointments
must be made in accordance with the (a) Each agency is responsible for de-
provisions of subpart D of part 362 of termining, in accordance with Office of
this chapter. Personnel Management guidelines,
which of its positions should be in-
cluded in the Senior Executive Service.
PART 214SENIOR EXECUTIVE
(b) Agency determinations may be re-
SERVICE viewed by the Office of Personnel Man-
agement to ensure adherence with law
Subpart A [Reserved]
and regulation.
Subpart BGeneral Provisions
214.203 Reporting requirements.
Sec.
214.201 Definitions. Agencies shall report such informa-
214.202 Authority to make determinations. tion as may be requested by OPM relat-
214.203 Reporting requirements. ing to positions and employees in the
214.204 Interchange agreements. Senior Executive Service.
Subpart CExclusions [60 FR 6385, Feb. 2, 1995]
214.301 Exclusions. 214.204 Interchange agreements.

Subpart DTypes of Positions (a) In accordance with 5 CFR 6.7,
OPM and any agency with an executive
214.401 Types of positions. personnel system essentially equiva-
214.402 Career reserved positions.
lent to the Senior Executive Service
214.403 Change of position type.
(SES) may, pursuant to legislative and
AUTHORITY: 5 U.S.C. 3132. regulatory authorities, enter into an
SOURCE: 45 FR 62414, Sept. 19, 1980, unless agreement providing for the movement
otherwise noted. of persons between the SES and the
other system. The agreement shall de-
Subpart A [Reserved] fine the status and tenure that the per-
sons affected shall acquire upon the
Subpart BGeneral Provisions movement.
(b) Persons eligible for movement
214.201 Definitions. must be serving in permanent, con-
For the purposes of this part: tinuing positions with career or career-
Agency, Senior Executive Service posi- type appointments. They must meet
tion, career appointee, limited term ap- the qualifications requirements of any
pointee, limited emergency appointee, and position to which moved.
noncareer appointee have the meanings (c) An interchange agreement may be
set forth in section 3132(a) of title 5, discontinued by either party under
United States Code. such conditions as provided in the
Equivalent position as used in section agreement.
3132(a)(2) of title 5, United States Code, [60 FR 6385, Feb. 2, 1995]
means a position under any pay system
where the level of the duties and re-
sponsibilities of the position and the Subpart CExclusions
rate of pay are comparable to that of a
position above GS15 or at Executive 214.301 Exclusions.
Level IV or V. If not excluded from the Senior Exec-

Senior Executive Service has the mean- utive Service by section 3132(a) (1) or
ing given that term by section 2101a of (2) of title 5, United States Code, an
76
agency, or unit thereof, may be ex- (iv) Contract administration and pro-
cluded only under the provisions of sec- curement;
tion 3132 (c) through (f) of title 5. (v) Grants administration;
(vi) Investigation and security mat-
Subpart DTypes of Positions ters; and
(vii) Tax liability, including the as-
214.401 Types of positions. sessment or collection of taxes and the
There are two types of positions in preparation or review of interpretative
the Senior Executive Service: opinions.
(a) General positions, which may be (2) Career reserved positions also in-
filled by a career, noncareer, limited clude:
emergency, or limited term appointee. (i) Scientific or other highly tech-
(b) Career reserved positions, which nical or professional positions where
may be filled only by a career ap- the duties and responsibilities of the
pointee. specific position are such that it must
214.402 Career reserved positions. be filled by a career appointee to insure
impartiality, of the Government.
(a) The head of each agency is re- (ii) Other positions requiring impar-
sponsible for designating career re- tiality, or the publics confidence in
served positions in accordance with the impartiality, as determined by an
regulations in this section.
agency in light of its mission.
(b) A position shall be designated as
(d) The Office of Personnel Manage-
a career reserved position if:
ment may review agency designations
(1) The position (except a position in
the Executive Office of the President): of general and career reserved posi-
(i) Was under the Executive Sched- tions. If the Office finds that an agency
ule, or the rate of basic pay was deter- has designated any position as general
mined by reference to the Executive that should be career reserved, it shall
Schedule, on October 12, 1978; direct the agency to make the career
(ii) Was specifically required under reserved designation.
section 2102 of title 5, United States (e) The minimum number of posi-
Code, or otherwise required by law to tions in the Senior Executive Service
be in the competitive service; and Governmentwide that must be career
(iii) Entailed direct responsibility to reserved is 3,571 as determined by the
the public for the management or oper- Director of the Office of Personnel
ation of particular government pro- Management under section 3133(e) of 5
grams or functions; or U.S.C. To assure that this figure is
(2) The position must be filled by a met, the Office may establish a min-
career appointee to ensure impar- imum number of career reserved posi-
tiality, or the publics confidence in tions for individual agencies. An agen-
the impartiality, of the Government. cy must maintain or exceed this num-
(c) The head of an agency shall use ber unless it is adjusted by the Office.
the following criteria in determining
whether paragraph (b)(2) of this section [45 FR 62414, Sept. 19, 1980; 45 FR 83471, Dec.
is applicable to an individual position: 19, 1980]
(1) Career reserved positions include
214.403 Change of position type.
positions the principal duties of which
involve day-to-day operations, without An agency may not change the des-
responsibility for or substantial in- ignation of an established position
volvement in the determination or pub- from career reserved to general, or
lic advocacy of the major controversial from general to career reserved, with-
policies of the Administration or agen- out the prior approval of the Office of
cy, in the following occupational dis- Personnel Management.
ciplines:
(i) Adjudication and appeals;
(ii) Audit and inspection;

(iii) Civil or criminal law enforce-
ment and compliance;
77
PART 230ORGANIZATION OF THE 230.402 Agency authority to make

GOVERNMENT FOR PERSONNEL emergency-indefinite appointments
in a national emergency.
MANAGEMENT
(a) When a national emergency exists
Subparts AC [Reserved] (1) Definition. A national emergency
must meet all of the following condi-
Subpart DAgency Authority To Take Per- tions:
sonnel Actions in a National Emer- (i) It was declared by the President
gency or Congress.
(ii) It involves a danger to the United
Sec. States safety, security, or stability
230.401 Agency authority to take personnel that results from specified cir-
actions in a national emergency disaster. cumstances or conditions and that is
230.402 Agency authority to make emer-
national in scope.
gency-indefinite appointments in a na-
tional emergency. (iii) It requires a national program
specifically intended to combat the
AUTHORITY: 5 U.S.C. 1302, 3301, 3302; E.O. threat to national safety, security, or
10577; 3 CFR 19541958 Comp., p. 218; sec. stability.
230.402 also issued under 5 U.S.C. 1104.
(2) Termination of a national emer-
gency. A national emergency no longer
Subparts AC [Reserved] exists if it is officially terminated by
the President or Congress, or if the spe-
Subpart DAgency Authority To cific circumstances, conditions, or pro-
Take Personnel Actions in a gram cited in the original declaration
National Emergency are terminated or corrected.
(b) Basic authority. Agencies may
230.401 Agency authority to take per- make emergency-indefinite appoint-
sonnel actions in a national emer- ments without OPM approval during
gency disaster. any national emergency as defined in
(a) Upon an attack on the United paragraph (a) of this section. The head
States, agencies are authorized to of an agency with a defense-related
carry out whatever personnel activities mission may request OPMs approval
may be necessary to the effective func- to make emergency-indefinite appoint-
tioning of their organizations during a ments without a declared national
period of disaster without regard to emergency when the President has au-
any regulation or instruction of OPM, thorized the call-up of some portion of
except those which become effective the military reserves for some military
upon or following an attack on the purpose. The request must demonstrate
United States. This authority applies that normal hiring procedures cannot
only to actions under OPM jurisdic- meet surge employment requirements
tion. and that use of emergency-indefinite
(b) Actions taken under this section appointments is necessary for economy
shall be consistent with affected regu- and efficiency. Except as provided by
lations and instructions as far as pos- paragraphs (c) and (d) of this section,
sible under the circumstances and shall agencies must make emergency-indefi-
be discontinued as soon as conditions nite appointments from appropriate
permit the reapplication of the affected registers of eligibles as long as there
regulations and instructions. are available eligibles.
(c) An employee may not acquire a (c) Appointment under direct-hire au-
competitive civil service status by vir- thority. An agency may make emer-
tue of any action taken under this sec- gency-indefinite appointments under
tion. this section using the direct-hire proce-
(d) Actions taken, and authority to dures in part 337 of this chapter.
(d) Appointment noncompetitively. An
take actions, under this section may be
agency may give emergency-indefinite
adjusted or terminated in whole or in
appointments under this section to the
part by OPM.
following classes of persons without re-

(e) Agencies shall maintain records
gard to registers of eligibles and the
of the actions taken under this section.
provisions in 332.102 of this chapter:
[35 FR 5173, Mar. 27, 1970]
78
(1) Persons who were recruited on a (i) Promotion, demotion, or reassign-

standby basis prior to the national ment. An agency may promote, demote,
emergency; or reassign an emergency-indefinite
(2) Members of the National Defense employee to any position for which it
Executive Reserve, designated in ac- is making emergency-indefinite ap-
cordance with section 710(e) of the De- pointments.
fense Production Act of 1950, Executive
(5 U.S.C. 1104; Pub. L. 95454, sec. 3(5))
Order 11179 of September 22, 1964, and
applications issued by the agency au- [44 FR 54691, Sept. 21, 1979, as amended at 60
thorized to implement the law and Ex- FR 3057, Jan. 13, 1995; 68 FR 35268, June 13,
ecutive Order; and 2003; 69 FR 33275, June 15, 2004]
(3) Former Federal employees eligi-
ble for reinstatement. PART 250PERSONNEL
(e) Tenure of emergency-indefinite em- MANAGEMENT IN AGENCIES
ployees. (1) Emergency-indefinite em-
ployees do not acquire a competitive Subpart AAuthority for Personnel Actions
status on the basis of their emergency- in Agencies
indefinite appointments.
Sec.
(2) An emergency-indefinite appoint-
250.101 Standards and requirements for
ment may be continued for the dura- agency personnel actions.
tion of the emergency for which it is 250.102 Delegated authorities.
made. 250.103 Consequences of improper agency ac-
(f) Trial period. (1) The first year of tions.
service of an emergency-indefinite em-
ployee is a trial period. Subpart BStrategic Human Capital
(2) The agency may terminate the ap- Management
pointment of an emergency-indefinite
250.201 Coverage and purpose.
employee at any time during the trial 250.202 Office of Personnel Management re-
period. The employee is entitled to the sponsibilities.
procedures set forth in 315.804 or 250.203 Agency responsibilities.
315.805 of this chapter as appropriate.
(g) Eligibility for within-grade in- Subpart CEmployee Surveys
creases. An emergency-indefinite em-
ployee serving in a position subject to
250.302 Survey requirements.
the General Schedule is eligible for 250.303 Availability of results.
within-grade increases in accordance
with subpart D of part 531 of this chap- AUTHORITY: 5 U.S.C. 1101 note, 1103(a)(5),
ter. 1103(c), 1104, 1302, 3301, 3302; E.O. 10577, 12 FR
1259, 3 CFR, 19541958 Comp., p. 218; E.O.
(h) Applications of other regulations. (1) 13197, 66 FR 7853, 3 CFR 748 (2002).
The term indefinite employee includes Subpart B also issued under 5 U.S.C. 1401,
an emergency-indefinite employee or 1401 note, 1402.
an employee under an emergency ap-
pointment as used in the following:
otherwise noted.
parts 351, 353 of this chapter, subpart G
of part 550 of this chapter, and part 752
of this chapter. Subpart AAuthority for Personnel
(2) The selection procedures of part Actions in Agencies
337 of this chapter apply to emergency-
indefinite appointments that use the SOURCE: 73 FR 23013, Apr. 28, 2008, unless
direct-hire authority under paragraph otherwise noted.
(c) of this section.
(3) Despite the provisions in 250.101 Standards and requirements
831.201(a)(11) of this chapter, an em- for agency personnel actions.
ployee serving under an emergency-in- When taking a personnel action au-
definite appointment under authority thorized by this chapter, an agency
of this section is excluded from retire- must comply with qualification stand-
ment coverage, except as provided in ards and regulations issued by the Of-
paragraph (b) of 831.201 of this chap- fice of Personnel Management (OPM),
ter. the instructions OPM has published in
79
250.102 5 CFR Ch. I (1116 Edition)
the Guide to Processing Personnel Ac- draw these authorities when it deter-
tions, and the provisions of any delega- mines that doing so is in the interest of
tion agreement OPM has made with the civil service for any other reason.
the agency. When taking a personnel
action that results from a decision or Subpart BStrategic Human
order of OPM, the Merit Systems Pro- Capital Management
tection Board, Equal Employment Op-
portunity Commission, or Federal
SOURCE: 73 FR 23013, Apr. 28, 2008, unless
Labor Relations Authority, as author- otherwise noted.
ized by the rules and regulations of
those agencies, or as the result of a 250.201 Coverage and purpose.
court order, a judicial or administra- The Chief Human Capital Officers
tive settlement agreement, or an arbi- (CHCO) Act of 2002 acknowledges the
tral award under a negotiated agree- critical importance of Federal employ-
ment, the agency must follow the in- ees to the effective and efficient oper-
structions in the Guide to Processing ation of Government. As a part of
Personnel Actions and comply with all OPMs overall leadership responsibil-
other relevant substantive and docu- ities in the strategic management of
mentary requirements, including those the Federal civil service, and pursuant
applicable to retirement, life insur- to 5 U.S.C. 1103, OPM is responsible for
ance, health benefits, and other bene- designing a set of systems, including
fits provided under this chapter. standards and metrics, for assessing
250.102 Delegated authorities. the management of human capital by
Federal agencies. In this subpart, OPM
OPM may delegate its authority, in- establishes a framework of those sys-
cluding authority for competitive ex- tems, including system components,
aminations, to agencies, under 5 U.S.C. OPMs role, and agency responsibil-
1104(a)(2), through a delegation agree- ities.
ment. The delegation agreement devel-
oped with the agency must specify the 250.202 Office of Personnel Manage-
conditions for applying the delegated ment responsibilities.
authorities. The agreement must also (a) As the Presidents chief human
set minimum standards of performance capital officer, the Director of OPM
and describe the system of oversight by provides Governmentwide leadership
which the agency and OPM will mon- and direction in the strategic manage-
itor the use of each delegated author- ment of the Federal workforce.
ity. (b) To execute this critical leadership
responsibility, OPM adopts the Human
250.103 Consequences of improper Capital Assessment and Accountability
agency actions. Framework (HCAAF) to describe the
If OPM finds that an agency has concepts and systems for planning, im-
taken an action contrary to a law, plementing, and evaluating the results
rule, regulation, or standard that OPM of human capital management policies
administers, OPM may require the and practices. See Appendix. In addi-
agency to take corrective action. OPM tion, OPM adopts the related set of as-
may suspend or revoke a delegation sessment systems required by the
agreement established under 250.102 at CHCO Act as the HCAAF Systems,
any time if it determines that the Standards, and Metrics (HCAAFSSM),
agency is not adhering to the provi- also included in the Appendix. Each
sions of the agreement. OPM may sus- such assessment system associated
pend or withdraw any authority grant- with the HCAAF consists of:
ed under this chapter to an agency, in- (1) A standard against which agencies
cluding any authority granted by dele- can assess the results of their manage-
gation agreement, when OPM finds ment of human capital; and
that the agency has not complied with (2) Prescribed metrics, as appro-
qualification standards OPM has priate, for organizational outcomes,
issued, instructions OPM has pub- employee perspective, and compliance

lished, or the regulations in this chap- measures with respect to relevant laws,
ter. OPM also may suspend or with- rules and regulations.
80
(c) Together, the HCAAF and the set of human capital goals and objec-
HCAAFSSM guide agencies in plan- tives, with detailed policy and program
ning, evaluating and improving the ef- priorities and initiatives as appro-
ficiency and effectiveness of agency priate, consistent with agency stra-
human capital management with re- tegic plans and annual performance
spect to: goals. These human capital goals and
(1) Alignment with executive branch objectives must address each of the
policies and priorities, as well as with human capital management systems
individual agency missions, goals, and included in the HCAAF.
program objectives, including the ex- (ii) Workforce analysis. This analysis
tent to which human capital manage- of the agencys workforce describes its
ment strategies are integrated into current state, projects the human re-
agency strategic plans and perform- sources needed to achieve the agencys
ance budgets prepared under OMB Cir- program performance goals and objec-
cular A11; tives during the term of the agencys
(2) Identifying and closing com- strategic plan, and identifies potential
petency/skill gaps in the agencys mis- shortfalls or gaps. An ongoing analysis
sion-critical occupations; ensuring must, for relevant agency mission re-
leadership continuity through the im- quirements, describe the occupation(s)
plementation of recruiting, develop- most critical to agency performance
ment, and succession plans; sustaining (including associated managerial and
an agency culture that values, elicits, executive positions) and describe mis-
identifies, and rewards high perform- sion-critical competencies and key de-
ance; and developing and implementing mographics (e.g., talent analyses, turn-
a knowledge management strategy, over, and retirement eligibility); and
supported by appropriate investment in for each such occupation, describe its
training and technology; and current and projected staffing levels,
(3) Holding the agency head, execu- attrition and hiring estimates, and pro-
tives, managers and human resources posed training and development invest-
officers accountable for efficient and ments.
effective human capital management, (iii) Performance measures and mile-
in accordance with merit system prin- stones. One or more human capital
ciples. metrics, as well as appropriate pro-
gram milestones, for each human cap-
250.203 Agency responsibilities. ital goal or objective, provide a basis
(a) To assist in the assessment of the for assessing progress and results, in-
management of human capital in the cluding compliance measures with re-
Federal Government, and to help meet spect to relevant laws, rules and regu-
the statutory requirements to prepare lations. These metrics must include,
that portion of the performance budget but are not limited to, those described
for which agency Chief Human Capital in the HCAAFSSM issued under
Officers are accountable as well as rel- 250.202(b). These metrics and mile-
evant portions of performance and ac- stones must be specifically linked to
countability reports, heads of agencies broader agency program performance
or their designees must maintain a cur- goals, to evaluate the impact of the
rent human capital plan and provide agencys human capital management
OPM an annual Human Capital Man- on its overall mission performance.
agement Report, as outlined below, (2) Human capital accountability sys-
based on an approved human capital tem. This system provides for an annual
accountability system. The HCAAF assessment of agency human capital
and the HCAAFSSM provide more spe- management progress and results in-
cific information on coverage and con- cluding compliance with relevant laws,
tent for the plan and report. rules, and regulations. That assess-
(1) Human capital plan. Using a for- ment is conveyed in an annual Human
mat established by agreement between Capital Management Report to OPM.
the agency and OPM, at a minimum The human capital accountability sys-
the plan must include: tem must:

(i) Human capital goals and objectives. (i) Be formal and documented;
These are a comprehensive, integrated (ii) Be approved by OPM;
81
250.301 5 CFR Ch. I (1116 Edition)
(iii) Be supported and resourced by Subpart CEmployee Surveys

agency leadership;
(iv) Measure and assess human cap- SOURCE: 71 FR 49981, Aug. 24, 2006, unless
ital management systems for mission otherwise noted.
alignment, effectiveness, efficiency,
and compliance with merit system 250.301 Definitions.
principles, laws, and regulations; In this part
(v) Provide for an independent audit Agency means an executive agency as
process, with OPM participation, for defined in 5 U.S.C. 105.
periodic review of human resources Executives are members of the Senior
transactions to insure legal and regu- Executive Service or equivalent.
latory compliance; Leaders are an agencys management
(vi) Ensure that action is taken to team. This includes anyone with super-
improve human capital management visory or managerial duties.
programs and processes and to correct Managers are those individuals in
deficiencies; and management positions who typically
(vii) Ensure results are analyzed and supervise one or more supervisors.
reported to agency management and Organization means an agency, office,
OPM. or division.
(3) Human Capital Management Report. Supervisors are first-line supervisors
At a minimum, the agencys annual who do not supervise other supervisors;
Human Capital Management Report typically those who are responsible for
must: employees performance appraisals and
approval of their leave.
(i) Provide an evaluation of and re-
Team leaders are those who provide
port on the agencys existing human
employees with day-to-day guidance in
capital management policies, pro-
work projects, but do not have super-
grams, and operations, as they relate
visory responsibilities or conduct per-
to the agencys overall mission/pro- formance appraisals.
gram performance. The report must ad- Work unit means an immediate work
dress the performance measures and unit headed by an immediate super-
milestones contained in the agency visor.
human capital plan including compli-
ance measures with respect to relevant 250.302 Survey requirements.
laws, rules and regulations. The report (a) Each executive agency must con-
must also document actions taken to duct an annual survey of its employees
correct any violations or deficiencies containing the definitions and each
that are identified. question in this subpart.
(ii) Inform the development of human (b) Each executive agency may in-
capital goals and objectives during the clude survey questions unique to the
agencys strategic planning and annual agency in addition to the prescribed
performance budget formulation proc- employee survey questions under para-
ess, as well as the treatment of human graph (c) of this section.
capital results during the annual per- (c) The definitions and 45 prescribed
formance and accountability reporting employee survey questions and re-
process. sponse choices are listed in the fol-
(b) [Reserved] lowing tables:
Key terms Definitions
Agency ............................................... An executive agency as defined in 5 U.S.C. 105.

Executives ......................................... Members of the Senior Executive Service or equivalent.
Leaders .............................................. An agencys management team. This includes anyone with supervisory or managerial
duties.
Managers ........................................... Those individuals in management positions who typically supervise one or more super-
visors.
Organization ...................................... An agency, office, or division.
Supervisors ........................................ First-line supervisors who do not supervise other supervisors; typically those who are re-
sponsible for employees performance appraisals and approval of their leave.

Team leaders ..................................... Those who provide employees with day-to-day guidance in work projects, but do not
have supervisory responsibilities or conduct performance appraisals.
82
Key terms Definitions
Work unit ........................................... An immediate work unit headed by an immediate supervisor.
Employee survey questions Employee response choices
Personal Work Experiences
(1) The people I work with cooperate to get the job done ......... Strongly Agree, Agree, Neither Agree Nor Disagree, Disagree,
or Strongly Disagree.
(2) I am given a real opportunity to improve my skills in my or- Strongly Agree, Agree, Neither Agree Nor Disagree, Disagree,
ganization. or Strongly Disagree.
(3) My work gives me a feeling of personal accomplishment .... Strongly Agree, Agree, Neither Agree Nor Disagree, Disagree,
(4) I like the kind of work I do ..................................................... Strongly Agree, Agree, Neither Agree Nor Disagree, Disagree,
(5) I have trust and confidence in my supervisor ....................... Strongly Agree, Agree, Neither Agree Nor Disagree, Disagree,
(6) Overall, how good a job do you feel is being done by your Very Good, Good, Fair, Poor, or Very Poor.
immediate supervisor/team leader?
Recruitment, Development & Retention
(7) The workforce has the job-relevant knowledge and skills Strongly Agree, Agree, Neither Agree Nor Disagree, Disagree,
necessary to accomplish organizational goals. Strongly Disagree, or Do Not Know.
(8) My work unit is able to recruit people with the right skills .... Strongly Agree, Agree, Neither Agree Nor Disagree, Disagree,
Strongly Disagree, or Do Not Know.
(9) I know how my work relates to the agencys goals and pri- Strongly Agree, Agree, Neither Agree Nor Disagree, Disagree,
orities. Strongly Disagree, or Do Not Know.
(10) The work I do is important ................................................... Strongly Agree, Agree, Neither Agree Nor Disagree, Disagree,
(11) Physical conditions (for example, noise level, temperature, Strongly Agree, Agree, Neither Agree Nor Disagree, Disagree,
lighting, cleanliness in the workplace) allow employees to Strongly Disagree, or Do Not Know.
perform their jobs well.
(12) Supervisors/team leaders in my work unit support em- Strongly Agree, Agree, Neither Agree Nor Disagree, Disagree,
ployee development. Strongly Disagree, or Do Not Know.
(13) My talents are used well in the workplace .......................... Strongly Agree, Agree, Neither Agree Nor Disagree, Disagree,
(14) My training needs are assessed .......................................... Strongly Agree, Agree, Neither Agree Nor Disagree, Disagree,
Performance Culture
(15) Promotions in my work unit are based on merit ................. Strongly Agree, Agree, Neither Agree Nor Disagree, Disagree,
(16) In my work unit, steps are taken to deal with a poor per- Strongly Agree, Agree, Neither Agree Nor Disagree, Disagree,
former who cannot or will not improve. Strongly Disagree, or Do Not Know.
(17) Creativity and innovation are rewarded ............................... Strongly Agree, Agree, Neither Agree Nor Disagree, Disagree,
(18) In my most recent performance appraisal, I understood Strongly Agree, Agree, Neither Agree Nor Disagree, Disagree,
what I had to do to be rated at different performance levels Strongly Disagree, or No Basis to Judge.
(e.g., Fully Successful, Outstanding).
(19) In my work unit, differences in performance are recog- Strongly Agree, Agree, Neither Agree Nor Disagree, Disagree,
nized in a meaningful way. Strongly Disagree, or Do Not Know.
(20) Pay raises depend on how well employees perform their Strongly Agree, Agree, Neither Agree Nor Disagree, Disagree,
jobs. Strongly Disagree or Do Not Know.
(21) My performance appraisal is a fair reflection of my per- Strongly Agree, Agree, Neither Agree Nor Disagree, Disagree,
formance. Strongly Disagree, or Do Not Know.
(22) Discussions with my supervisor/team leader about my per- Strongly Agree, Agree, Neither Agree Nor Disagree, Disagree,
formance are worthwhile. Strongly Disagree, or Do Not Know.
(23) Managers/supervisors/team leaders work well with em- Strongly Agree, Agree, Neither Agree Nor Disagree, Disagree,
ployees of different backgrounds. Strongly Disagree, or Do Not Know.
(24) My supervisor supports my need to balance work and Strongly Agree, Agree, Neither Agree Nor Disagree, Disagree,
family issues. Strongly Disagree, or Do Not Know.
Leadership
(25) I have a high level of respect for my organizations senior Strongly Agree, Agree, Neither Agree Nor Disagree, Disagree,
leaders. Strongly Disagree, or Do Not Know.
(26) In my organization, leaders generate high levels of motiva- Strongly Agree, Agree, Neither Agree Nor Disagree, Disagree,
tion and commitment in the workforce. Strongly Disagree, or Do Not Know.
(27) Managers review and evaluate the organizations progress Strongly Agree, Agree, Neither Agree Nor Disagree, Disagree,
toward meeting its goals and objectives. Strongly Disagree, or Do Not Know.
(28) Employees are protected from health and safety hazards Strongly Agree, Agree, Neither Agree Nor Disagree, Disagree,
on the job. Strongly Disagree, or Do Not Know.
83
250.303 5 CFR Ch. I (1116 Edition)
Employee survey questions Employee response choices
(29) Employees have a feeling of personal empowerment with Strongly Agree, Agree, Neither Agree Nor Disagree, Disagree,
respect to work processes. Strongly Disagree, or Do Not Know.
(30) My workload is reasonable .................................................. Strongly Agree, Agree, Neither Agree Nor Disagree, Disagree,
(31) Managers communicate the goals and priorities of the or- Strongly Agree, Agree, Neither Agree Nor Disagree, Disagree,
ganization. Strongly Disagree, or Do Not Know.
(32) My organization has prepared employees for potential se- Strongly Agree, Agree, Neither Agree Nor Disagree, Disagree,
curity threats. Strongly Disagree, or Do Not Know.
Job Satisfaction
(33) How satisfied are you with the information you receive Very Satisfied, Satisfied, Neither Satisfied Nor Dissatisfied,
from management on whats going on in your organization? Dissatisfied, or Very Dissatisfied.
(34) How satisfied are you with your involvement in decisions Very Satisfied, Satisfied, Neither Satisfied Nor Dissatisfied,
that affect your work? Dissatisfied, or Very Dissatisfied.
(35) How satisfied are you with your opportunity to get a better Very Satisfied, Satisfied, Neither Satisfied Nor Dissatisfied,
job in your organization? Dissatisfied, or Very Dissatisfied.
(36) How satisfied are you with the recognition you receive for Very Satisfied, Satisfied, Neither Satisfied Nor Dissatisfied,
doing a good job? Dissatisfied, or Very Dissatisfied.
(37) How satisfied are you with the policies and practices of Very Satisfied, Satisfied, Neither Satisfied Nor Dissatisfied,
your senior leaders? Dissatisfied, or Very Dissatisfied.
(38) How satisfied are you with the training you receive for Very Satisfied, Satisfied, Neither Satisfied Nor Dissatisfied,
your present job? Dissatisfied, or Very Dissatisfied.
(39) Considering everything, how satisfied are you with your Very Satisfied, Satisfied, Neither Satisfied Nor Dissatisfied,
job? Dissatisfied, or Very Dissatisfied.
(40) Considering everything, how satisfied are you with your Very Satisfied, Satisfied, Neither Satisfied Nor Dissatisfied,
pay? Dissatisfied, or Very Dissatisfied.
Demographics (for agencies with 800 or more employees)
(41) What is your supervisory status? ........................................ a. Non-Supervisor: You do not supervise other employees.
b. Team Leader: You are not an official supervisor; you pro-
vide employees with day-to-day guidance in work projects,
but do not have supervisory responsibilities or conduct per-
formance appraisals.
c. Supervisor: You are responsible for employees performance
appraisals and approval of their leave, but you do not super-
vise other supervisors.
d. Manager: You are in a management position and supervise
one or more supervisors.
e. Executive: Member of the Senior Executive Service or
equivalent.
(42) Are you ................................................................................. a. Male.
b. Female.
(43) Are you Hispanic or Latino? ................................................ a. Yes.
b. No.
(44) Please select the racial category or categories with which a. White.
you most closely identify (Please select one or more). b. Black or African American.
c. Native Hawaiian or other Pacific Islander.
d. Asian.
e. American Indian or Alaska Native.
(45) What is your agency subcomponent? (If Applicable) .......... An agency provided list of major divisions, bureaus, or other
components one level below the agency/department.
250.303 Availability of results. (3) Description of the employee sam-

ple, unless all employees are surveyed;
(a) Each agency will make the results (4) The survey questions and response
of its annual survey available to the choices with the prescribed questions
public and post the results on its Web identified;
site, unless the agency head determines (5) The number of employees sur-
that doing so would jeopardize or nega- veyed and number of survey respond-
tively impact national security. The ents; and
posted survey results will include the (6) The number of respondents for
following: each survey question and each response
(1) The agencys evaluation of its sur- choice.
vey results; (b) Data must be collected by Decem-

(2) How the survey was conducted; ber 31 of each calendar year. Each
agency must post the beginning and
84
ending dates of its employee survey (c) The purposes of consultation and
and either the survey results described communication are: the improvement
in paragraph (a) of this section or a of agency operations, personnel man-
statement noting the decision not to agement, and employee effectiveness;
post no later than 120 days after the the exchange of information (e.g.,
agency completes survey administra- ideas, opinions, and proposals); and the
tion. OPM may extend this date under establishment of policies that best
unusual circumstances. serve the public interest in accom-
(c) Each agency must submit its sur- plishing the mission of the agency.
vey results to OPM no later than 120 (d) An agencys consultation and
days after the agency completes survey communication with organizations rep-
administration. resenting Federal employees and with
other organizations under this part
PART 251AGENCY RELATION- may not take on the character of nego-
SHIPS WITH ORGANIZATIONS tiations or consultations regarding
conditions of employment of bar-
REPRESENTING FEDERAL EMPLOY- gaining unit employees, which is re-
EES AND OTHER ORGANIZA- served exclusively to labor organiza-
TIONS tions as provided for in Chapter 71 of
title 5 of the U.S. Code or comparable
Subpart AGeneral Provisions provisions of other laws. The regula-
Sec. tions in this part do not authorize any
251.101 Introduction. actions inconsistent with Chapter 71 of
251.102 Coverage. the U.S. Code or comparable provisions
251.103 Definitions. of other laws.
(e) The head of a Federal agency may
Subpart BRelationships With Organiza- determine that it is in the interest of
tions Representing Federal Employees the agency to consult, from time to
and Other Organizations time, with organizations other than
251.201 Associations of management offi-
labor organizations and associations of
cials and/or supervisors. management officials and/or super-
251.202 Agency support to organizations rep- visors to the extent permitted by law.
resenting Federal employees and other Under section 7(d)(2) and (3) of Execu-
organizations. tive Order 11491, as amended, recogni-
tion of a labor organization does not
Subpart CDues Withholding preclude an agency from consulting or
251.301 Associations of management offi- dealing with a veterans organization,
cials and/or supervisors. or with a religious, social, fraternal,
251.302 All other organizations. professional, or other lawful associa-
tion, not qualified as a labor organiza-
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.
tion, with respect to matters or poli-
cies which involve individual members
SOURCE: 61 FR 32915, June 26, 1996, unless of the organization or association or
otherwise noted. are of particular applicability to it or
its members.
Subpart AGeneral Provisions (f) Federal employees, including
management officials and supervisors,
251.101 Introduction. may communicate with any Federal
(a) The regulations in this part apply agency, officer, or other Federal entity
to all Federal executive branch depart- on the employees own behalf. How-
ments and agencies and their officers ever, Federal employees should be
and employees. aware that 18 U.S.C. 205, in pertinent
(b) This part provides a framework part, restricts Federal employees from
for consulting and communicating with acting, other than in the proper dis-
non-labor organizations representing charge of their official duties, as
Federal employees and with other or- agents or attorneys for any person or
ganizations on matters related to agen- organization other than a labor organi-

cy operations and personnel manage- zation, before any Federal agency or
ment. other Federal entity in connection
85
251.102 5 CFR Ch. I (1116 Edition)
with any matter in which the United (b) Association of management officials
States is a party or has a direct and and/or supervisors means an association
substantial interest. An exception to comprised primarily of Federal man-
the prohibition found in 18 U.S.C. 205 agement officials and/or supervisors,
permits Federal employees to rep- which is not eligible for recognition
resent certain nonprofit organizations under Chapter 71 of title 5 of the U.S.
before the Government except in con- Code or comparable provisions of other
nection with specified matters. Agency laws, and which is not affiliated with a
officials and employees are therefore labor organization or federation of
advised to consult with their des- labor organizations.
ignated agency ethics officials for guid- (c) Labor organization means an orga-
ance regarding any conflicts of interest nization as defined in 5 U.S.C.
that may arise. 7103(a)(4), which is in compliance with 5
[61 FR 32915, June 26, 1996, as amended at 63
U.S.C. 7120, or as defined in comparable
FR 2306, Jan. 15, 1998] provisions of other laws.
251.102 Coverage. Subpart BRelationships With Or-

To be covered by this part, an asso- ganizations Representing Fed-
ciation or organization: eral Employees and Other Or-
(a) Must be a lawful, nonprofit orga- ganizations
nization whose constitution and bylaws
indicate that it subscribes to minimum 251.201 Associations of management
standards of fiscal responsibility and officials and/or supervisors.
employs democratic principles in the (a) As part of agency management,
nomination and election of officers; supervisors and managers should be in-
(b) Must not discriminate in terms of cluded in the decision-making process
membership or treatment because of and notified of executive-level deci-
race, color, religion, sex, national ori- sions on a timely basis. Each agency
gin, age, or handicapping condition; must establish and maintain a system
(c) Must not assist or participate in a for intra-management communication
strike, work stoppage, or slowdown and consultation with its supervisors
against the Government of the United and managers. Agencies must also es-
States or any agency thereof or impose tablish consultative relationships with
a duty or obligation to conduct, assist, associations whose membership is pri-
or participate in such strike, work marily composed of Federal super-
stoppage, or slowdown; and visory and/or managerial personnel,
(d) Must not advocate the overthrow provided that such associations are not
of the constitutional form of Govern- affiliated with any labor organization
ment of the United States. and that they have sufficient agency
membership to assure a worthwhile
251.103 Definitions. dialogue with executive management.
(a) Organization representing Federal Consultative relationships with other
employees and other organizations means non-labor organizations representing
an organization other than a labor or- Federal employees are discretionary.
ganization that can provide informa- (b) Consultations should have as
tion, views, and services which will their objectives the improvement of
contribute to improved agency oper- managerial effectiveness and the work-
ations, personnel management, and ing conditions of supervisors and man-
employee effectiveness. Such an orga- agers, as well as the identification and
nization may be an association of Fed- resolution of problems affecting agency
eral management officials and/or su- operations and employees, including
pervisors, a group representing minori- supervisors and managers.
ties, women or persons with disabilities (c) The system of communication and
in connection with the agencies EEO consultation should be designed so that
programs and action plans, a profes- individual supervisors and managers
sional association, a civic or consumer are able to participate if they are not
group, and organization concerned with affiliated with an association of man-
special social interests, and the like. agement officials and/or supervisors.
86
At the same time, the voluntary join- Subpart CDues Withholding

ing together of supervisory and man-
agement personnel in groups of asso- 251.301 Associations of management
ciations shall not be precluded or dis- officials and/or supervisors.
couraged. Dues withholding for associations of
management officials and/or super-
251.202 Agency support to organiza- visors is covered in 5 CFR 550.331.
tions representing Federal employ-
ees and other organizations. 251.302 All other organizations.
(a) An agency may provide support Under 5 CFR 550.311(b), an agency
services to an organization when the may permit an employee to make an
agency determines that such action allotment for any legal purpose deemed
would benefit the agencys programs or appropriate by the head of the agency.
would be warranted as a service to em- Agencies may provide for the allot-
ployees who are members of the organi- ment of dues for organizations rep-
zation and complies with applicable resenting Federal employees under
statutes and regulations. Examples of that section.
such support services are as follows:
(1) Permitting employees, in appro- PART 293PERSONNEL RECORDS
priate cases, to use agency equipment
or administrative support services for Subpart ABasic Policies on Maintenance
preparing papers to be presented at of Personnel Records
conferences or symposia or published
in journals; Sec.
(2) Using the authority under 5 U.S.C. 293.101 Purpose and scope.
4109 and 4110, as implemented by 5 CFR
293.103 Recordkeeping standards.
part 410, to pay expenses of employees 293.104 Collection of information.
to attend professional organization 293.105 Restrictions on collection and use of
meetings when such attendance is for information.
the purpose of employee development 293.106 Safeguarding information about in-
or directly concerned with agency dividuals.
functions or activities and the agency 293.107 Special safeguards for automated
can derive benefits from employee at- records.
tendance at such meetings; and 293.108 Rules of conduct.
(3) Following a liberal policy in au- Subpart BPersonnel Records Subject to
thorizing excused absence for other em- the Privacy Act
ployees who are willing to pay their
own expenses to attend a meeting of a 293.201 Purpose.
professional association or other orga- 293.202 Records subject to Office or agency
nization from which an agency could Privacy Act regulations.
293.203 Review of Office or agency practices.
derive some benefits.
(b) Agencies may provide Govern- Subpart COfficial Personnel Folder
ment resources support to organiza-
tions (such as space in Government fa- 293.301 Applicability of regulations.
cilities for meeting purposes and the 293.302 Establishment of Official Personnel
Folder.
use of agency bulletin boards, internal
293.303 The roles and responsibilities of the
agency mail distribution systems, elec- Office, agencies, and custodians.
tronic bulletin boards and other means 293.304 Maintenance and content of folder.
of informing agency employees about 293.305 Type of folder to be used.
meetings and activities) in accordance 293.306 Use of existing folders upon transfer
with appropriate General Services Ad- or reemployment.
ministration regulations contained in 293.307 Disposition of folders of former Fed-
title 41 of the Code of Federal Regula- eral employees.
293.308 Removal of temporary records from
tions. The mere provision of such sup-
OPFs.
port to any organization is not to be 293.309 Reconstruction of lost OPFs.
construed as Federal sponsorship, sanc- 293.310 Response to requests for informa-

tion, or endorsement of the organization.
tion or its activities. 293.311 Availability of information.
87
293.101 5 CFR Ch. I (1116 Edition)
Subpart DEmployee Performance File or independent establishment in the

System Records Executive Branch of the Federal Gov-
ernment, including a government cor-
293.401 Applicability of regulations.
poration or Government controlled cor-
293.402 Establishment of separate employee
performance record system. poration, except those specifically ex-
293.403 Contents of employee performance cluded from Office recordkeeping re-
files. quirements by statute, Office regula-
293.404 Retention schedule. tion, or formal agreement between the
293.405 Disposition of records. Office and that agency.
293.406 Disclosure of records.
Subpart EEmployee Medical File System
Records In this part:
Agency means any executive depart-
293.501 Applicability of regulations. ment, military department, Govern-
293.502 Definitions. ment corporation, Government con-
293.503 Implementing instructions.
293.504 Composition of, and access to, the
trolled corporation, or other establish-
Employee Medical File System. ment in the Executive Branch of the
293.505 Establishment and protection of Em- Government (including the Executive
ployee Medical Folder. Office of the President), or any inde-
293.506 Ownership of the Employee Medical pendent regulatory agency;
Folder. Data subject means the individual
293.507 Maintenance and content of the Em- about whom the Office or agency is
ployee Medical Folder.
293.508 Type of folder to be used.
maintaining information in a system of
293.509 Use of existing Employee Medical records;
Folders upon transfer or reemployment. Individual means a citizen of the
293.510 Disposition of Employee Medical United States or an alien lawfully ad-
Folders. mitted for permanent residence;
293.511 Retention schedule. Information means papers, records,
AUTHORITY: 5 U.S.C. 552 and 4315; E.O. 12107 photographs, magnetic storage media,
(December 28, 1978), 3 CFR 19541958 Comp.; 5 micro storage media, and other docu-
U.S.C. 1103, 1104, and 1302; 5 CFR 7.2; E.O. mentary materials regardless of phys-
9830; 3 CFR 19431948 Comp.; 5 U.S.C. 2951(2) ical form or characteristics, containing
and 3301; and E.O. 12107.
data about an individual and required
SOURCE: 44 FR 65033, Nov. 9, 1979, unless by the Office in pursuance of law or in
otherwise noted. connection with the discharge of offi-
cial business, as defined by statute,
Subpart ABasic Policies on regulation, or administrative proce-
Maintenance of Personnel dure;
Records Maintain includes collect, use, or dis-
seminate;
293.101 Purpose and scope. Office means the Office of Personnel
(a) This subpart sets forth basic poli- Management;
cies governing the creation, develop- Personnel record means any record
ment, maintenance, processing, use, concerning an individual which is
dissemination, and safeguarding of per- maintained an used in the personnel
sonnel records which the Office of Per- management or personnel
sonnel Management requires agencies policysetting process. (For purposes of
to maintain in the personnel manage- this part, this term is not limited just
ment or personnel policy setting proc- to those personnel records in a system
ess. of records and subject to the Privacy
(b) Agencies in the Executive Branch Act);
of the Federal Government are subject Record means any item, collection, or
to specific Office of Personnel Manage- grouping of information about an indi-
ment recordkeeping requirements to vidual that is maintained by an agen-
varying degrees, pursuant to statute, cy, including, but not limited to, his or
Office regulation, or formal agree- her education, financial transactions,

ments between the Office and agencies. medical history, criminal history, or
This subpart applies to any department employment history;
88
System of records means a group of termining whether to collect the data

records under the control of any agen- from the individual concerned or a
cy from which information is retrieved third party are when:
by the name of the individual or by (1) The nature of the information is
some identifying number, symbol, or such that it can only be obtained from
other identifying particular assigned to another party;
the individual. (2) The cost of collecting the infor-
293.103 Recordkeeping standards. mation directly from the individual is
unreasonable when compared with the
(a) The head of each agency shall en- cost of collecting it from another
sure that persons having access to or party;
involved in the creation, development,
(3) There is virtually no risk that in-
processing, use, or maintenance of per-
formation collected from other parties,
sonnel records are informed of perti-
if inaccurate, could result in a deter-
nent recordkeeping regulations and re-
quirements of the Office of Personnel mination adverse to the individual con-
Management and the agency. Author- cerned;
ity to maintain personnel records does (4) The information supplied by an
not constitute authority to maintain individual must be verified by another
information in the record merely be- party; or
cause it may be useful; both Govern- (5) There are provisions made, to the
ment-wide and internal agency per- greatest extent practicable, to vertify
sonnel records shall contain only infor- information collected from another
mation concerning an individual that party with the individual concerned.
is relevant and necessary to accom-
plish the Federal personnel manage- 293.105 Restrictions on collection
ment purposes required by statute, Ex- and use of information.
ecutive order, or Office regulation. (a) First Amendment. Personnel
(b) The Office is responsible for es- records describing how individuals ex-
tablishing minimum standards of accu- ercise rights guaranteed by the First
racy, relevancy, necessity, timeliness, Amendment are prohibited unless ex-
and completeness for personnel records pressly authorized by statute, or by the
it requires agencies to maintain. These individual concerned, or unless perti-
standards are discussed in appropriate nent to and within the scope of an au-
chapters of the Guide to Personnel
thorized law enforcement activity.
Recordkeeping. Before approval of any
These rights include, but are not lim-
agency requests for changes in record-
ited to, free exercise of religious and
keeping practices governed by the
Guide to Personnel Recordkeeping, the political beliefs, freedom of speech and
Office will examine the proposal or re- the press, and freedom to assemble and
quest in the context of such standards to petition the government.
set forth by the agency in support of (b) Social Security Number.
the proposal and in light of the per- (1) Agencies may not require individ-
sonnel program area that requires uals to disclose their Social Security
these records. Number unless disclosure would be re-
quired;
[44 FR 65033, Nov. 9, 1979, as amended at 66
FR 66709, Dec. 27, 2001] (i) Under Federal statute; or
(ii) Under any statute, Executive
293.104 Collection of information. order, or regulation that authorizes
(a) Any information in personnel any Federal, State, or local agency
records whether or not those records maintaining a system of records that
are in a system of records, used in was in existence and operating prior to
whole or in part in making a deter- January 1, 1975, to request the Social
mination about an individuals rights, Security Number as a necessary means
benefits, or privileges under Federal of verifying the identity of an indi-
personnel programs should, to the vidual.
greatest extent practicable, be col- (2) Individuals asked to voluntarily

lected directly from the individual con- (circumstances not covered by para-
cerned. Factors to be considered in de- graph (b)(1) of this section) provide
89
293.106 5 CFR Ch. I (1116 Edition)
their Social Security Number shall suf- 293.107 Special safeguards for auto-
fer no penalty or denial of benefits for mated records.
refusing to provide it. (a) In addition to following the secu-
rity requirements of 293.106 of this
293.106 Safeguarding information part, managers of automated personnel
about individuals.
records shall establish administrative,
(a) To ensure the security and con- technical, physical, and security safe-
fidentiality of personnel records, in guards for data about individuals in
whatever form, each agency shall es- automated records, including input and
tablish administrative, technical, and output documents, reports, punched
physical controls to protect informa- cards, magnetic tapes, disks, and on-
tion in personnel records from unau- line computer storage. The safeguards
thorized access, use, modification, de- must be in writing to comply with the
struction, or disclosure. As a min- standards on automated data proc-
imum, these controls shall require that essing physical security issued by the
all persons whose official duties re- National Bureau of Standards, U.S. De-
quire access to and use of personnel partment of Commerce, and, as a min-
records be responsible and accountable imum, must be sufficient to:
for safeguarding those records and for (1) Prevent careless, accidental, or
unintentional disclosure, modification,
ensuring that the records are secured
or destruction of identifiable personal
whenever they are not in use or under
data;
the direct control of authorized per-
(2) Minimize the risk that skilled
sons. Generally, personnel records
technicians or knowledgeable persons
should be held, processed, or stored could improperly obtain access to,
only where facilities and conditions are modify, or destroy identifiable per-
adequate to prevent unauthorized ac- sonnel data;
cess. (3) Prevent casual entry by unskilled
(b) Personnel records must be stored persons who have no official reason for
in metal filing cabinets which are access to such data;
locked when the records are not in use, (4) Minimize the risk of an unauthor-
or in a secured room. Alternative stor- ized disclosure where use is made of
age facilities may be employed pro- identifiable personal data in testing of
vided they furnish an equivalent or computer programs;
greater degree of security than these (5) Control the flow of data into,
methods. Except for access by the data through, and from agency computer op-
subject, only employees whose official erations;
duties require access shall be allowed (6) Adequately protect identifiable
to handle and use personnel records, in data from environmental hazards and
whatever form or media the records unneccessary exposure; and
might appear. To the extent feasible, (7) Assure adequate internal audit
entry into personnel record storage procedures to comply with these proce-
areas shall be similarly limited. Docu- dures.
mentation of the removal of records (b) The disposal of identifiable per-
from storage areas must be kept so sonal data in automated files is to be
that adequate control procedures can accomplished in such a manner as to
be established to assure that removed make the data unobtainable to unau-
records are returned on a timely basis. thorized personnel. Unneeded personal
(c) Disposal and destruction of per- data stored on reusable media such as
magnetic tapes and disks must be
sonnel records shall be in accordance
erased prior to release of the media for
with the General Record Schedule
reuse.
issued by the General Services Admin-
istration for the records or, alter- 293.108 Rules of conduct.
natively, with Office or agency records
(a) Scope. These rules of conduct
control schedules approved by the Na-
apply to all Office and agency employ-

tional Archives and Records Service of
ees responsible for creation, develop-
the General Services Administration. ment, maintenance, processing, use,
90
dissemination, and safeguarding of per- to the regulations in this part and also
sonnel records. The Office and agencies to the regulations in part 297 of this
shall require that such employees are chapter. When agencies publish a no-
familiar with these and appropriate tice of system of records for personnel
supplemental agency internal regula- records required by the Office that are
tions. not included in the Offices notices,
(b) Standards of conduct. Office and those agency systems of records will be
agency employees whose official duties subject both to the regulations con-
involve personnel records shall be sen- tained in this part and to agency pro-
sitive to individual rights to personal mulgated regulations that implement
privacy and shall not disclose informa- the Privacy Act.
tion from any personnel record unless
disclosure is part of their official du- 293.203 Review of Office or agency
ties or required by executive order, reg- practices.
ulation, or statute (e.g., required by Reviews of agency personnel manage-
the Freedom of Information Act, 5 ment policies and practices will be con-
U.S.C. 552). ducted to insure compliance with Of-
(c) Improper uses of personnel informa- fice regulations. The Office may direct
tion. Any Office or agency employee agencies to take whatever corrective
who makes a disclosure of personnel action is necessary. Office or agency
records knowing that such disclosure is officials who have knowledge of viola-
unauthorized, or otherwise knowingly tions of these regulations shall take
violates these regulations, shall be sub- whatever corrective action is nec-
ject to disciplinary action and may essary. Agencies shall list officials of
also be subject to criminal penalties the Office of Personnel Management as
where the records are subject to the a routine user for personnel records to
Privacy Act (5 U.S.C. 552a). Employees assist the Office in its oversight re-
are prohibited from using personnel in- sponsibilities.
formation not available to the public,
gained through official duties, for com- Subpart COfficial Personnel
mercial solicitation or sale, or for per- Folder
sonal gain.
AUTHORITY: 5 U.S.C. 552; 5 U.S.C. 552a; 5
Subpart BPersonnel Records U.S.C. 1103; 5 U.S.C. 1104; 5 U.S.C. 1302, 5
Subject to the Privacy Act U.S.C. 2951(2), 5 U.S.C. 3301; 5 U.S.C. 4315;
E.O. 12107 (December 28, 1978), 3 CFR 1954
293.201 Purpose. 1958 Compilation; E.O. 9830 (February 24,
The purpose of this subpart is to set 1947); 3 CFR 19431948 Compilation.
forth the criteria to be used to deter- SOURCE: 50 FR 3309, Jan. 24, 1985, unless
mine when personnel records on indi- otherwise noted.
viduals are subject both to the regula-
tions contained in this part and to Of- 293.301 Applicability of regulations.
fice or agency regulations imple- Except for those agencies specifically
menting the Privacy Act of 1974, 5 excluded from Office of Personnel Man-
U.S.C. 552a. When personnel records are agement (OPM) recordkeeping require-
maintained within a system of records, ments by statute, OPM regulation, or
the records are deemed to be within the formal agreement between OPM and
scope of both the regulations in this the agency, this subpart applies to
part and Office or agency regulations and within this subpart agency
implementing the Privacy Act. meanseach executive department and
independent establishment of the Fed-
293.202 Records subject to Office or eral Government; each corporation
agency Privacy Act regulations. wholly owned or controlled by the
When the Office of Personnel Man- United States; and, with respect to po-
agement publishes in the FEDERAL sitions subject to civil service rules
REGISTER a notice of system of records and regulations, the legislative and ju-
for personnel records which are main- dicial branches of the Federal Govern-
tained by the agencies or by the Office, ment. OPM will list agencies to which
that system of records will be subject this subpart does not apply in the
91
293.302 5 CFR Ch. I (1116 Edition)
Guide to Personnel Recordkeeping, and OPF is transmitted by the NPRC to the

will amend the Guide from time to agency until the date that the NPRC
time to update that list. receives the OPF back from the agen-
[76 FR 52537, Aug. 23, 2011]
cy.
(4) An agency is no longer the custo-
293.302 Establishment of Official Per- dian of an OPF once the OPF has been
sonnel Folder. transferred to and accepted by the
Each agency shall establish an Offi- NPRC.
cial Personnel Folder (OPF) for each (5) Once NPRC has approved the
employee occupying a position subject transfer, the Office is the custodian of
to this part, except as provided in the OPF until the destruction date es-
293.306. Except as provided in the tablished for the file pursuant to the
Guide to Personnel Recordkeeping, National Archive and Records Adminis-
there will be only one OPF maintained trations General Records Schedule,
for each employee regardless of service unless another agency requests the
in various agencies. OPF from the NPRC in the interim.
(e) Agencies and custodians shall
[50 FR 3309, Jan. 24, 1985, as amended at 66 carry out their responsibilities with re-
FR 66709, Dec. 27, 2001]
spect to the OPF or eOPF in accord-
293.303 The roles and responsibilities ance with this subpart and the Offices
of the Office, agencies, and Guide to Personnel Recordkeeping.
custodians. [76 FR 52537, Aug. 23, 2011]
(a) The Official Personnel Folder
(OPF) of each employee in a position 293.304 Maintenance and content of
subject to civil service rules and regu- folder.
lations and of each former employee The head of each agency shall main-
who held such a position is part of the tain in the Official Personnel Folder
records of the Office of Personnel Man- the reports of selection and other per-
agement (Office). sonnel actions named in section 2951 of
(b) The Office has Government-wide title 5, United States Code. The folder
responsibility for developing regula- shall contain long-term records affect-
tions, practices and procedures for the ing the employees status and service
establishment, maintenance, and as required by OPMs instructions and
transfer of OPFs. as designated in the Guide to Personnel
(c) Agencies shall be responsible for Recordkeeping.
the following:
(1) The establishment of the OPF for [58 FR 65533, Dec. 15, 1993]
a new appointee or a new employee for
293.305 Type of folder to be used.
whom no OPF has previously been es-
tablished; and Each agency shall use only OPFs
(2) The maintenance of a previously from Office of Federal Supply and
existing OPF during the period any Services stock (Standard Form 66) for
new appointee or employee remains an the folders required by this part.
agencys employee.
(d)(1) Custodian means the agency in 293.306 Use of existing folders upon
physical possession of an OPF. In the transfer or reemployment.
case of an electronic OPF (eOPF), the When an agency hires a person who
custodian is the agency that has pri- has served on or after April 1, 1947, in
mary access to an eOPF contained a position subject to this part, it shall
within a document management sys- request the transfer of the OPF per-
tem approved by the Office. taining to the persons employment.
(2) A custodian shall be responsible The folder so obtained shall be used in
for the maintenance and transfer of the lieu of establishing a new OPF. In the
OPF or eOPF, and the costs associated event that the prior service occurred
with these activities. wholly before April 1, 1947, the agency
(3) An agency is the custodian of an shall request any files or records that
OPF it requests from the National Per- may be located in the Federal records
sonnel Records Center (NPRC), for any storage center. The request shall note
temporary use, from the date that the that because of the dates of service
92
there will likely be no OPF. Any such (c) Agencies are responsible for all
file or record found for this individual costs associated with the establish-
shall be incorporated into the OPF ment and maintenance of OPFs and the
being established for the employee. transfer of OPFs to the National Per-
(a) When a person for whom an OPF sonnel Records Center.
has been established transfers from one (d) Agencies are responsible for all
agency to another, the last employing costs associated with agency-initiated
(losing) agency shall, on request, trans- requests for OPFs or services from the
fer the OPF to the new employing National Personnel Records Center.
agency.
[50 FR 3309, Jan. 24, 1985; 50 FR 8993, Mar. 6,
(b) Before transferring the Official
1985, as amended at 76 FR 52537, Aug. 23, 2011]
Personnel Folder, the losing agency
shall: 293.308 Removal of temporary
(1) Remove those records of a tem- records from OPFs.
porary nature filed on the left side of
The employing agency having posses-
the folder, except for PMRS employees
sion of an OPF shall remove temporary
performance ratings of record includ-
records from the OPF before it is trans-
ing the performance plan on which the
ferred to another agency. For these and
most recent rating was based;
also for temporary records of their cur-
(2) Transfer performance ratings of
rent employees, maintenance of the
record and the performance plan on
records shall be in accordance with
which the most recent rating was based
General Records Schedule 1, promul-
from the Employee Performance File
gated by the General Services Adminis-
of PMRS employees to their Official
tration.
Personnel Folder, if the ratings and
plans are not maintained by the agency 293.309 Reconstruction of lost OPFs.
in the Official Personnel Folder; and
(3) Ensure that all permanent docu- Agencies will take necessary pre-
ments of the folder are complete, cor- cautions to safeguard all OPFs. In the
rect, and present in the folder in ac- event of a lost or destroyed OPF, the
cordance with the Guide to Personnel current (or last, in the case of a former
Recordkeeping. Federal employee) employing agency
shall take the necessary action to re-
[50 FR 3309, Jan. 24, 1985, as amended at 50 construct the essential portions of the
FR 35494, Aug. 30, 1985; 66 FR 66709, Dec. 27,
OPF as specified in the Guide to Per-
2001]
sonnel Recordkeeping or other Office
293.307 Disposition of folders of instructions.
former Federal employees. [50 FR 3309, Jan. 24, 1985, as amended at 66
(a) Folders of persons separated from FR 66709, Dec. 27, 2001]
Federal employment must be retained
by the losing agency for 30 working 293.310 Response to requests for in-
days after separation, and may be re- formation.
tained for additional 60 days (90 days The Office, or an agency in physical
where administratively necessary, e.g., possession of an OPF in response to a
where an appeal or an allegation of dis- third party Freedom of Information
crimination is made or where an em- Act (FOIA) request may disclose infor-
ployee retires or dies in service). mation as provided in this subpart. A
Thereafter, the OPF must be trans- current employees request for access
ferred to the General Services Admin- to his/her own OPF (also included are
istration, National Personnel Records employee performance file system fold-
Center (Civilian Personnel Records), ers and files) that cites the FOIA, as
111 Winnebago Street, St. Louis, Mis- with all stated Privacy Act requests
souri 63118. made by current employees, shall be
(b) When a former Federal employee processed in accordance with agency
is reappointed in the Federal service, Privacy Act procedures consistent with
the National Personnel Records Center Office regulations in part 297 of this
(Civilian Personnel Records) shall, chapter. All requests for their OPFs
upon request, transfer the OPF to the from former employees, and FOIA re-
new employing agency. quests for former employee OPFs, shall
93
293.311 5 CFR Ch. I (1116 Edition)
be referred to the Offices regional or (2) Would otherwise be protected

area office nearest to the location of from mandatory disclosure under an
the requester. exemption of the FOIA.
(c) In addition to the information de-
293.311 Availability of information. scribed in paragraph (a) of this section,
(a) The following information from a Government official may provide
both the OPF and employee perform- other information from these records
ance file system folders, their auto- (or automated equivalents) of an em-
mated equivalent records, and from ployee, to others outside of the agency,
other personnel record files that con- under a summons, warrant, subpoena,
stitute an agency record within the or other legal process; as provided by
meaning of the FOIA and which are the Privacy Act (5 U.S.C. 552a(b)(4)
under the control of the Office, about through (b)(11)), under those Privacy
most present and former Federal em- Act routine uses promulgated by the
ployees, is available to the public: Office, and as required by the FOIA.
(1) Name;
(2) Present and past position titles Subpart DEmployee
and occupational series; Performance File System Records
(3) Present and past grades;
(4) Present and past annual salary AUTHORITY: 5 U.S.C. 552a and 5 U.S.C. 4305
rates (including performance awards or and 4315; E.O. 12107 (December 28, 1978); 5
bonuses, incentive awards, merit pay U.S.C. 1103, 1104, and 1302; 3 CFR 19541958
amount, Meritorious or Distinguished Compilation; 5 CFR 7.2; E.O. 9830, 3 CFR 1943
Executive Ranks, and allowances and 1948 Compilation.
differentials); SOURCE: 47 FR 3080, Jan. 22, 1982, unless
(5) Present and past duty stations otherwise noted.
(includes room numbers, shop designa-
tions, or other identifying information 293.401 Applicability of regulations.
regarding buildings or places of em- This subpart applies to Executive
ployment); and agencies as defined in sections 105,
(6) Position descriptions, identifica- 3132(a)(1) and 4301(1) of title 5, U.S.
tion of job elements, and those per- Code, including Military Departments
formance standards (but not actual (but not non-appropriated fund employ-
performance appraisals) that the re- ees) as defined in section 102 of title 5,
lease of which would not interfere with U.S. Code, and independent establish-
law enforcement programs or severely ments as defined in section 104 of title
inhibit agency effectiveness. Perform- 5, U.S. Code. Within those agencies, the
ance elements and standards (or work requirements of this subpart apply to
expectations) may be withheld when all employees occupying positions sub-
they are so interwined with perform- ject to civil service rules and regula-
ance appraisals that their disclosure tions, including Senior Executive Serv-
would reveal an individuals perform- ice positions as defined in 5 U.S.C.
ance appraisal. 3132(a)(2).
(b) The Office or agency will gen-
erally not disclose information where 293.402 Establishment of separate
the data sought is a list of names, employee performance record sys-
present or past position titles, grades, tem.
salaries, performance standards, and/or (a) Copies of employees performance
duty stations of Federal employees ratings of record, including the per-
which, as determined by the official re- formance plans on which the ratings
sponsible for custody of the informa- are based, must be placed in either the
tion: employees Official Personnel Folder
(1) Is selected in such a way that (OPF) or in the Employee Performance
would reveal more about the employee File (EPF). However, other perform-
on whom information is sought than ance-related documents may be re-
the six enumerated items, the disclo- tained in the OPF only when the agen-
sure of which would constitute a clear- cy prescribes the use of a separate en-
ly unwarranted invasion of personal velope, temporarily located in the
privacy; or OPF, and removed whenever the OPF
94
(except as required in 293.404(b)) is fice of Personnel Management regula-

transferred to another agency. Per- tions regarding disclosures of such
formance ratings of record, including records contained in parts 293 and 297
the performance plans on which the of this chapter.
ratings are based, shall be retained on (3) Privacy Act requests for amend-
the left (temporary) side of the OPF. ment of records maintained in this sys-
No other performance-related record tem shall be processed by the respon-
shall be retained on the left (tem- sible agency official in accordance with
porary) or right (long term) side of the agency procedures consistent with Of-
OPF or shall be transferred to the Na- fice of Personnel Management regula-
tional Personnel Records Center (ex- tions regarding amendment of records
cept as required by 293.404(b)). contained in part 297 of this chapter.
(b) Except for performance records (d) Agencies maintaining the EPF in
maintained in the OPF consistent with an automated or microform system
paragraph (a) of this section, each shall issue instructions that contain
agency having employees occupying a necessary procedures to ensure that
position described in 293.401 shall pro- the same requirements as in paragraph
vide for maintenance of performance- (c) of this section, relating to all man-
related records for such employees in ual records, are met.
this EPF system. The agency may [47 FR 3080, Jan. 22, 1982, as amended at 51
elect to retain records in a separate FR 8410, Mar. 11, 1986]
file that is located in the same office
with the OPF, or in an envelope kept in 293.403 Contents of employee per-
the OPF itself. If the agency deter- formance files.
mines that a separate EPF is cost-ef- (a) A decision on what constitutes a
fective, such a file may be located in performance-related document within
another designated agency office (as the meaning of this subpart rests with
specified in the agencys performance the agency. Agency implementing in-
appraisal plan) including with super- structions, for both incumbents of the
visors or managers (hereinafter re- Senior Executive Service and other po-
ferred to as rating officials) or with sitions, shall provide specific written
Performance Review Boards. Any sup- guidance of the description of what
porting documents that the agency constitutes the agencys official per-
may prescribe as necessary for agency formance-related forms and docu-
officials in performance of their duties ments.
shall be kept in these files. (b) Agency implementing instruc-
(c)(1) Agencies shall provide their tions describing such records shall in-
employees access to their performance dicate where and for how long they are
files (automated and manual). Such a retained and how and when they are to
request for access shall be processed in be destroyed. Such instructions shall
accordance with established agency also describe what records are consid-
procedures, consistent with Office of ered to be performance-related (as spe-
Personnel Management regulations re- cifically as is feasible) and shall in-
garding access to records contained in clude all performance-related records
part 297 of this chapter. Such access maintained as a system of records
shall be provided to the employee or to within the meaning of the Privacy Act.
the employees designated representa- Such records would generally include:
tive, and such records may also be dis- (1) Any form or other document
closed to other officials of the agency which records the performance ap-
who have a need for the documents in praisal, including appraisals leading to
the performance of their duties. merit pay determinations.
(2) All other requests for performance (2) Any form or other document used
documents made to agency officials by rating officials to recommend a per-
(e.g., Freedom of Information Act re- sonnel action affecting an employee
quests or requests made under the (including a request for personnel ac-
routine use provisions of the Privacy tion document, but only when the ac-
Act) shall be processed by the respon- tion is not effected) when the basis for
sible agency official in accordance with the action (e.g., removal, reassign-
agency procedures consistent with Of- ment, demotion, promotion, or merit
95
293.404 5 CFR Ch. I (1116 Edition)
pay or other performance award) is per- (i) Performance ratings of record, in-
formance-related. cluding the performance plans on
(3) Recommendations for training which they are based, shall be retained
that are performance-related. for 4 years;
(4) Any form or other document fur- (ii) Supporting documents shall be
nished in support of recommended ac- retained for as long as the agency
tions such as those listed in paragraph deems appropriate (up to 4 years);
(b)(2) of this section and the agencys (iii) Performance records superseded
final decision on the matter (e.g., a rec- (e.g., through an administrative or ju-
ommendation for merit pay or an agen- dicial procedure) and performance-re-
cy decision to grant only one-half the lated records pertaining to a former
comparability pay adjustment). employee (except as prescribed in
(5) Any form or other document
293.405(a)) need not be retained for a
which the rating official is required by
minimum of 4 years. Rather, in the
the agency to keep during an appraisal
former case they are to be destroyed
period (e.g., quality control records,
and in the latter case agencies shall de-
production records, or similar records
termine the retention schedule; and
used to track employee performance
during the appraisal period.) (iv) Except where prohibited by law,
(6) Any form or other document re- retention of automated records longer
garding Performance Review Board de- than the maximum prescribed here is
cisions, including supporting docu- permitted for purposes of statistical
mentation and any transcript of hear- analysis so long as the data are not
ings or testimony from witnesses. used in any action affecting the em-
(7) Any form or other document re- ployee when the manual record has
garding decisions or recommendations been or should have been destroyed.
of agency Executive Resources Boards (2) When an employee is reassigned
related to performance appraisal or ac- within the employing agency, disposi-
tions resulting from performance ap- tion of records in this system, includ-
praisals. ing transfer with the employee who
(8) Appraisals of potential (e.g., in changes positions, shall be as agencies
connection with an agencys merit pro- prescribe and consistent with
motion procedures) if agency imple- 293.405(a).
menting instructions specifically re- (3) Appraisals of unacceptable per-
quire or permit retention of a copy. formance, where a notice of proposed
(9) Individual development plans. demotion or removal is issued but not
(10) Copies of licenses, certificates of effected, and all documents related
proficiency, or similar documents re- thereto, manual and automated, pursu-
quired of the position. ant to 5 U.S.C. 4303(d) must be de-
(c) General information about the stroyed after the employee completes
employee, i.e., identification data, in- one year of acceptable performance
formation concerning Federal and non- from the date of the written advance
Federal employment experience, and notice of the proposed removal or re-
information about any training production in grade notice. Under condi-
grams the employee participated in tions specified by an agency, and ear-
may, if an agency deems it appropriate, lier destruction date is permitted and
be retained in this system. destruction must be no later than 30
[47 FR 3080, Jan. 22, 1982, as amended at 63 days after the year is up.
FR 43867, Aug. 17, 1998] (b) Performance records for Senior
Executive Service appointees, includ-
293.404 Retention schedule. ing those serving under a Presidential
(a)(1) Except as provided in appointment under 5 U.S.C. 3392(c), are
293.405(a), performance ratings or doc- to be retained as follows:
uments supporting them are generally (1) Pursuant to 5 U.S.C. 4314(b) (3) and
not permanent records and shall, ex- (4), Senior Executive Service ap-
cept for appointees to the SES and in- pointees shall have their performance-
cluding incumbents of executive posi- related records maintained for five

tions not covered by SES, be retained consecutive years (from the date the
as prescribed below: appraisal is issued) beginning with the
96
effective date of appointment, includ- ance plans that are more than 4 years
ing individuals receiving appointments old, and other performance-related
pursuant to 5 U.S.C. 3593(b). records, according to agency policy es-
(2) When an appointee of the Senior tablished under 293.404(a)(2) and in ac-
Executive Service moves to another cordance with the Guide to Personnel
position in the Service, either with the Recordkeeping.
same or a different agency, all appro- (b) Consistent with transfer instruc-
priate performance-related documents tions pertaining to SES positions con-
five years old or less shall be forwarded tained in this part, employee perform-
in the Employee Performance File ance files shall be forwarded to gaining
along with the individuals OPF. agencies at the same time as the OPF
(3) When an employee in the Senior (5 CFR 293.207).
Executive Service accepts a Presi- (c) Consistent with retention sched-
dential appointment pursuant to 5 ules promulgated in 293.404, destruc-
U.S.C. 3392(c), the employees perform- tion of performance-related records
ance file shall be retained as long as shall be in accordance with agency pro-
the employee remains employed under cedures (e.g., by shredding or burning).
that Presidential appointment. When (d) If a former employee returns to
the appointment ends, and the indian agency, a new employee perform-
vidual does not return to the Senior ance file will be created unless the
Executive Service, the employees per- prior file for this employee is still
formance file shall be destroyed in ac- available. The original file may be re-
cordance with agency procedures. activated provided that, consistent
(c) Where any performance-related with the retention schedules and de-
document is needed in connection with struction requirements promulgated in
an ongoing administrative, negotiated, this subpart, the contents are properly
quasi-judicial, or judicial proceeding, disposed of.
and it continues to be retained in this (e)(1) It is the responsibility of the
system rather than another system, it agency Personnel Director to insure
may be retained for as long as nec- the maintenance of employee perform-
essary beyond the retention schedules ance files in accordance with this sub-
identified in paragraphs (a) and (b) of part and subparts A and B of this part,
this section. part 297 of this title, and with Office of
(d) Screening and purging of folders/ Personnel Management guidance.
envelopes and rating officials work (2) This responsibility may be dele-
files for the purpose of compliance with gated in writing to other agency offi-
these retention schedules shall be cials as appropriate. Implementing
through any agency process insuring guidelines for agency performance ap-
consistency with the requirements. praisal systems shall provide written
[47 FR 3080, Jan. 22, 1982, as amended at 51
instructions for compliance with Office
FR 8411, Mar. 11, 1986; 56 FR 65416, Dec. 17, rules and procedures as well as descrip-
1991] tions of the documents and where they
are retained, and shall ensure that
293.405 Disposition of records. records are retained in accordance with
(a) When the OPF of a non-SES em- the provisions of 293.402.
ployee is sent to another servicing of- [47 FR 3080, Jan. 22, 1982, as amended at 51
fice in the employing agency, to an- FR 8411, Mar. 11, 1986; 56 FR 65416, Dec. 17,
other agency, or to the National Per- 1991; 66 FR 66709, Dec. 27, 2001]
sonnel Records Center, the losing
servicing office shall include in the 293.406 Disclosure of records.
OPF all performance ratings of record Disclosure as used here means the
that are 4 years old or less, including furnishing of the record to someone
the performance plan on which the other than the individual to whom the
most recent rating was based, and the record pertains, his/her designated rep-
summary rating prepared when the em- resentative, or to an agency official
ployee changes positions, as prescribed who needs the information in the per-
in part 430 of this chapter. Also, the formance of official duties. Disclosure
losing office will purge from the OPF of information from this file system
all performance ratings and perform- shall be made only as permitted by the
97
293.501 5 CFR Ch. I (1116 Edition)
Privacy Act (5 U.S.C. 552a(b)) and, with assess the biological effect of a sub-
regard to the routine use provisions of stance or agent;
that section, only under a routine use (c) Material safety data sheets; or
published by the Office for the system (d) Any other record, in the absence
of records covering these records. How- of the above, which reveals the identity
ever, to the extent that this system (e.g., chemical, common, or trade
contains the data identified as being name) of a toxic substance of harmful
available to the public in 293.311, for physical agent.
most Federal employees and under the Employee Medical File System (EMFS)
same restrictions listed in that section, means the agencys complete system
that information shall also be made (automated, microformed, and paper
available to the public from this sys- records) for employee occupational
tem. medical records.
Employee Medical Folder (EMF) means
Subpart EEmployee Medical File a separate file folder (normally SF 66
System Records D) established to contain all of the oc-
cupational medical records (both long-
SOURCE: 51 FR 33235, Sept. 19, 1986, unless tern and short-term records) des-
otherwise noted. ignated for retention, which will be
maintained by the employing agency
293.501 Applicability of regulations. during the employees Federal service.
The applicability of this subpart is Epidemiological Record means a record
identical to that described in 293.301. maintained by an agency or subele-
ment thereof as a result of an official
293.502 Definitions. medical research study conducted
For the purpose of this Subpart under the authority of the agency.
Employee is defined at 5 U.S.C. 2105 Implementing instructions means any
and excludes student volunteers and form of internal agency issuance that
contractor employees. provides the guidance required in
Employee Assistance and Counseling 293.503 and any other guidance the
Record means the record created when agency deems appropriate.
an employee participates in an agency Occupational Medical Record means an
assistance/counseling program (e.g., occupation-related, chronological, cu-
drug or alcohol abuse or personal coun- mulative record, regardless of the form
seling programs under Pub. L. 91616, or process by which it is maintained
92255, and 79658, respectively). (e.g., paper document, microfiche,
Employee Exposure Record (which is to microfilm, or automatic data proc-
be interpreted consistent with the term essing media), of information about
as it is defined at 29 CFR 1910.20(c)(8)) health status developed on an em-
means a record containing any of the ployee, including personal and occupa-
following kinds of information con- tional health histories and the opinions
cerning employee exposure to toxic and written evaluations generated in
substances or harmful physical agents the course of diagnosis and/or employ-
(as defined at 29 CFR 1910.20(c)(11)): ment-related treatment/examination
(a) Environmental (workplace) moni- by medical health care professionals
toring or measuring, including per- and technicians. This definition in-
sonal, area, grab, wipe, or other form of cludes the definition of medical records
sampling, as well as related collection at 29 CFR 1910.20(c)(6); when the term
and analytical methodologies, calcula- Occupational Medical Record is used
tions, and other background data rel- in these regulations, it includes Em-
evant to interpretation of the results ployee Exposure Records (as that
obtained; term is defined in this section) and oc-
(b) Biological monitoring results cupational illness, accident, and injury
which directly assess the absorption of records.
a substance or agent by body systems Non-occupational/Patient Record
(e.g., the level of a chemical in the means a record of treatment or exam-

blood, urine, breath, hair, fingernails, ination, created and maintained by a
etc.) but not including results which health care facility, when the person is
98
admitted to or voluntarily seeks treat- when medical evidence is a factor (5

ment at the health care facility for CFR parts 339, 432, 630, 752, and 831);
non-job-related reasons. Records main- (h) Provide guidance on how an ac-
tained by an agency dispensary are pa- counting of any record disclosure, as
tient records for the purposes of these required by the Privacy Act (5 U.S.C.
regulations except when such records 552a(c)), will be done in a way that en-
result as a condition of employment or sures that the accounting will be avail-
relate to an on-the-job occurrence. In able for the life of the EMF;
these cases, the records are Occupa- (i) When long-term occupational
tional Medical Records as defined medical records exist, provide for the
herein. creation of an EMF for an employee
Non-personal Record means any agen- transferring to another agency or leav-
cy aggregate or statistical record or re- ing Government service, and whether
port resulting from studies covering an EMF is to be established at the time
employees or resulting from studies or an employee is being reassigned within
the work-site environment. the agency;
(j) Ensure a right of access (con-
293.503 Implementing instructions. sistent with any special Privacy Act
Agencies must issue written internal handling procedures invoked) to the
instructions describing how their records, in whatever format they are
EMFS is to be implemented. These in- maintained, by the employee or a des-
structions must ignated representative;
(k) Ensure that a knowledgeable offi-
(a) Describe overall operation of the
cial determines that all appropriate
system within the agency including the
long-term occupational medical
designation of the agency official who
records are in an EMF prior to its
will be responsible for overall system
transfer to another agency, to the
management. When the agency has a
NPRC, or to another office within the
medical officer, that individual must
same employing agency;
be named the system manager. The
(l) Ensure that all long-term occupa-
system manager may then designate
tional medical records an agency re-
others within the agency to handle the
ceives in an EMF are maintained,
day-to-day management of the records,
whether in that same EMF or by some
e.g., the custodian of the records at the
other agency procedure, and forwarded
site where they are maintained;
to a subsequent employing agency or
(b) Be prepared with joint participa-
to NPRC;
tion by agency medical, health, and
(m) Ensure that, if occupational med-
safety, and personnel officers;
ical records are to be physically lo-
(c) Describe where and under whose cated in the same office as the Official
custody employee occupational med- Personnel Folder (OPF), the records
ical records will be physically main- are maintained physically apart from
tained; each other;
(d) Designate which agency office(s) (n) Sets forth a policy that distin-
will be responsible for deciding when guishes, particularly for purposes of
and what occupational medical records records disclosure, records in the na-
are to be disclosed either to other ture of physician treatment records
agency officials or outside the agency; (which are generally not appropriate
(e) Ensure proper records retention for disclosure to non-medical officials)
and security, and preserve confiden- from other medical reports properly
tiality of doctor/patient relationships; available to officials making manage-
(f) Provide that when the agency is ment decisions concerning the em-
requesting an EMF from the National ployee;
Personnel Records Center (NPRC), the (o) Provide guidance that distin-
request form will show the name, title, guishes records properly subject to this
and address of that agencys system part from those (e.g., Postal Service or
manager or designee, who is the only Foreign Service employee medical
official authorized to receive the EMF; records) subject to different rules, par-
(g) Be consistent with Office regula- ticularly in Privacy Act and Freedom
tions relating to personnel actions of Information Act matters;
99
293.504 5 CFR Ch. I (1116 Edition)
(p) Ensure that guidance regarding records to agency officials (both med-
the processing of Privacy Act matters ical and non-medical) will be granted
is consistent with Office regulations only when the specific information
implementing the Privacy Act at 5 sought is needed for the performance of
CFR parts 293 and 297; and official duties.
(q) Ensure that no security classifica- (c) Other agencies for employee occu-
tion is assigned to an EMF by includ- pational medical records made to the
ing therein any occupational medical custodian of the records must be proc-
record that has such a classification. In essed in accordance with the disclosure
this regard, the agency creating the provisions of the Privacy Act (5 U.S.C.
classified medical record is required to 552a(b)) and the Offices regulations at
retain it separately from the EMF part 297 of this chapter.
while placing a notice in the EMF of (d) Processing of a Privacy Act re-
its existence and describing where request for amendment of any EMFS
quests for this record are to be sub- record must be consistent with the Of-
mitted. fices regulations contained in part 297
of this chapter regarding amendment
293.504 Composition of, and access of records.
to, the Employee Medical File Sys-
tem.
FR 66709, Dec. 27, 2001]
(a) All employee occupational med-
ical records (which exclude employee 293.505 Establishment and protection
assistance/counseling, patient, non-per- of Employee Medical Folder.
sonal, and epidemiological records) (a) As required by these rules, agen-
whether they are maintained in an cies must establish an EMF when the
automated, microform, or paper mode, employee leaves the employing agency
and wherever located in the agency, and occupational medical records for
are part of the EMFS. The records that employee exist; agencies may also
maintained in the EMFS are part of a establish an EMF (if none presently ex-
Governmentwide Privacy Act system ists) for active employees if the agency
of records established by the Office. chooses. An agency must request the
Agencies have the responsibility to en- transfer of an existing EMF (and main-
sure that such documents are maintain that EMF as received) at the same
tained in accordance with the Offices time it requests the transfer of an em-
Privacy Act regulations in part 297 of ployees OPF using the procedures con-
this chapter, with the agencys instruc- tained in 293.306.
tions implementing those regulations, (b) Neither the original occupational
and with the retention schedule for em- medical record nor duplicates are to be
ployee medical records stipulated in retained in the OPF. Prior to the es-
293.511. While non-occupational/pa- tablishment of an EMF for a separating
tient records pertaining to an em- employee, when such records are cre-
ployee are not required to be included ated, they must be maintained phys-
as a record within the EMFS, under ically apart from the OPF, although
certain conditions to be discussed in they may be kept in the same office.
subsequent OPM guidance, copies of (c) Records in an EMF, whether or
such records are occupationally-related not located in an office other than
and, in those cases, may be included in where the OPF is maintained, must be
the system. properly safeguarded using procedures
(b) Agencies must provide employees ensuring equal or greater levels of pro-
access to their own EMFS records con- tection as those in 293.106. Disclosures
sistent with Office regulations con- must be made only to those authorized
tained in 297.204(c) of this chapter. to receive them, as described in
When unexcepted access can be pro- 293.504(b), and employees must be able
vided directly to the employee, such to ascertain from agency implementing
unexcepted access must also be pro- instructions the location of all of their
vided to any representative specifically medical records. An EMF must be
designated in writing by the employee under the control of a specifically des-

to receive the record. Disclosure of an ignated medical, health, safety, or per-
employees occupational medical sonnel officer as prescribed in the
100
agencys implementing internal proce- (b) When an employee is separated

dures. from the Federal service, the EMF
must be forwarded to the NPRC with
293.506 Ownership of the Employee the OPF, using the instructions in
Medical Folder. 293.307 of this part.
The EMF of each employee in a posi- (c) When a former Federal employee
tion subject to civil service rules and is re-employed by an agency, and that
regulations is part of the records of the agency believes that an EMF exists, ei-
Office. When the EMF also contains oc- ther at the last employing agency or at
cupational medical records created the NPRC, the agency will request the
during employment in a position not EMF, but no sooner than 30 days after
subject to the civil service (e.g., with the date of the new appointment. No
the Postal Service), the EMF is then EMFs will be routinely retrieved dur-
part of the records of both the Office ing the initial review process (as is
and the employing agency. done with the OPF) except when au-
thority exists for the agency to require
293.507 Maintenance and content of
the Employee Medical Folder. a medical evaluation prior to reaching
a decision on employability. EMFs are
The agency head must maintain all to be transferred by the NPRC only to
appropriate employee occupational the agency-designated manager (med-
medical records in the EMFS. When an ical, health, safety, or personnel, or
EMF is established for an employee, as other designee) shown on the request
required in 293.504, the agencys EMFS form.
must be searched to obtain all records
designated for retention in the EMF. 293.511 Retention schedule.
293.508 Type of folder to be used. (a) Temporary EMFS records must
not be placed in a newly-created EMF
Each agency must use a folder that
for a separating employee and must be
(a) has been specifically identified as
removed from an already existing EMF
the EMF and issued through Federal
before its transfer to another agency or
Supply Service contracts (Standard
to the NPRC. Such records must be dis-
Form 66 D); (b) has been authorized as
an exception to this form by the Office posed of in accordance with General
for use by a specific agency; or (c) in Records Schedule (GRS) 1, item 21,
the case of an EMF containing records issued by the National Archives and
under joint control of the Office and Records Administration (NARA).
another agency, an exception to the (b) Occupational Medical Records
use of this form that has been jointly considered to be long-term records
authorized. must be maintained for the duration of
employment, plus 30 years or for as
293.509 Use of existing Employee long as the OPF is maintained, which-
Medical Folders upon transfer or ever is longer. Therefore, upon separa-
reemployment. tion, the records must be provided to
The requirements of 293.306, regard- the employees new agency, or they
ing the use of existing OPFs, apply to must be transferred to the NPRC,
the use of existing EMFs upon the em- which will dispose of them in accord-
ployees transfer to or reemployment ance with GRS 1, item 21, issued by
in a new employing agency. NARA.
293.510 Disposition of Employee Med- PART 294AVAILABILITY OF

ical Folders.
OFFICIAL INFORMATION
(a) When an employee transfers to
another Federal agency, the EMF must Subpart AProcedures for Disclosure of
be transferred to the gaining agency at Records Under the Freedom of Infor-
the same time as the employees OPF. mation Act
The EMF is to be addressed only to the
gaining agencys designated manager Sec.

(medical, health, safety, or personnel 294.101 Purpose.
officer, or other designee) of the EMFS. 294.102 General definitions.
101
294.101 5 CFR Ch. I (1116 Edition)
294.103 Definitions of categories and assign- request. Overhead expenses (such as
ment of requests and requesters to cat- the cost of space, and heating or light-
egories. ing the facility in which the records
294.104 Clarifying a requesters category.
are stored), are not included in direct
294.105 Access to the requesters own
records. costs.
294.106 Handbook of Publications, Periodi- Disclose or disclosure means making
cals, and OPM Issuances. records available, on request, for exam-
294.107 Places to obtain records. ination and copying, or furnishing a
294.108 Procedures for obtaining records. copy of records.
294.109 Fees. Duplication means the process of
294.110 Appeals. making a copy of a document nec-
294.111 Custody of records; subpoenas. essary to respond to an FOIA request.
294.112 Confidential commercial informa-
tion.
Among the forms that such copies can
take are paper, microform, audiovisual
Subpart BThe Public Information Function materials, or machine readable docu-
mentation (e.g., magnetic tape or
294.201 Public information policy. disk).
Records, information, document, and
Subpart COffice Operations
material have the same meaning as the
294.301 Policy and interpretations. term agency records in section 552 of
title 5, United States Code.
Subpart DCross References Review means the process of initially
examining documents located in re-
294.401 References.
sponse to a request to determine
AUTHORITY: 5 U.S.C. 552, Freedom of Infor- whether any portion of any document
mation Act, Pub. L. 92502, as amended by located may be withheld. It also in-
the Freedom of Information Reform Act of
cludes processing documents for disclo-
1986, Pub. L. 99570, and E.O. 12600, 52 FR
23781, 3 CFR, 1987 Comp., p. 235. sure; e.g., doing all that is necessary to
excise them and otherwise prepare
them for release. Review does not in-
Subpart AProcedures for Disclo- clude time spent resolving general
sure of Records Under the legal and policy issues regarding the
Freedom of Information Act application of exemptions.
Search means the time spent looking
SOURCE: 54 FR 25094, June 13, 1989, unless for material that is responsive to a re-
otherwise noted. quest, including page-by-page or line-
by-line identification of material with-
294.101 Purpose. in documents.
This subpart contains the regulations [54 FR 25094, June 13, 1989, as amended at 58
of the Office of Personnel Management FR 32043, June 8, 1993]
(OPM) implementing the Freedom of
Information Act (FOIA), 5 U.S.C. 552. 294.103 Definitions of categories and
Except as provided by 294.105, OPM assignment of requests and request-
will use the provisions of this subpart ers to categories.
to process all requests for records. OPM will apply the definitions and
procedures contained in this section to
294.102 General definitions. assign requesters to categories. The
All of the terms defined in the Free- four categories established by 5 U.S.C.
dom of Information Act, and the defini- 552(a) are requests for commercial use,
tions included in the Uniform Free- requests for non-commercial use made
dom of Information Act Fee Schedule by educational or non-commercial sci-
and Guidelines issued by the Office of entific institutions, requests for non-
Management and Budget apply, regard- commercial use made by representa-
less of whether they are defined in this tives of the news media, and all others.
subpart. (a) Request for commercial use. A
Direct costs means the expenditures commercial use request is from or on
that an agency actually incurs in behalf of one who seeks information for
searching for, duplicating, and review- a use or purpose that furthers the com-
ing documents to respond to an FOIA mercial, trade, or profit interests of
102
the requester or the person or institu- news media officials to this category
tion on whose behalf the request is only when a request is not for commer-
made. In determining whether a re- cial use. If a person meets the other
quest properly belongs in this cat- qualifications for inclusion, OPM will
egory, OPM will look first to the in- not apply the term commercial use
tended use of the documents being re- to his or her request for records in sup-
quested. port of a news dissemination function.
(b) Request for non-commercial use (d) Requests from others. The category
made by an educational or non-commer- all others, consists of any requesters
cial scientific institution. OPM will in- not covered by paragraphs (a), (b), or
clude requesters in one of the two cat-
(c) of this section. However, as pro-
egories described in paragraphs (b) (1)
vided by 294.105, OPM will use its Pri-
and (2) of this section when the request
is being made as authorized by, and vacy Act regulations, rather than this
under the auspices of, a qualifying in- subpart, when individuals ask for
stitution; and the records are sought, records about themselves that may be
not for a commercial use, but in fur- filed in OPM systems of records.
therance of scholarly or scientific re-
search. 294.104 Clarifying a requesters cat-
egory.
(1) Educational institution refers to
any public or private, preschool, ele- (a) Seeking clarification of a requesters
mentary, or secondary school, institu- category. OPM may seek additional
tion of undergraduate or graduate clarification before assigning a person
higher education, or institution of pro- to a specific category if
fessional or vocational education, (1) There is reasonable cause to doubt
which operates a program or programs the requesters intended use of records;
of scholarly or scientific research. or
(2) A non-commercial scientific institu- (2) The intended use is not clear from
tion refers to an institution that is not the request itself; or
operated on a commercial basis as that
(3) There is any other reasonable
term is referenced in paragraph (a) of
doubt about qualifications that may af-
this section, and which is operated
solely to conduct scientific or schol- fect the fees applicable or the services
arly research, the results of which are rendered under 294.109.
not intended to promote any particular (b) Prompt notification to requester.
product or industry. When OPM seeks clarification as pro-
(c) Request from a representative of the vided by paragraph (a) of this section,
news media. Representative of the it will provide prompt notification ei-
news media refers to any person ac- ther by telephone or in writing of the
tively gathering news for an entity information or materials needed.
that is organized and operated to pub- (c) Effect of seeking clarification on
lish, broadcast, or otherwise dissemi- time limits for responding. When apply-
nate news to the public. The term ing the time limits in section 552 of
news means information that is title 5, United States Code, OPM will
about current events or that would be not officially consider any request for
of current interest to the public. Exam- records as being received until the offi-
ples of news media entities include tel- cial who is assigned responsibility for
evision or radio stations broadcasting making a decision on releasing the
to the public at large, and publishers of records has received any additional
periodicals who make their products clarification sought under paragraphs
available for purchase or subscription (a) and (b) of this section; and has de-
by the general public. Free-lance jour-
termined that the clarifying informa-
nalists may be regarded as representa-
tion is sufficient to correctly place the
tives of the news media if they dem-
onstrate a solid basis for expecting requester in one of the categories pre-
publication, or some other form of dis- scribed in this section. If the requested
clarifying information is not received
semination, through a particular orga-

nization even though they are not ac- within a reasonable time, OPM will,
tually employed by it. OPM will assign
103
294.105 5 CFR Ch. I (1116 Edition)
based on the information available, de- the category that is required to be in-
termine a final category for the re- dexed by 5 U.S.C. 552(a)(2). Most of
quest and calculate applicable fees. OPMs publications may be found in
OPMs Library in room 5H27 at the ad-
FR 32043, June 8, 1993] dress listed in paragraph (b) of this sec-
tion.
294.105 Access to the requesters own (d) As provided by 5 U.S.C. 552(a)(2),
records. OPM has determined that it is unneces-
When the subject of a record, or a sary and impractical to publish the
duly authorized representative of the Handbook of Publications, Periodi-
subject, requests his or her own records cals, and Issuances and addendum
from a Privacy Act system of records, more frequently than annually because
as defined by 5 U.S.C. 552a (a)(5), and of the small number of revisions that
the record is maintained so that it is occur.
retrieved by the subjects name or [57 FR 32150, July 21, 1992, as amended at 66
other personal identifier, OPM will FR 66710, Dec. 27, 2001]
process the request under the Privacy
Act procedures in part 297 of this chap- 294.107 Places to obtain records.
ter. (a) Address requests for OPM records
294.106 Handbook of Publications, to the officials listed in paragraph (b),
Periodicals, and OPM Issuances. (c), or (d) of this section.
(b) The following is a list of key
(a)(1) Annually, OPM publishes OPM- Washington, DC, officials of OPM and
AG-PSD-01, Handbook of Publica- their principal areas of responsibility.
tions, Periodicals, and Issuances, and Address requests for records to the ap-
accompanying addendum. This hand- propriate official using the officials
book and addendum lists material pub- title and the following address: Office
lished and offered for sale are available of Personnel Management, 1900 E
for public inspection or copying. Unless Street, NW., Washington, DC 20415.
the material is published and offered
for sale, OPM makes available for pub- Send to For subject-matter about
lic inspection and copying:
Associate Director for Administrative services; informa-
(i) Final opinions made by OPM in Administration. tion management, including
the adjudication of cases; automated data processing;
(ii) OPM policy statements and inter- equal employment opportunity;
procurement; and personnel.
pretations adopted by OPM but not Associate Director for Retirement; life and health insur-
published in the FEDERAL REGISTER; Retirement and Insur- ance.
and ance.
(iii) OPM administrative staff manu- Associate Director for Personnel management in agen-
Personnel Systems cies; pay; position classification;
als and instructions that affect a mem- and Oversight. wage grade jobs; performance
ber of the public. management; and employee
(2) To the extent required to prevent and labor relations.
a clearly unwarranted invasion of per- Assistant Director for Governmentwide personnel statis-
Workforce Information. tics; official personnel and em-
sonal privacy, OPM may delete identi- ployee medical folders.
fying details when it makes available Associate Director for Background investigations and re-
or publishes an opinion, statement of Investigations. lated records on individuals.
Associate Director for Nationwide examining and testing
policy, interpretation, or staff manual Career Entry. for employment; promotions; ad-
or instruction. ministrative law judges; affirma-
(b) A copy of this handbook and ad- tive employment programs for
dendum is available at no cost from minorities, women, veterans,
and the handicapped; recruiting
thePublishing Management Branch, and employment; and staffing
Office of Personnel Management, room policy.
B464, 1900 E Street, NW., Washington, Chief Financial Officer ... Financial management.
DC 204150001. Director for Human Re- Training, education, and develop-
sources Development. ment; senior executive service.
(c) OPM indexes material in this Director, Washington Examining, testing, and training
handbook and addendum format for the Area Service Center. operations in Washington, DC.
convenience of the public. Indexing

does not constitute a determination (c) Direct requests for records on sub-
that all of the material listed is within jects not specifically referred to in this
104
section or in the handbook or adden- for the purpose of creating a record to

dum, to Plans and Policies Division respond to the request. OPM will ad-
(CHP500), Office of Information Re- vise the individual that it does not
sources Management, Administration have records in the format sought. If
Group, Office of Personnel Manage- other existing records would reason-
ment, 1900 E Street, NW., Washington, ably respond to the request or portions
DC 20415. of it, OPM may provide these. If fees as
(d) The following is a list of OPM re- provided in 294.109 apply to any alter-
gional offices. Address requests for re- native records, OPM will advise the re-
gional records to the Regional Direc- quester before providing the records.
tor, Office of Personnel Management in
the appropriate region: FR 32150, July 21, 1992; 58 FR 32044, June 8,
Atlanta RegionRichard B. Russell Fed- 1993]
eral Building, Suite 904, 75 Spring Street,
SW., Atlanta, GA 303033019. 294.108 Procedures for obtaining
Chicago RegionJohn C. Kluczynski records.
Federal Building, 30th Floor, 230 South Dear- (a) Mailing or delivering a request. Any
born Street, Chicago, IL 60604.
Dallas Region1100 Commerce Street,
person may ask for records under sec-
Dallas, TX 75242. tion 552 of title 5, United States Code,
Philadelphia RegionWilliam J. Green, by directing a letter to one of the orga-
Jr., Federal Building, 600 Arch Street, Phila- nizations listed in 294.107, or by deliv-
delphia, PA 191061596. ering a request in person at the ad-
San Francisco Region211 Main Street, dresses listed in that section during
7th Floor, San Francisco, CA 94105. business hours on a regular business
(e) When an organization does not have day.
records in its custody. When an OPM or- (b) Proper marking. Each request for
ganization receives a Freedom of Infor- records should have a clear and promi-
mation Act request for OPM records nent notation on the first page, such as
that it does not have in its possession, Freedom of Information Act Re-
it will normally either quest. In addition, if sent by mail or
(1) Retrieve the records from the or- otherwise submitted in an envelope or
ganization that has possession of them; other cover, mark the outside clearly
or and prominently with FOIA Request
(2) Promptly forward the request to or Freedom of Information Act Re-
the appropriate organization. If a per- quest.
son has asked to be kept apprised of (c) Contents of request letter. A request
anything that will delay the official re- must describe the records sought in
ceipt of a request, OPM will provide no- sufficient detail to enable OPM per-
tice of this forwarding action. Other- sonnel to locate the records with a rea-
wise, OPM may, at its option, provide sonable amount of effort.
such notice. (1) OPM will regard a request for a
(f) Applying the time limits. When ap- specific category of records as fulfilling
plying the time limits in section 552 of the requirements of this paragraph, if
title 5, United States Code, OPM will it enables responsive records to be
not officially consider any request to identified by a technique or process
be received until it arrives in the OPM that is not unreasonably burdensome
organization that has responsibility for or disruptive to OPM operations.
the records sought. (2) Whenever possible, a request
(g) Records from other Government should include specific information
agencies. When a person seeks records about each record sought, such as the
that originated in another Government date, number, title or name, author, re-
agency, OPM may refer the request to cipient, and subject matter of the
the other agency for response. Ordi- record.
narily, OPM will provide notice of this (3) If an OPM organization deter-
type of referral. mines that a request does not reason-
(h) Creating records. If a person seeks ably describe the records sought, it will
information from OPM in a format either provide notice of any additional

that does not currently exist, OPM will information needed or otherwise state
not ordinarily compile the information why the request is insufficient. OPM
105
294.109 5 CFR Ch. I (1116 Edition)
will also offer the record seeker an op- fees. This notice will offer an oppor-
portunity to confer, with the objective tunity to confer with OPM staff to re-
of reformulating the request so that it formulate the request to meet the re-
meets the requirements of this section. questers needs at a lower cost. Upon
(d) Medical records. OPM or another agreement to pay the required fees,
Government agency may disclose the OPM will further process the request.
medical records of an applicant, em- (4) As described in 294.107, OPM ordi-
ployee, or annuitant to the subject of narily responds to FOIA requests in a
the record, or to a representative des- decentralized manner. Because of this,
ignated in writing. However, medical OPM may at times refer a single re-
records may contain information about quest to two or more OPM entities to
an individuals mental or physical con- make separate direct responses. In
dition that a prudent physician would such cases, each responding entity may
hesitate to give to the individual. assess fees as provided by this section,
Under such circumstances, OPM may but only for direct costs associated
disclose the records, including the with any response it has prepared.
exact nature and probable outcome of (5) If fees for document search are au-
the condition, only to a licensed physi- thorized as provided in paragraph (c) of
cian designated in writing for that pur- this section, OPM may assess charges
pose by the individual or his or her des- for employee time spent searching for
ignated representative. documents and other direct costs of a
(e) Publications. If the subject matter search, even if a search fails to locate
of a request includes material pub- records or if records located are deter-
lished and offered for sale (e.g., by the mined to be exempt from disclosure.
Superintendent of Documents, Govern- Searches should be conducted in the
ment Printing Office), OPM will ex- most efficient and least expensive man-
plain where a person may review and/or ner so as to minimize the cost for both
purchase the publications. the agency and the requester, e.g., per-
(f) Responses within 10 working days. sonnel should not engage in line-by-
Except in unusual circumstances (as line search when photocopying an en-
defined in 5 U.S.C. 552(a)(6)(B)), OPM tire document would be a less expen-
will determine whether to disclose or sive and quicker way to comply with a
deny records within 10 working days request.
after receipt of the request (excluding (6) Services requested and performed
weekends and holidays) and will pro- but not required under the FOIA, such
vide notice immediately of its deter- as formal certification of records as
mination and the reasons therefor, and true copies, will be subject to charges
of the right to appeal any adverse de- under the Federal User Charge Statute
termination. (31 U.S.C. 483a) or other applicable
statutes.
FR 32044, June 8, 1993] (b) Rates used to compute fees. The fol-
lowing rates form the basis for assess-
294.109 Fees. ing reasonable, standard charges for
document search, duplication, and re-
(a) Applicability of fees. (1) OPM will
view as required by 5 U.S.C. 552(a)(4).
furnish, without charge, reasonable
The listing of rates below should be
quantities of material that it has avail-
used in conjunction with the fee com-
able for free distribution to the public.
(2) OPM may furnish other materials, ponents listed in paragraph (c) of this
subject to payment of fees intended to section:
recoup the full allowable direct costs of Service Rate
providing services. Fees for these ma-
Employee time ....................... Salary rate plus 16% to cover
terials may be waived if the request benefits.
meets the requirements specified in Photocopies (up to 812 $.013 per page.
paragraph (f) of this section. 14).
(3) If a request does not include an Printed materials, per 25 $.025.
pages or fraction thereof.
acceptable agreement to pay fees and Computer time ....................... Actual direct cost.
does not otherwise convey a willing- Supplies and other materials Actual direct cost.
ness to pay fees, OPM will promptly Other costs not identified Actual direct cost.
above.
provide notification of the estimated
106
(c) Assessing fees based on requesters document search, the cost of duplica-
category. Rates are assessed differently tion, and the cost of review. OPM will
for the different categories of request- apply the rates in paragraph (b) of this
ers as defined in 294.103. Requests section to the cost components that
have three cost components for the apply to the requesters category as
purpose of assessing fees: the cost of follows:
Requesters category Search Review Duplication
Commercial .............................. Actual direct costs .................. Actual direct costs .................. Actual direct costs.
Non-commercial (educational No charge .............................. No charge .............................. Actual direct costs. 1
or scientific institution) or
news media.
All others .................................. Actual direct costs 2 ............... No charge .............................. Actual direct costs. 1
1 First100 pages of paper copies or reasonable equivalent, such as a microfiche containing the equivalent of 100 pages, are
copied free.
2 First 2 hours of manual search time are free. If requested records are maintained in a computerized data base, OPM will use
the following formula, suggested by OMB, to provide the equivalent of 2 hours manual search time free before charging for com-
puter search time: The operators hourly salary plus 16% will be added to the hourly cost of operating the central processing unit
that contains the record information.
(d) Payment of fees. Fees are payable the payment of applicable fees in ad-
by check or money order to the Office vance.
of Personnel Management. (1) If an OPM official, who is author-
(1) If the total charge for fulfilling ized to make a decision on a particular
the request will be less than $25, no fee request, determines that the requester
will be assessed (except as provided in has a history of prompt payment of
paragraph (d)(3) of this section). FOIA fees, OPM will provide notice of
(2) If a request may reasonably result the likely cost and obtain satisfactory
in a fee assessment of more than $25, assurance of full payment.
OPM will not release the records unless (2) When a person, or an organization
the requester agrees in advance to pay that a person represents, has pre-
the anticipated charges. viously failed to pay assessed fees in a
(3) OPM may aggregate requests and timely manner (i.e., payment was not
charge fees accordingly, when there is made within 30 days of the billing
a reasonable belief that a requester, or date), OPM will require full payment of
a group of requesters acting in concert, all fees in advance.
is attempting to break down a request (3) If a person, or an organization
into a series of requests to evade the that a person represents, has not paid
assessment of fees. fees previously assessed, OPM will not
begin to process any new request for
(i) If multiple requests of this type
records until the requester has paid the
occur within a 30-day period, OPM may
full amount owed plus any applicable
provide notice that it is aggregating interest, and made a full advance pay-
the requests and that it will apply the ment for the new request.
fee provisions of this section, including
(f) Waiver or reduction of fees. OPM
any required agreement to pay fees and will furnish documents without any
any advance payment. charge, or at a reduced charge, if dis-
(ii) Before aggregating requests of closure of the information is in the
this type made over a period longer public interest because it is likely to
than 30 days, OPM will assure that it contribute significantly to public un-
has a solid basis on which to conclude derstanding of the operations or activi-
that the requesters are acting in con- ties of the Government, and release of
cert and are acting specifically to the material is not primarily in the
avoid payment of fees. commercial interest of the requester.
(iii) OPM will not aggregate multiple (1) In determining whether disclosure
requests on unrelated subjects from is in the public interest because it is
one person. likely to contribute significantly to
(e) Payment of fees in advance. If OPM public understanding of the operations

estimates or determines that fees are or activities of the Government, OPM
likely to exceed $250, OPM may require shall consider the following factors:
107
294.110 5 CFR Ch. I (1116 Edition)
(i) The subject of the request: Wheth- (iv) If specialized use of the docu-
er the subject of the requested records ments is contemplated, a clear state-
concerns the operations or activities ment of the requesters qualifications
of the Government; that are relevant to the specialized use.
(ii) The information value of the in- (2) A requester may appeal the denial
formation to be disclosed: Whether the of a waiver request as provided by
disclosure is likely to contribute to 294.110 of this part.
an understanding of Government oper- (h) Fees not paid; penalties; debt collec-
ations or activities; tion. (1) If a request, which requires the
(iii) The contribution to an under- advance payment of fees under the cri-
standing of the subject by the general teria specified in this section, is not ac-
public likely to result from disclosure: companied by the required payment,
Whether disclosure of the requested in- OPM will promptly notify the re-
formation will contribute to public quester that the required fee must be
understanding; and paid within 30 days, and that OPM will
(iv) The significance of the contribu-
not further process the request until it
tion to public understanding: Whether
receives payment.
the disclosure is likely to contribute
significantly to public under- (2) OPM may begin assessing interest
standing of Government operations or charges on an unpaid bill starting on
activities. the 31st day following the date on
(2) In determining whether disclosure which the bill was sent. Interest will be
of the information is or is not pri- charged at the rate prescribed in 31
marily in the commercial interest of U.S.C. 3717, and will accrue from the
the requester, OPM shall consider the date of the billing.
following factors: (3) To encourage the repayment of
(i) The existence and magnitude of a debts incurred under this subpart, OPM
commercial interest. Whether the re- may use the procedures authorized by
quester has a commercial interest that Public Law 97365, the Debt Collection
would be furthered by the requested Act of 1982. This may include disclo-
disclosure; and, if so sure to consumer reporting agencies
(ii) The primary interest in disclosure. and the use of collection agencies.
Whether the magnitude of the identi-
[58 FR 32044, June 8, 1993]
fied commercial interest of the re-
quester is sufficiently large, in com- 294.110 Appeals.
parison with the public interest in dis-
closure, that disclosure is primarily (a) When an OPM official denies
in the commercial interest of the re- records or a waiver of fees under the
quester. Freedom of Information Act, the re-
(3) In all cases the burden of proof quester may appeal to the
shall be on the requester to present Office of the General Counsel, Office of Per-
evidence or information in support of a sonnel Management, Washington, DC 20415
request for a waiver or reduction of
fees. (b) A person may appeal denial of a
(g) Denial of waiver request. (1) An Freedom of Information Act request
OPM official may deny a request for a for information maintained by OPMs
full or partial waiver of fees without Office of the General Counsel to the
further consideration if the request Deputy Director, Office of Personnel Man-
does not include: agement Washington, DC 20415
(i) A clear statement of the request-
ers interest in the requested informa- (c) If an official of another agency de-
tion; nies a Freedom of Information Act re-
(ii) A clear statement of the use pro- quest for records in one of OPMs Gov-
posed for the information and whether ernment-wide systems of records, the
the requester will derive income or requester should consult that agencys
other benefit from such use; regulations for any appeal rights that
(iii) A clear statement of how the may apply. An agency may, at its dis-
public will benefit from OPMs release cretion, direct these appeals to OPMs
of the requested information; and Office of the General Counsel.
108
(d) An appeal should include a copy cial information, directly or indirectly,

of the initial request, a copy of the let- to OPM. The term includes, but is not
ter denying the request, and a state- limited to, corporations, state govern-
ment explaining why the appellant be- ments, and foreign governments.
lieves the denying official erred. (c) Submitters of information shall
(e) The appeals provided for in this designate by appropriate markings, ei-
section constitute the final levels of ther at the time of submission or at a
administrative review that are avail- reasonable time thereafter, any por-
able. If a denial of information or a de- tions of their submissions that they
nial of a fee waiver is affirmed, the reconsider to be confidential commercial
quester may seek judicial review in the
information. Such designations shall
district court of the United States in
expire 10 years after the date of sub-
the district in which he or she resides,
or has his or her principal place of mission unless the submitter requests,
business, or in which the agency and provides reasonable justification
records are situated, or in the District for, a designation period of greater du-
of Columbia. ration.
(d) OPM shall, to the extent per-
294.111 Custody of records; submitted by law, provide prompt written
poenas. notice to an information submitter of
(a) The Chief, Plans and Policies Di- Freedom of Information requests or ad-
vision, Administration Group, OPM, ministrative appeals if:
has official custody of OPM records. A (1) The submitter has made a good
subpoena or other judicial order for an faith designation that the requested
official record from OPM should be material is confidential commercial in-
served on the formation, or
Chief, Plans and Policies Division, Office of (2) OPM has reason to believe that
Personnel Management, 1900 E Street NW., the requested material may be con-
Washington, DC 20415 fidential commercial information.
(b) See 5 CFR part 297, subpart D (e) The written notice required in
Disclosure of Records, of this title, for paragraph (d) of this section shall ei-
the steps other officials should take on ther describe the confidential commer-
receipt of a subpoena or other judicial cial material requested or include as
order for an Office record. an attachment, copies or pertinent por-
tions of the records.
FR 32150, July 21, 1992] (f) Whenever OPM provides the noti-
fication and opportunity to object re-
294.112 Confidential commercial inquired by paragraphs (d) and (h) of this
formation. section, it will advise the requester
(a) In general, OPM will not disclose that notice and an opportunity to ob-
confidential commercial information ject are being provided to the sub-
in response to a Freedom of Informa- mitter.
tion Act request except in accordance (g) The notice requirements of para-
with this section. graph (d) of this section shall not apply
(b) The following definitions from if:
Executive Order 12600, apply to this (1) OPM determines that the informa-
section: tion should not be disclosed;
(1) Confidential commercial information (2) The information has been lawfully
means records provided to the Govern-
published or officially made available
ment by a submitter that arguably
to the public;
contain material exempt from release
under Exemption 4 of the Freedom of (3) Disclosure of the information is
Information Act, 5 U.S.C. 552(b)(4), be- required by law (other than 5 U.S.C.
cause disclosure could reasonably be 552);
expected to cause substantial competi- (4) The information was submitted on
or after August 20, 1992, and has not
tive harm.
(2) Submitter means any person or en- been designated by the submitter as ex-
tity who provides confidential commer- empt from disclosure in accordance
109
294.201 5 CFR Ch. I (1116 Edition)
with paragraph (c) of this section, un- decides to disclose the information
less OPM has substantial reason to be- over the objection of a submitter, OPM
lieve that disclosure of the information shall forward to the submitter a writ-
would result in competitive harm; or ten notice, which shall include:
(5) The designation made by the sub- (1) A statement of the reasons why
mitter in accordance with paragraph the submitters disclosure objections
(c) of this section appears obviously were not sustained;
frivolous; except that, in such a case, (2) A description of the information
OPM shall, within a reasonable number to be disclosed; and
of days prior to a specified disclosure (3) A specified disclosure date.
date, notify the submitter in writing of (j) OPM will notify both the sub-
any final administrative decision to mitter and the requester of its intent
disclose the information. to disclose material a reasonable num-
(h) The notice described in paragraph ber of days prior to the specified disclo-
(d) of this section shall give a sub- sure date.
mitter a reasonable period from the (k) Whenever a requester brings suit
date of the notice to provide OPM with seeking to compel disclosure of con-
a detailed written statement of any ob- fidential commercial information,
jection to disclosure. The statement OPM shall promptly notify the sub-
shall specify all grounds for with- mitter.
holding any of the material under any [57 FR 32150, July 21, 1992]
exemption of the Freedom of Informa-
tion Act. When Exemption 4 of the Subpart BThe Public Information
FOIA is cited as the grounds for with-
holding, the specification shall dem-
Function
onstrate the basis for any contention 294.201 Public information policy.
that the material is a trade secret or
(a) In addition to the basic policies of
commercial or financial information
the Office relative to the disclosure of
that is privileged or confidential. It
information when requested by a mem-
must also include a specification of
ber of the public, the Office has an
any claim of competitive harm, includ-
independent public information policy
ing the degree of such harm, that
for bringing to the attention of the
would result from disclosure. Informa-
public through news releases, publica-
tion provided in response to this para- tions of the Office, or other methods,
graph may itself be subject to disclo- information concerning the functions
sure under the FOIA. Information proof the Office as a Federal agency, and
vided in response to this paragraph the programs administered by the Of-
shall also be subject to the designation fice.
requirements of paragraph (c) of this (b) The Assistant Director for Public
section. Failure to object in a timely Affairs carries out the public informa-
manner shall be considered a state- tion policy of the Office. In addition,
ment of no objection by OPM, unless each employee of the Office shall co-
OPM extends the time for objection operate in carrying out this policy.
upon timely request from the sub-
mitter and for good cause shown. The [50 FR 3310, Jan. 24, 1985]
provisions of this paragraph concerning
opportunity to object shall not apply Subpart COffice Operations
to notices of administrative appeals,
when the submitter has been pre- 294.301 Policy and interpretations.
viously provided an opportunity to ob- (a) Statements of Office policy and
ject at the time the request was ini- interpretations of the laws and regula-
tially considered. tions administered by the Office which
(i) OPM shall consider carefully a the Office has adopted, whether or not
submitters objections and specific published in the FEDERAL REGISTER,
grounds for nondisclosure, when re- are available to the public.
ceived within the period of time de- (b) Generally, memoranda, cor-
scribed in paragraph (h) of this section, respondence, opinions, data, staff stud-
prior to determining whether to dis- ies, information received in confidence,
close the information. Whenever OPM and similar documentary material,
110
when prepared for the purpose of inter- 295.208 Restrictions that apply to released
nal communication within the Office records.
or between the Office and other agen- 295.209 Procedure when a decision is not
made prior to the time a response is re-
cies, organizations, or persons, are not
quired.
available to the public. 295.210 Procedure in the event of an adverse
[50 FR 3310, Jan. 24, 1985, as amended at 66 ruling.
FR 66710, Dec. 27, 2001]
Subpart CSchedule of Fees
Subpart DCross References 295.301 Fees.
294.401 References. Subpart DPenalties

The table below provides assistance 295.401 Penalties.
in locating other OPM regulations in
title 5 of the Code of Federal Regula- AUTHORITY: 5 U.S.C. App. (Sec. 1103, Civil
Service Reform Act of 1978; 31 U.S.C. 9701).
tions that have provisions on the dis-
closure of records: SOURCE: 73 FR 58020, Oct. 6, 2008, unless
otherwise noted.
Type of information Location
Classification appeal records ................. 511.616. Subpart AGeneral Provisions

Classification information ....................... 175.101.
Employee performance folders .............. 293.311. 295.101 Scope and purpose.
Examination and related subjects 300.201.
records. (a) This part sets forth policies and
Grade and pay retention records .......... 536.405. procedures you must follow when you
Investigative records .............................. 736.104.
Job grading reviews and appeals 532.707. submit a demand or request to an em-
records. ployee of the U.S. Office of Personnel
Medical information ................................ 297.205 and 293 Management (OPM) to produce official
subpart E.
Official Personnel Folders ..................... 293.311.
records and information, or provide
Privacy and personnel records .............. 297. testimony relating to official informa-
Retirement ............................................. 831.106 and tion, in connection with a legal pro-
841.108. ceeding. You must comply with these
requirements when you request the re-
[54 FR 25098, June 13, 1989, as amended at 58 lease or disclosure of official records
FR 32046, June 8, 1993; 70 FR 31286, May 31, and information.
2005] (b) OPM intends these provisions to:
(1) Promote economy and efficiency
PART 295TESTIMONY BY OPM in its programs and operations;
EMPLOYEES RELATING TO OFFI- (2) Minimize the possibility of involv-
CIAL INFORMATION AND PRO- ing OPM in controversial issues not re-
DUCTION OF OFFICIAL RECORDS lated to our functions;
IN LEGAL PROCEEDINGS (3) Prevent the misuse of OPM em-
ployees as involuntary expert wit-
Subpart AGeneral Provisions nesses for private interests or as inap-
propriate expert witnesses as to the
Sec. state of the law;
295.101 Scope and purpose. (4) Maintain OPMs impartiality
295.102 Applicability. among private litigants where neither
OPM nor any other Federal entity is a
Subpart BRequests for Testimony and named party; and
Production of Documents (5) Protect sensitive, confidential in-
formation and the deliberative proc-
295.201 General prohibition esses of OPM.
295.202 Factors OPM will consider. (c) In providing for these require-
295.203 Filing requirements for demands or ments, OPM does not waive the sov-
requests for documents or testimony.
295.204 Service of subpoenas or requests.
ereign immunity of the United States.
295.205 Processing demands or requests. (d) This part provides guidance for
295.206 Final determination. the internal operations of OPM. It does

295.207 Restrictions that apply to testi- not create any right or benefits, sub-
mony. stantive or procedural, that a party
111
295.102 5 CFR Ch. I (1116 Edition)
may rely upon in any legal proceeding formed or is performing services under
against the United States. such an agreement for OPM; and
(3) Any individual who served or is
295.102 Applicability. serving in any consulting or advisory
This part applies to demands and re- capacity to OPM, whether formal or in-
quests to employees of OPM in legal formal.
proceedings in which OPM is not a (4) Provided, that this definition does
named party, for factual or expert tes- not include persons who are no longer
timony relating to official information employed by OPM and who are retained
or for production of official records or or hired as expert witnesses or who
information. However, it does not agree to testify about general matters
apply to: available to the public, or matters with
(a) Demands upon or requests for a which they had no specific involvement
current OPM employee to testify as to or responsibility during their employ-
facts or events that are unrelated to ment with OPM.
his or her official duties or that are un- Records or official records and informa-
related to the functions of OPM; tion mean:
(b) Demands upon or requests for a (1) All documents and materials
former OPM employee to testify as to which are OPM agency records under
matters in which the former employee the Freedom of Information Act, 5
was not directly or materially involved U.S.C. 552;
while at OPM; (2) All other documents and mate-
(c) Requests for the release of records rials contained in OPM files; and
under the Freedom of Information Act, (3) All other information or materials
5 U.S.C. 552, or the Privacy Act, 5 acquired by an OPM employee in the
U.S.C. 552(a); and performance of his or her official du-
(d) Congressional or Government Ac- ties or because of his or her official sta-
countability Office (GAO) demands and tus.
requests for testimony or records. Request means any informal request,
295.103 Definitions. by whatever method, for the produc-
tion of records and information or for
Demand means a subpoena, or an testimony which has not been ordered
order or other command of a court or by a court or other competent author-
other competent authority, for the pro- ity.
duction, disclosure, or release of Testimony means any written or oral
records or for the appearance and testi- statements, including depositions, an-
mony of an OPM employee that is swers to interrogatories, affidavits,
issued in a legal proceeding. declarations, recorded interviews, and
General Counsel means the General statements made by an individual in
Counsel of OPM or a person to whom connection with a legal proceeding.
the General Counsel has delegated au-
thority under this part.
Legal proceeding means any matter
Subpart BRequests for Testimony
before a court of law, administrative and Production of Documents
board or tribunal, commission, admin-
295.201 General prohibition.
istrative law judge, hearing officer, or
other body that conducts a legal or ad- No employee may produce official
ministrative proceeding. Legal pro- records and information or provide any
ceeding includes all phases of litiga- testimony relating to official informa-
tion. tion in response to a demand or request
OPM means the U.S. Office of Per- without the prior, written approval of
sonnel Management. the General Counsel.
OPM employee or employee means:
(1) Any current or former officer or 295.202 Factors OPM will consider.
employee of OPM; The General Counsel, in his or her
(2) Any other individual hired sole discretion, may grant an employee
through contractual agreement by or permission to testify on matters relat-
on behalf of the OPM or who has per- ing to official information, or produce
112
official records and information, in re- (q) The demand or request is suffi-
sponse to an appropriate demand or re- ciently specific to be answered.
quest. Among the relevant factors that
the General Counsel may consider in 295.203 Filing requirements for de-
making this decision are whether: mands or requests for documents or
(a) The purposes of this part are met; testimony.
(b) Allowing such testimony or pro- You must comply with the following
duction of records would be necessary requirements whenever you issue de-
to prevent a miscarriage of justice; mands or requests to an OPM employee
(c) OPM has an interest in the deci- for official records and information or
sion that may be rendered in the legal testimony.
proceeding; (a) Your request must be in writing
(d) Allowing such testimony or pro- and must be submitted to the General
duction of records would assist or Counsel. If you serve a subpoena on
hinder OPM in performing its statu- OPM or an OPM employee before sub-
tory duties or use OPM resources in a mitting a written request and receiving
way that will interfere with the ability a final determination, OPM will oppose
of OPM employees to do their regular the subpoena on grounds that your re-
work; quest was not submitted in accordance
(e) Allowing such testimony or pro- with this subpart.
duction of records would be in the best (b) You written request must contain
interest of OPM or the United States; the following information:
(f) The records or testimony can be
(1) The caption of the legal pro-
obtained from other sources;
ceeding, docket number, and name and
(g) The demand or request is unduly
address of the court or other authority
burdensome or otherwise inappropriate
involved.
under the applicable rules of discovery
(2) A copy of the complaint or equiva-
or the rules of procedure governing the
lent document setting forth the asser-
case or matter in which the demand or
tions in the case and any other plead-
request arose;
ing or document necessary to show rel-
(h) Disclosure would violate a stat-
evance;
ute, Executive order or regulation;
(i) Disclosure would reveal confiden- (3) A list of categories of records
tial, sensitive, or privileged informa- sought, a detailed description of how
tion, trade secrets or similar, confiden- the information sought is relevant to
tial commercial or financial informa- the issues in the legal proceeding, and
tion, otherwise protected information, a specific description of the substance
or would otherwise be inappropriate for of the testimony or records sought;
release; (4) A statement as to how the need
(j) Disclosure would impede or inter- for the information outweighs the need
fere with an ongoing law enforcement to maintain any confidentiality of the
investigation or proceedings, or com- information and outweighs the burden
promise constitutional rights; on OPM to produce the records or pro-
(k) Disclosure would result in OPM vide testimony;
appearing to favor one private litigant (5) A statement indicating that the
over another private litigant; information sought is not available
(l) Disclosure relates to documents from another source, from other per-
that were produced by another agency; sons or entities, or from the testimony
(m) A substantial Government inter- of someone other than an OPM em-
est is implicated; ployee, such as a retained expert;
(n) The demand or request is within (6) If testimony is requested, the in-
the authority of the party making it; tended use of the testimony, a general
(o) The demand improperly seeks to summary of the desired testimony, and
compel an OPM employee to serve as a showing that no document could be
an expert witness for a private inter- provided and used in lieu of testimony;
est; (7) A description of all prior deci-
(p) The demand improperly seeks to sions, orders, or pending motions in the
compel an OPM employee to testify as case that bear upon the relevance of
to a matter of law; the requested records or testimony;
113
295.204 5 CFR Ch. I (1116 Edition)
(8) The name, address, and telephone ered necessary to promote a significant
number of counsel to each party in the interest of OPM or the United States
case; and or for other good cause.
(9) An estimate of the amount of
time that the requester and other par- 295.206 Final determination.
ties will require with each OPM em- The General Counsel makes the final
ployee for time spent by the employee determination on demands and re-
to prepare for testimony, in travel, and quests to employees for production of
for attendance in the legal proceeding. official records and information or tes-
(c) The Office of Personnel Manage- timony. All final determinations are
ment reserves the right to require addi- within the sole discretion of the Gen-
tional information to complete your eral Counsel. The General Counsel will
request where appropriate. notify the requester and the court or
(d) Your request should be submitted other authority of the final determina-
at least 45 days before the date that tion, the reasons for the grant or de-
records or testimony is required. Re- nial of the demand or request, and any
quests submitted in less than 45 days conditions that the General Counsel
before records or testimony is required may impose on the release of records or
must be accompanied by a written ex- information, or on the testimony of an
planation stating the reasons for the OPM employee.
late request and the reasons for expe-
dited processing. 295.207 Restrictions that apply to tes-
(e) Failure to cooperate in good faith timony.
to enable the General Counsel to make (a) The General Counsel may impose
an informed decision may serve as the conditions or restrictions on the testi-
basis for a determination not to com- mony of OPM employees including, for
ply with your request. example, limiting the areas of testi-
mony or requiring the requester and
295.204 Service of subpoenas or re- other parties to the legal proceeding to
quests. agree that the transcript of the testi-
Subpoenas or requests for official mony will be kept under seal or will
records or information or testimony only be used or made available in the
must be served on the General Counsel, particular legal proceeding for which
U.S. Office of Personnel Management, testimony was requested. The General
1900 E Street, NW., Washington, DC Counsel may also require a copy of the
20415. transcript of testimony at the request-
ers expense.
295.205 Processing demands or re- (b) OPM may offer the employees
quests. written declaration in lieu of testi-
(a) After service of a demand or re- mony.
quest to testify, the General Counsel (c) If authorized to testify pursuant
will review the demand or request and, to this part, an employee may testify
in accordance with the provisions of as to facts within his or her personal
this subpart, determine whether, or knowledge, but, unless specifically au-
under what conditions, to authorize thorized to do so by the General Coun-
the employee to testify on matters re- sel, the employee shall not:
lating to official information and/or (1) Disclose confidential or privileged
produce official records and informa- information;
tion. (2) Testify as to facts when the Gen-
(b) OPM will process requests in the eral Counsel determines such testi-
order in which they are received. Ab- mony would not be in the best interest
sent exigent or unusual circumstances, of OPM or the United States; or
OPM will respond within 45 days from (3) For a current OPM employee, tes-
the date that we receive it. The time tify as an expert or opinion witness
for response will depend upon the scope with regard to any matter arising out
of the request. of the employees official duties or the
(c) The General Counsel may grant a functions of OPM unless testimony is
waiver of any procedure described by being given on behalf of the United
this subpart where a waiver is consid- States.
114
295.208 Restrictions that apply to re- mony or produce documents, and re-
leased records. spectfully decline to comply with the
(a) The General Counsel may impose demand, citing United States ex rel.
conditions or restrictions on the re- Touhy v. Ragen, 340 U.S. 462 (1951). A
lease of official records and informa- written response may be offered to a
tion, including the requirement that request, or to a demand, if permitted
parties to the proceeding obtain a pro- by the court or other competent au-
tective order or execute a confiden- thority.
tiality agreement to limit access and
any further disclosure. The terms of Subpart CSchedule of Fees
the protective order or of a confiden-
tiality agreement must be acceptable 295.301 Fees.
to the General Counsel. In cases where
protective orders or confidentiality (a) Generally. The General Counsel
agreements have already been exe- may condition the production of
cuted, OPM may condition the release records or appearance for testimony
of official records and information on upon advance payment of a reasonable
an amendment to the existing protec- estimate of the costs to OPM.
tive order or confidentiality agree- (b) Fees for records. Fees for producing
ment. records will include fees for searching,
(b) If the General Counsel so deter- reviewing, and duplicating records,
mines, original OPM records may be costs of attorney time spent in review-
presented for examination in response ing the demand or request, and ex-
to a demand or request, but they are penses generated by materials and
not to be presented as evidence or oth- equipment used to search for, produce,
erwise used in a manner by which they and copy the responsive information.
could lose their identify as official Costs for employee time will be cal-
OPM records, and they are not to be culated on the basis of the hourly pay
marked or altered. In lieu of the origi- of the employee (including all pay, al-
nal records, certified copies will be pre- lowance, and benefits). Fees for dupli-
sented for evidentiary purposes (see 28 cation will be the same as those
U.S.C. 1733). charged by OPM in its Freedom of In-
formation Act regulations at 5 CFR
295.209 Procedure when a decision is part 294.
not made prior to the time a re-
sponse is required. (c) Witness fees. Fees for attendance
by a witness will include fees, expenses,
If a response to a demand or request and allowances prescribed by the
is required before the General Counsel courts rules. If no such fees are pre-
can make the determination referred
scribed, witness fees will be determined
to in Sec.295.206, the General Counsel,
based upon the rule of the Federal dis-
when necessary, will provide the court
trict court closest to the location
or other competent authority with a
where the witness will appear. Such
copy of this part, inform the court or
fees will include cost of time spent by
other competent authority that the de-
mand or request is being reviewed, and the witness to prepare for testimony,
seek a stay of the demand or request in travel, and for attendance in the
pending a final determination. legal proceeding.
(d) Payment of fees. You must pay
295.210 Procedure in the event of an witness fees for current OPM employ-
adverse ruling. ees and any records certification fees
If the court or other competent au- by submitting to the General Counsel a
thority fails to stay the demand, the check or money order for the appro-
employee upon whom the demand or priate amount made payable to the
request is made, unless otherwise ad- Treasury of the United States. In the
vised by the General Counsel, will ap- case of testimony by former OPM em-
pear at the stated time and place, ployees, you must pay applicable fees
produce a copy of this part, state that directly to the former employee in ac-
the employee has been advised by coun- cordance with 28 U.S.C. 1821 or other
sel not to provide the requested testi- applicable statutes.
115
295.401 5 CFR Ch. I (1116 Edition)
(e) Certification (authentication) of Subpart BRequest for Access

copies of records. The U.S. Office of Per-
297.201 General provisions.
sonnel Management may certify that 297.202 Methods of access.
records are true copies in order to fa- 297.203 Access by the parent of a minor or
cilitate their use as evidence. If you by the legal guardian of an individual de-
seek certification, you must request clared to be incompetent.
certified copies from OPM at least 45 297.204 Access by the representative of the
days before the date they will be need- data subject.
297.205 Access to medical records.
ed. The request should be sent to the 297.206 Fees charged by the Office.
General Counsel. You will be charged a 297.207 Denials of access and appeals with
certification fee of $15.00 for each docu- respect to such denials.
ment certified. 297.208 Judicial review.
(f) Waiver or reduction of fees. The
Subpart CAmendment of Records
General Counsel, in his or her sole dis-
cretion, may, upon a showing of rea- 297.301 General provisions.
sonable cause, waive or reduce any fees 297.302 Time limits.
in connection with the testimony, pro- 297.303 Applicability of amendment provi-
sions.
duction, or certification of records.
297.304 Approval of requests to amend
(g) De minimis fees. Fees will not be records.
assessed if the total charge would be 297.305 Denial of requests to amend records.
$10.00 or less. 297.306 Appeal of a denial of a request to
amend a record.
297.307 Statement of disagreement.
Subpart DPenalties 297.308 Judicial review.
295.401 Penalties. Subpart DDisclosure of Records

(a) An employee who discloses offi- 297.401 Conditions of disclosure.
cial records or information or gives 297.402 Disclosure pursuant to a compulsory
testimony relating to official informa- legal process served on the Office.
tion, except as expressly authorized by 297.403 Accounting of disclosure.
OPM or as ordered by a Federal court
after OPM has had the opportunity to Subpart EExempt Records
be heard, may face the penalties pro- 297.501 Exemptions.
vided in 18 U.S.C. 641 and other applica- AUTHORITY: Sec. 3, Pub. L. 93579, 88 Stat.
ble laws. Additionally, former OPM 1896 (5 U.S.C. 552a).
employees are subject to the restric-
SOURCE: 53 FR 1998, Jan. 26, 1988, unless
tions and penalties of 18 U.S.C. 207 and
otherwise noted.
216.
(b) A current OPM employee who tes-
tifies or produces official records and
Subpart AGeneral Provisions
information in violation of this part 297.101 Purpose and scope.
may be subject to disciplinary action.
This part sets forth the regulations
of the U.S. Office of Personnel Manage-
PART 297PRIVACY PROCEDURES ment (the Office) to govern the mainte-
FOR PERSONNEL RECORDS nance, protection, disclosure, and
amendment of records within the sys-
Subpart AGeneral Provisions tems of records as defned by the Pri-
vacy Act of 1974 (5 U.S.C. 552a), Public
Sec.
Law 93579.
297.101 Purpose and scope.
297.102 Definitions. 297.102 Definitions.
297.103 Designations of authority by system
manager. In this part, the terms agency, indi-
297.104 Types of records. vidual, maintain, record, statistical
297.105 Agency and Office responsibilities records, and systems of records have the
for systems of records and applicability same meanings as defined in the Pri-
of the regulations. vacy Act, 5 U.S.C. 552a. In addition:

297.106 Contact point for Privacy Act mat- Access means providing a copy of a
ters. record to, or allowing review of the
116
original record by, the data subject or Office solely on its own employees and,
the data subjects authorized rep- when appropriate, on others in contact
resentative, parent, or legal guardian; with the Office regarding matters with-
Act means the Privacy Act of 1974, in its authority.
Public Law 93579, 5 U.S.C. 552a, as (b) Centralized systems of personnel
amended; records are physically established and
Agency means any department or maintained by the Office with regard
independent establishment in the Exec- to most current and former Federal
utive Branch of the Federal Govern- employees and some applicants for
ment, including a Government corpora- Federal employment.
tion, of Government-controlled cor- (c) Governmentwide systems of per-
poration, except those specifically ex- sonnel records are maintained by the
cluded from the Office recordkeeping Office, and through Office delegations
requirements by statute, this title, or of authority, by Federal agencies with
formal agreement between the Office regard to their own employees or appli-
and the agency. cants for employment. Although they
Amendment means the correction, ad- are Office records, they are in the phys-
dition, deletion, or destruction of a ical custody of those agencies. Though
record or specific portions of a record; in the physical custody of agencies, the
Data subject means the individual to Office retains authority under its
whom the information pertains and by record management authority and
whose name or other individual identi- under the Privacy Act to decide ap-
fier the information is retrieved; peals of initial agency determinations
Disclosure means providing personal regarding access to and amendment of
review of a record, or a copy thereof, to material in these systems.
someone other than the data subject or
the data subjects authorized rep- 297.105 Agency and Office respon-
resentative, parent, or legal guardian; sibilities for systems of records and
Office means the U.S. Office of Per- applicability of the regulations.
sonnel Management; (a) These regulations apply to proc-
Personnel record means any record essing requests from both current and
concerning an individual which is former Office employees for records
maintained and used in the personnel contained in internal, central, and
management or personnel policy-mak- Governmentwide systems of records
ing process; and managed by the Office.
System manager means the Office or (b) Agencies are solely and totally re-
agency official, designated by the head sponsible for processing requests re-
of the agency, who has the authority to garding records maintained in their in-
decide Privacy Act matters relative to ternal systems of records. Agency regu-
each system of records maintained by lations, and not these Office regula-
the Office. tions, govern the implementation of
the Privacy Act for agency internal
297.103 Designations of authority by systems; there is no right of appeal to
system manager. the Office from an agencys determina-
The responsible Office system man- tion regarding its internal agency
ager having jurisdiction over a system records.
of records may designate in writing an (c) For records maintained in the Of-
Office employee to evaluate and issue fices central systems of records, the
the Offices decision on Privacy Act data subject should contact the appro-
matters relating to either internal, priate Office system manager con-
central, or Governmentwide systems of cerning Privacy Act matters. These
records. regulations will apply to inquiries re-
garding records located in the central
297.104 Types of records. systems of records.
The Office manages three generic (d) For records maintained within
types of personnel records systems: the Offices Governmentwide systems
(a) Internal systems of records are of records, each agency is responsible,

under the Offices physical control and unless specifically excepted by the Of-
are established and maintained by the fice, for responding to initial Privacy
117
297.106 5 CFR Ch. I (1116 Edition)
Act access and amendment requests requesters can contact the particular
from its own current employees. For system manager indicated in the Of-
records in Office Governmentwide sys- fices notices of its systems published
tems, including those in Official Per- in the FEDERAL REGISTER for further
sonnel Folders, Employee Performance assistance in determining if the Office
Folders, and Employee Medical Fold- maintains information pertaining to
ers, the Office is responsible for re- them.
sponding to initial Privacy Act access
and amendment requests from former Subpart BRequest for Access
Federal employees.
(e) The procedures in this part apply 297.201 General provisions.
to all such requests. The procedures in (a) Individuals requesting access to
this part also apply to appeals from an records pertaining to them that are
agency initial determination regarding maintained in a system of records
access to or amendment of records con- should submit a written request to the
tained in the Offices Governmentwide appropriate system manager and state
systems of records. that the request is being made pursu-
(f) The Office follows the procedures ant to the Privacy Act of 1974.
in this part when (b) The Office or agency will require
(1) Processing initial requests regard- proof of identity from a requester. The
ing access to or amendment of records Office or agency reserves the right to
by its own employees and others that determine the adequacy of any such
the Office is maintaining information proof. The general identifying items
on in its systems of records, including the Office will require a requester to
requests from former employees of an provide when a request is made to the
agency whose records properly reside Office are
in an Office Governmentwide system of (1) Full name, signature, and home
records. address;
(2) Processing Privacy Act appeals (2) Social security number (for sys-
regarding access to and amendment of tems of records that include this iden-
records generated by another Federal tifier);
agency, but which are contained in the (3) Current or last place and dates of
Offices Governmentwide systems of Federal employment, when appropriate
records, after an agency has issued the and,
initial decision. (4) Date and place of birth.
(3) Processing initial requests and ap- (c) An individual may be represented
peals concerning access to and amend- by another when requesting access to
ment of records contained in the cen- records.
tral systems of records.
(g) For requests concerning records 297.202 Methods of access.
and material of another agency that (a) The methods for allowing access
are in the custody of the Office, but not to records, when such access has been
under its control or ownership, the Of- granted by the Office or agency, are:
fice reserves the right to either refer (1) Inspection in person in the des-
the request to the agency primarily re- ignated office during the hours speci-
sponsible for the material or to notify fied by the Office or agency; or
the individual of the proper agency (2) Transfer of records at the option
that should be contacted. of the Office or agency to another more
convenient Federal facility.
297.106 Contact point for Privacy Act (b) Generally, Office of Personnel
matters. Management offices will not furnish
To determine what records the Office certified copies of records. When copies
maintains in its system of records, re- are to be furnished, they may be pro-
questers must write to the Assistant vided as determined by the Office and
Director for Workforce Information, may require payment of any fee levied
Personnel Systems and Oversight in accordance with the Offices estab-
Group, Office of Personnel Manage- lished fee schedule.

ment, 1900 E Street, NW., Washington, (c) When the requester seeks to ob-
DC 20415. Using the Offices response, tain original documentation, the Office
118
reserves the right to limit the request 297.206 Fees charged by the Office.
to copies of the original records. Origi-
(a) No fees will be charged for search
nal records should be made available
and review time expended by the Office
for review only in the presence of the
to produce a record, or for making a
system manager or designee. An agen-
photostatic copy of the record, or for
cy should consult with the Office when
having it personally reviewed by the
it receives a request for original docu-
data subject, when a record is retrieved
mentation. Section 2701(a) of title 18 of from a system of records pertaining to
the United States Code makes it a that data subject. Additional copies
crime to conceal, mutilate, obliterate, provided may be charged under the Of-
or destroy any record filed in a public fices established fee schedule.
office, or to attempt to do so.
(b) When the fees chargeable under
297.203 Access by the parent of a this section will amount to more than
minor or by the legal guardian of $25, the requester will be notified and
an individual declared to be incom- payment of fees may be required before
petent. the records are provided.
(c) Remittance should be made by ei-
(a) A parent, legal guardian, or custo-
ther a personal check, bank draft, or a
dian of a minor, upon presentation of
money order that is made payable to
suitable personal identification, may
the U.S. Office of Personnel Manage-
access on behalf of a minor any record
ment and addressed to the appropriate
pertaining to the minor in a system of
system manager.
records maintained by the Office.
(b) A legal guardian, upon presen- 297.207 Denials of access and appeals
tation of documentation establishing with respect to such denials.
guardianship, may access on behalf of
(a) If an access request is denied, the
an individual declared to be incom-
Office or agency response will be in
petent by a court of competent juris-
writing and will include a statement of
diction, any record pertaining to that
the reasons for the denial and the pro-
individual in a system of records main-
cedures available to appeal the denial,
tained by the Office.
including the name, position title, and
(c) Minors are not precluded from ex- address of the Office official respon-
ercising personally those rights pro- sible for the review.
vided them by the Privacy Act. (b) Nothing in this part should be
construed to entitle a data subject the
297.204 Access by the representative
of the data subject. right to access any information com-
piled in reasonable anticipation of a
A record may be disclosed to a rep- civil action or proceeding.
resentative of the individual to whom (c) For denials of access made under
the record pertains after the system this subpart, the following procedures
manager receives written authoriza- apply:
tion from the individual who is the (1) For initial denials made by an
subject of the record. agency, when the record is maintained
in an Office Governmentwide system of
297.205 Access to medical records. records, a request for adminstrative re-
When a request for access involves view should be made only to the Assist-
medical or psychological records that ant Director for Workforce Informa-
the system manager believes requires tion, Personnel Systems and Oversight
special handling, the requester should Group, U.S. Office of Personnel Man-
be advised that the material will be agement, 1900 E Street NW., Wash-
provided only to a physician designated ington, DC 20415.
by the data subject. Upon receipt of the (2) For denials initially made by an
designation and upon verification of Office official, when a record is main-
the physicians identity, the records tained in an internal or central system
will be made available to the physi- of records, a request for administrative
cian, who will have full authority to review should be made to the Informa-
disclose those records to the data sub- tion and Privacy Appeals Counsel, Of-
ject when appropriate. fice of the General Counsel, U.S. Office
119
297.208 5 CFR Ch. I (1116 Edition)
of Personnel Management, 1900 E (2) The identification of the specific

Street NW., Washington, DC 20415. material to be deleted, added, or
(3) Any administrative review deci- changed; and
sion that either partially or fully sup- (3) A statement of the reasons for the
ports the initial decision and denies ac- request, including all available mate-
cess to the material the individual rial substantiating the request.
originally sought should state the re- (d) Requests for amendment of
questers right to seek judicial review records should include the words
of the final administrative decision. PRIVACY ACT AMENDMENT RE-
297.208 Judicial review. QUEST in capital letters on both the
envelope and at the top of the request
Upon receipt of notification that the letter.
denial of access has been upheld on ad- (e) A request for administrative re-
ministrative review, the requester has view of an agency denial to amend a
the right to judicial review of the deci- record in the Offices systems of
sion for up to 2 years from the date on records should be addressed to the As-
which the cause of action arose. Judi- sistant Director for Workforce Infor-
cial review may be sought in the dis-
mation, Personnel Systems and Over-
trict court of the United States in the
sight Group, U.S. Office of Personnel
district in which
Management, 1900 E Street NW., Wash-
(a) The requester resides;
ington, DC 20415.
(b) The requester has his or her prin-
cipal place of business; or (f) A request for administrative re-
(c) The agency records are situated; view of a denial to amend a record by
or it may be sought in the district an Office official should be addressed to
court of the District of Columbia. the Information and Privacy Appeals
Counsel, Office of the General Counsel,
U.S. Office of Personnel Management,
Subpart CAmendment of 1900 E Street NW., Washington, DC
Records 20415.
297.301 General provisions. (g) The burden of proof dem-
onstrating the appropriateness of the
(a) Individuals may request, in writ- requested amendment rests with the
ing, the amendment of their records requester; and, the requester must pro-
maintained in an Office system of vide relevant and convincing evidence
records by contacting the appropriate in support of the request.
system manager. The Office or agency
will require proof of identity from a re- 297.302 Time limits.
quester. The Office or agency reserves
the right to determine the adequacy of The system manager should acknowl-
any such proof. The general identifying edge receipt of an amendment request
items the Office will require a re- within 10 working days and issue a de-
quester to provide when a request is termination as soon as practicable.
made to the Office are This timeframe begins when the re-
(1) Full name, signature, and home quest is received by the proper Office
address; or agency official.
(2) Social security number (for sys-
tems of records that include this iden- 297.303 Applicability of amendment
provisions.
tifier);
(3) Current or last place and dates of (a) The amendment procedures are
Federal employment, when appro- not intended to allow a challenge to
priate; and material that records an event that ac-
(4) Date and place of birth. tually occurred nor are they designed
(b) An individual may be represented to permit a collateral attack upon that
by another party when requesting which has been or could have been the
amendment of records. subject of a judicial, quasi-judicial, or
(c) A request for amendment should administrative proceeding. The amend-
include the following: ment procedures are also not designed

(1) The precise identification of the to change opinions in records per-
records to be amended; taining to the individual.
120
(b) The amendment procedures apply letters on the envelope and at the top
to situations when an occurrence that of the letter of appeal.
is documented was challenged through (b) The reviewing official should
an established judicial, quasi-judicial, complete the review and make a final
or administrative procedure and found determination in writing no later than
to be inaccurately described; when the 30 working days from the date on
document is not identical to the indi- which the appeal is received. When cir-
viduals copy; or when the document is cumstances warrant, this timeframe
not created in accordance with the ap- may be extended.
plicable recordkeeping requirements. (c) If the Office grants the appeal, it
(For example, the amendment provi- will take the necessary steps either to
sions are not designed to allow a chal- amend the record itself or to require
lenge to the merits of an agency ad- the originating agency to amend the
verse action that is documented in an record. When appropriate and possible,
individuals Official Personnel Folder.) prior recipients of the record should be
notified of the Offices action.
297.304 Approval of requests to (d) The Office reserves the right to
amend records. hold in abeyance any Privacy Act ap-
(a) If the system manager determines peal concerning a record when an indi-
that amendment of a record is appro- vidual is involved in challenging an ac-
priate, the system manager will take tion involving that record in another
the necessary steps to have the nec- administrative, judicial, or quasi-judi-
essary changes made and will see that cial forum. At the conclusion of such a
the individual receives a copy of the challenge, the individual can resubmit
amended record. the appeal.
(b) When practicable and appropriate, (e) If the Office denies the appeal, it
the system manager will advise all will include in the decision letter noti-
prior recipients of the fact that an fication of the appellants right to judi-
amendment of a record has been made. cial review.
297.305 Denial of requests to amend 297.307 Statement of disagreement.

records. (a) Upon receipt of a final adminis-
(a) If the Office or agency system trative determination denying a re-
manager decides not to amend the quest to amend a record, the requester
record in the manner sought, the re- may file a concise statement of dis-
quester should be notified in writing of agreement. Such a statement should be
the reasons for the denial. filed with the appropriate system man-
(b) The decision letter should also in- ager and should include the reasons
clude the requesters right to appeal why the requester believes the decision
the denial and the procedures for ap- to be incorrect.
pealing the denial to the appropriate (b) The statement of disagreement
official. should be maintained with the record
to be amended and any disclosure of
297.306 Appeal of a denial of a re- the record must include a copy of the
quest to amend a record. statement of disagreement.
(a) An individual who disagrees with (c) When practicable and appropriate,
an initial denial to amend a record the system manager should provide a
may file a written appeal of that denial copy of the statement of disagreement
to the appropriate official. In submit- to any individual or agency to whom
ting an appeal, the individual should the record was previously disclosed as
provide a copy of the original request noted by the disclosure accounting.
for amendment, a copy of the initial
denial decision, and a statement of the 297.308 Judicial review.
specific reasons why the initial denial Upon receipt of notification that the
is believed to be in error. Any appeal denial to amend a record has been
should be submitted to the official des- upheld on administrative review, the
ignated in the initial decision letter. requester has the right to judicial re-
The appeal should include the words view of the decision for up to 2 years
PRIVACY ACT APPEAL in capital from the date the cause of action arose.
121
297.401 5 CFR Ch. I (1116 Edition)
Judicial review may be sought in the mine whether the record has such
district court of the United States in value.
the district in which (g) To another agency or instrumen-
(a) The requester resides; tality of any governmental jurisdiction
(b) The requester has his or her prin- within or under the control of the
cipal place of business; or United States for a civil or criminal
(c) The agency records are situated; law enforcement activity if the activ-
or it may be sought in the district ity is authorized by law, and if the
court of the District of Columbia. head of the agency or instrumentality
or his designated representative has
Subpart DDisclosure of Records made a written request to the Office or
agency that maintains the record
297.401 Conditions of disclosure. specifying the particular portion de-
An official or employee of the Office sired and the law enforcement activity
or agency should not disclose a record for which the record is sought.
retrieved from a Governmentwide sys- (h) To a person showing compelling
tem of records to any person, another circumstances affecting the health and
agency, or other entity without the ex- safety of an individual, not necessarily
press written consent of the subject in- the individual to whom the record per-
dividual unless disclosure is tains. Upon such disclosure, a notifica-
(a) To officers or employees of the Of- tion should be sent to the last known
fice who have a need for the informa- address of the subject individual.
tion in the performance of their duties. (i) To the Congress or to a Congres-
(b) Required by the provisions of the sional committee, subcommittee, or
Freedom of Information Act. joint committee to the extent that the
(c) For a routine use as published in subject matter falls within its estab-
the FEDERAL REGISTER. lished jurisdiction.
(d) To the Bureau of the Census for (j) To the Comptroller General or any
uses pursuant to title 13 of the United authorized representatives of the
States Code. Comptroller General in the course of
(e)(1) To a recipient who has provided the performance of the duties of the
the agency with advance adequate General Accounting Office.
written assurance that the record will (k) Pursuant to the order of a court
be used solely as a statistical research of competent jurisdiction.
or reporting record. The record will be (l) To a consumer reporting agency in
transferred in a form that is not indi- accordance with section 3711 (f) of title
vidually identifiable. The written 31 of the United States Code.
statement should include as a min-
imum: 297.402 Disclosure pursuant to a
(i) A statement of the purpose for re- compulsory legal process served on
questing the records; and the Office.
(ii) Certification that the records will For purposes of this section, the Of-
be used only for statistical purposes. fice considers that a subpoena signed
(2) These written statements should by a judge is equivalent to a court
be maintained as records. In addition order.
to deleting personal identifying infor- (a) The Office may disclose, without
mation from records released for sta- prior consent of the data subject, speci-
tistical purposes, the system manager fied information from a system of
will reasonably ensure that the iden- records whenever such disclosure is
tity of the individual cannot be de- pursuant to an order signed by the ap-
duced by combining various statistical propriate official of a court of com-
records. petent jurisdiction or quasi-judicial
(f) To the National Archives of the agency. In this subpart, a court of com-
United States as a record that has suf- petent jurisdiction includes the judi-
ficient historical or other value to war- cial system of a state, territory, or pos-
rant its continued preservation by the session of the United States.
United States Government, or for eval- (b) Notice of the order will be pro-
uation by the Archivist of the United vided to the data subject by the Office
States or his or her designee to deter- as soon as practicable after service of
122
the order. The notice should be mailed that are acquired as part of the em-
to the last known address of the indi- ployees official duties, the employee
vidual and state the name and number shall not provide the information with-
of the case or proceeding, and the na- out the prior approval of the appro-
ture of the information sought. priate Office official.
(c) Before complying or refusing to (h) If it is determined that the infor-
comply with the order, an official with mation should not be provided, the in-
authority to disclose records under this dividual ordered or subpoenaed to do so
subpart should consult legal counsel to should respectfully decline to comply
ensure that the response is appro- with the demand based on the instruc-
priate.
tions from the appropriate Office offi-
(d) Before responding to the order or
cial.
subpoena signed by a judge, an official
with authority to disclose records (i) Notice of the issuance of the ex
under this subpart in consulting with parte order or subpoena signed by a
legal counsel will ensure that judge is not required if the system of
(1) The requested material is relevant records has been exempted from the no-
to the subject matter of the related ju- tice requirement of 5 U.S.C. 552a(e)(8)
dicial or administrative proceeding; pursuant to 5 U.S.C. 552a(j) by a Notice
(2) Motion is made to quash or mod- of Exemption published in the FEDERAL
ify an order that is unreasonable or op- REGISTER.
pressive:
(3) Motion is made for a protective FR 56732, Nov. 30, 1992]
order when necessary to restrict the
use or disclosure of any information 297.403 Accounting of disclosure.
furnished for purposes other than those
of the involved proceeding; or (a) The Office or agency will main-
(4) Request is made for an extension tain a record of disclosures in cases
of time allowed for response, if nec- where records about the individual are
essary. disclosed from an Office system of
(e) If an order or subpoena signed by records except
a judge for production of documents (1) When the disclosure is made pur-
also requests appearance of an Office suant to the Freedom of Information
employee, the response should be to Act, as amended (5 U.S.C. 552); or
furnish certified copies of the appro- (2) When the disclosure is made to
priate records. In those situations those officers and employees of the Of-
where the subpoena is not signed by a fice or agency who have a need for the
judge, the Office will return the docu- record in the performance of their du-
ment to the sender and indicate that ties.
no action will be taken to provide (b) This accounting of the disclosures
records until the subpoena is signed by will be retained for at least 5 years or
a judge.
for the life of the record, whichever is
(f) If oral testimony is requested by
longer, and will contain the following
the order or subpoena signed by a
judge, an explanation that sets forth information:
the testimony desired must be fur- (1) A brief description of the record
nished to the Office system manager. disclosed;
The individual who has been ordered or (2) The date, nature, and purpose for
subpoenaed to testify should consult the disclosure; and
with counsel to determine the matters (3) The name and address of the pur-
about which the individual may prop- pose, agency, or other entity to whom
erly testify. the disclosure is made.
(g) In all situations concerning an (c) Except for the accounting of dis-
order, subpoena signed by a judge, or closure made to agencies, individuals,
other demand for an employee of the or entities in law enforcement activi-
Office to produce any material or testi- ties or disclosures made from the Of-
mony concerning the records that are fices exempt systems of records, the
subject to the order, that are contained accounting of disclosures will be made
in the Offices systems of records, and
123
297.501 5 CFR Ch. I (1116 Edition)
available to the data subject upon re- (iii) Inspector General investigations
quest in accordance with the access may contain information obtained
procedures of this part. from another system or Federal agency
that relates to providing protective
[53 FR 1998, Jan. 26, 1988. Redesignated at 57
FR 56732, Nov. 30, 1992]
services to the President of the United
States or other individuals pursuant to
18 U.S.C. 3056. Application of exemp-
Subpart EExempt Records tion (k)(3) may be necessary to pre-
clude the data subjects access to and
297.501 Exemptions.
amendment of such records under 5
(a) Several of the Offices internal, U.S.C. 552a(d).
central, and Governmentwide systems (iv) Inspector General case files may
of records contain information for contain information that, by statute,
which exemptions appearing at 5 U.S.C. is required to be maintained and used
552a(k) (1), (2), (3), (5), and (6) may be solely as a statistical record. Applica-
claimed. The systems of records for tion of exemption (k)(4) may be nec-
which the exemptions are claimed, the essary to ensure compliance with such
specific exemptions determined to be a statutory mandate.
necessary and proper with respect to (v) All information about individuals
these systems of records, the records in these records that meets the criteria
exempted, the provisions of the act stated in 5 U.S.C. 552a(k)(5) is exempt
from which they are exempted, and the from the requirements of 5 U.S.C.
justifications for the exemptions are 552a(c)(3) and (d). This exemption is
set forth below. claimed because this system contains
(b) Specific exemptions(1) Inspector investigatory material that if disclosed
General Investigations Case File Records may reveal the identity of a source
(OPM/CENTRAL4). All information in who furnished information to the Gov-
these records that meets the criteria ernment under an express promise that
stated in 5 U.S.C. 552a(k) (1), (2), (3), (4), the sources identity would be held in
(5), (6), and (7) is exempt from the re- confidence or, prior to September 27,
quirements of 5 U.S.C. 552a(c)(3) and 1975, under an implied promise. The ap-
(d). These provisions of the Privacy Act plication of exemption (k)(5) will be re-
relate to making accountings of disclo- quired to honor promises of confiden-
sures available to the data subject and tiality should the data subject request
access to and amendment of records. access to or amendment of the records,
The specific applicability of the exemp- or access to the accounting of disclo-
tions to this system and the reasons for sures of the record.
the exemptions are as follows: (vi) All information in these records
(i) Inspector General investigations that meets the criteria stated in 5
may contain properly classified infor- U.S.C. 552a(k)(6) is exempt from the re-
mation that pertains to national de- quirements of 5 U.S.C. 552a(d) relating
fense and foreign policy obtained from to access to and amendment of records
other systems or another Federal agen- by the data subject. This exemption is
cy. Application of exemption (k)(1) claimed because portions of a case file
may be necessary to preclude the data record may relate to testing and exam-
subjects access to and amendment of ining material used solely to determine
such classified information under 5 individual qualifications for appoint-
U.S.C. 552a(d). ment or promotion in the Federal serv-
(ii) Inspector General investigations ice. Access to or amendment of this in-
may contain investigatory material formation by the data subject would
compiled for law enforcement purposes compromise the objectivity and fair-
other than material within the scope of ness of the testing or examining proc-
5 U.S.C. 552a(j)(2); e.g., investigations ess.
into the administration of the merit (vii) Inspector General case files may
system. Application of exemption (k)(2) contain evaluation material used to de-
may be necessary to preclude the data termine potential for promotion in the
subjects access to or amendment of armed services. Application of exemp-

such records under 5 U.S.C. 552(a)(3) tion (k)(7) may be necessary, but only
and (d). to the extent that the disclosure of the
124
data would reveal the identity of a porated into a litigation or claim case
source who furnished information to file, the appropriate exemption (5
the Government under an express U.S.C. 552a(k)(1), (2), (3), (4), (5), (6), or
promise that the identity of the source (7)) shall also apply to the material as
would be held in confidence, or, prior it appears in this system. The exemp-
to September 27, 1975, under an implied tions will be only from those provisions
promise that the identity of the source of the Act that were claimed for the
would be held in confidence. systems from which the records origi-
(2) Administrative Law Judge Applicant nated.
Records (OPM/CENTRAL6). (i) All in- (ii) During the course of litigation or
formation about individuals in these claims cases, it may be necessary to
records that meets the criteria stated conduct investigations to develop in-
in 5 U.S.C. 552a(k)(5) is exempt from formation and evidence relevant to the
the requirement of 5 U.S.C. 552(c)(3) case. These investigative records may
and (d). The exemptions are claimed include material meeting the criteria
because this system contains investiga- stated in 5 U.S.C. 552a(k)(1), (2), (3), (4),
tory material compiled solely for de- (5), (6), and (7). Such material is ex-
termining suitability, eligibility, and empt from the requirement of 5 U.S.C.
qualifications for Federal civilian em- 552a(c)(3) and (d). These provisions of
ployment. To the extent that the dis- the Act relate to making accounting of
closure of such material would reveal disclosures available to the data sub-
the identity of a source who furnished ject and access to and amendment of
information to the Government under records. The specific applicability of
an express promise that the identity of the exemptions to this system and the
the source would be held in confidence reasons for the exemptions are:
or, prior to September 27, 1975, under
(A) Such investigations may contain
an implied promise that the identity of
properly classified information that
the source would be held in confidence,
pertains to national defense and for-
the application of exemption (k)(5) will
eign policy obtained from another Fed-
be required to honor promises of
eral agency. Application of exemption
confidentialty should the data subject
(k)(1) may be necessary to preclude the
request access to the accounting of dis-
data subjects access to and amend-
closures of the record, or access to or
amendment of the record. ment of suh classified information
(ii) All information in these records under 5 U.S.C 552a(d).
that meets the criteria stated in 5 (B) Such investigations may contain
U.S.C. 552a(k)(6) is exempt from the re- investigatory material compiled for
quirements of 5 U.S.C. 552a(d), relating law enforcement purposes othe than
to access to and amendment of the material within the scope of 5 U.S.C.
records by the data subject. This ex- 552a(j)(2), e.g., administration of the
emption is claimed because portions of merit system, obtained from another
this system relate to testing and exam- Federal agency. All information about
ining materials used solely to deter- individuals in these records that meets
mine individual qualifications for ap- the criteria of 5 U.S.C 552a(k)(2) is ex-
pointment or promotion in the Federal empt from the requirements of 5 U.S.C.
service. Access to or amendment of 552a(c)(3) and (d). Application of ex-
this information by the data subject emption (k)(2) may be necessary to pre-
would compromise the objectivity and clude the data subjects access to or
fairness of the testing or examing proc- amendment of those records.
ess. (C) Such investigations may contain
(3) Litigation and Claims Records information obtained from another
(OPM/CENTRAL7). (i) When litigation agency that relates to providing pro-
or claim cases occur, information from tective services to the President of the
other existing systems of records may United States or other individuals pur-
be incorporated into the case file. This suant to 18 U.S.C. 3056. All information
information may be material for which about individuals in these records that
exemptions have been claimed by the meets the criteria of 5 U.S.C. 552a(k)(3)
Office in this section. To the extent is exempt from the requirements of 5
that such exempt material is incor- U.S.C. 552a(d), relating to access to or
125
297.501 5 CFR Ch. I (1116 Edition)
amendment of records by the data sub- data would reveal the identity of a
ject. Application of exemption (k)(3) source who furnished information to
may be necessary to preclude the data the Government under an express
subjects access to and amendment of promise that the identity of the source
such records. would be held in confidence, or, prior
(D) Such investigations may contain to September 27, 1975, under an implied
information that, by statute, is re- promise that the identity of the source
quired to be maintained and used sole- would be held in confidence.
ly as a statistical record. Application (4) Privacy Act/Freedom of Information
of exemption (k)(4) may be necessary Case Records (OPM/CENTRAL8). In this
to ensure compliance with such a stat- subpart, the Office has claimed exemp-
utory mandate. tions for its other systems of records
(E) All information about individuals where it felt such exemptions are ap-
in these records that meets the criteria propriate and necessary. These exemp-
stated in 5 U.S.C. 552a(k)(5) is exempt tions are claimed under 5 U.S.C. 552a(k)
from the requirements of 5 U.S.C. 552a (1), (2), (3), (4), (5), (6) and (7). During
(c)(3) and (d). These exemptions are the processing of a Privacy Act/Free-
claimed because this system contains dom of Information Act request (which
investigatory material compiled solely may include access requests, amend-
for determining suitability, eligibility, ment requests, and requests for review
and qualifications for Federal civilian for initial denials of such requests) ex-
employment. To the extent that the empt materials from those other sys-
disclosure of such material would re- tems may in turn become part of the
veal the identity of a source who fur- case record in this system. To the ex-
nished information to the Government tent that copies of exempt records from
under an express promise that the iden- those other systems are entered into
tity of the source would be held in con- this system, the Office hereby claims
fidence, or, prior to September 27, 1975, the same exemptions for the records
under an implied promise that the from those other systems that are en-
identity of the source would be held in tered into this system, as claimed for
confidence, the application of exemp- the original primary system of which
tion (k)(5) will be required to honor they are a part.
such a promise should the data subject (5) Personnel Investigations Records
request access to the accounting of dis- (OPM/CENTRAL9). All information in
closure, or access to or amendment of these records that meets the criteria
the record, that would reveal the iden- stated in 5 U.S.C. 552a(k) (1), (2), (3), (4),
tity of a confidential source. (5), (6), and (7) is exempt from the re-
(F) All information in these records quirements of 5 U.S.C. 552a (c)(3) and
that meets the criteria stated in 5 (d). These provisions of the Privacy Act
U.S.C. 552a(k)(6) is exempt from the re- relate to making accountings of disclo-
quirements of 5 U.S.C. 552a(d), relating sures available to the data subject and
to access to and amendment of the access to and amendment of records.
records by the data subject. This ex- The specific applicability of the exemp-
emption is claimed because portions of tions to this system and the reasons for
this system relate to testing or exam- the exemptions are as follows:
ining materials used solely to deter- (i) Personnel investigations may con-
mine individual qualifications for ap- tain properly classified information
pointment or promotion in the Federal which pertains to national defense and
service. Access to or amendment by the foreign policy obtained from another
data subject of this information would Federal agency. Application of exemp-
compromise the objectivity and fair- tion (k)(1) may be necessary to pre-
ness of the testing or examining proc- clude the data subjects access to and
ess. amendment of such classified informa-
(G) Such investigations may contain tion under 5 U.S.C. 552a(d).
evaluation material used to determine (ii) Personnel investigations may
potential for promotion in the armed contain investigatory material com-
services. Application of exemption piled for law enforcement purposes

(k)(7) may be necessary, but only to other than material within the scope of
the extent that the disclosure of the 5 U.S.C. 552a(j)(2); e.g., investigations
126
into the administration of the merit mation by the data subject would com-
system. Application of exemption (k)(2) promise the objectivity and fairness of
may be necessary to preclude the data the testing or examining process.
subjects access to or amended of such (vii) Personnel Investigations may
records under 5 U.S.C. 552a (c)(3) and contain evaluation material used to de-
(d). termine potential for promotion in the
(iii) Personnel investigations may armed services. Application of exemp-
contain information obtained from an- tion (k)(7) may be necessary, but only
other Federal agency that relates to to the extent that the disclosure of the
providing protective services to the data would reveal the identity of a
President of the United States or other source who furnished information to
individuals pursuant to 18 U.S.C. 3056. the Government under an express
Application of exemption (k)(3) may be
promise that the identity of the source
necessary to preclude the data sub-
would be held in confidence, or, prior
jects access to and amendment of such
to September 27, 1975, under an implied
records under 5 U.S.C. 552a(d).
promise that the identity of the source
(iv) Personnel investigations may
contain information that, by statute, would be held in confidence.
is required to be maintained and used (6) Presidential Management Fellows
solely as a statistical record. Applica- Program Records (OPM/CENTRAL11).
tion of exemption (k)(4) may be nec- All information in these records that
essary to ensure compliance with such meets the criteria stated in 5 U.S.C.
a statutory mandate. 552a(k)(6) is exempt from the require-
(v) All information about individuals ments of 5 U.S.C. 552a(d), relating to
in these records that meets the criteria access to and amendment of records by
stated in 5 U.S.C. 552a(k)(5) is exempt the data subject. This exemption is
from the requirements of 5 U.S.C. 552a claimed because portions of this sys-
(c)(3) and (d). These exemptions are tem relate to testing or examining ma-
claimed because this system contains terials used solely to determine indi-
investigatory material compiled solely vidual qualifications for appointment
for determining suitability, eligibility, or promotion in the Federal service
and qualifications for Federal civilian and access to or amendment of this in-
employment. To the extent that the formation by the data subject would
disclosure of material would reveal the compromise the objectivity and fair-
identity of a source who furnished in- ness of the testing or examining proc-
formation to the Government under an ess.
express promise that the identity of (7) Recruiting, Examining, and Place-
the source would be held in confidence, ment Records (OPM/GOVT5). (i) All in-
or, prior to September 27, 1975, under formation about individuals in these
an implied promise that the identity of records that meets the criteria stated
the source would be held in confidence,
in 5 U.S.C. 552a(k)(5) is exempt from
the applicability of exemption (k)(5)
the requirements of 5 U.S.C. 552a(c)(3)
will be required to honor promises of
and (d). These provisions of the Privacy
confidentiality should the data subject
request access to or amendment of the Act relate to making accountings of
record, or access to the accounting of disclosures available to the data sub-
disclosures of the record. ject and access to and amendment of
(vi) All information in these records records. These exemptions are claimed
that meets the criteria stated in 5 because this system contains investiga-
U.S.C. 552a(k)(6) is exempt from the re- tive material compiled solely for deter-
quirements of 5 U.S.C. 552a(d), relating mining the appropriateness of a re-
to access to and amendment of records quest for approval of an objection to an
by the data subject. This exemption is eligibles qualification for employment
claimed because portions of this sys- in the Federal service. To the extent
tem relate to testing or examining ma- that the disclosure of such material
terials used solely to determine indi- would reveal the identity of a source
vidual qualifications for appointment who furnished information to the Gov-

or promotion in the Federal service. ernment under an express promise that
Access to or amendment of this infor- the identity of the source would be
127
held in confidence, or prior to Sep- (c) The Office also reserves the right
tember 27, 1975, under an implied prom- to assert exemptions for records re-
ise that the identity of the source ceived from another agency that could
would be held in confidence, the appli- be properly claimed by that agency in
cation of exemption (k)(5) will be re- responding to a request. The Office
quired to honor promises of confiden- may refuse access to information com-
tiality should the data subject request piled in reasonable anticipation of a
access to the accounting of disclosures civil action or proceeding.
of the record, or access to or amend- [53 FR 1998, Jan. 26, 1988, as amended at 57
ment of the record. FR 20956, May 18, 1992; 70 FR 28779, May 19,
(ii) All information in these records 2005]
that meets the criteria stated in 5
U.S.C. 552a(K)(6) is exempt from the re- PART 300EMPLOYMENT
quirements of 5 U.S.C. 552a(d), relating (GENERAL)
to access to an amendment of records
by the subject. This exemption is Subpart AEmployment Practices
claimed because portions of this sys-
tem relate to testing or examining ma- Sec.
300.101 Purpose.
terials used solely to determine indi- 300.102 Policy.
vidual qualifications for appointment 300.103 Basic requirements.
or promotion in the Federal service 300.104 Appeals, grievances and complaints.
and access to or amendment of this in-
formation by the data subject would Subpart BExaminations and Related
compromise the objectivity and fair- Subjects
ness of the testing or examining proc- 300.201 Examinations.
ess.
(8) Personnel Research and Test Valida- Subpart CDetails of Employees
tion Records (OPM/GOVT6). (i) All in-
formation in these records that meets 300.301 Authority.
the criteria stated in 5 U.S.C. 552a(k)(6) Subpart DUse of Commercial Recruiting
is exempt from the requirements of 5 Firms and Nonprofit Employment Services
U.S.C. 552a(d), relating to access to and
amendment of the records by the data 300.401 Definitions.
subject. This exemption is claimed be- 300.402 Coverage.
cause portions of this system relate to 300.403 When commercial recruiting firms
and nonprofit employment services may
testing or examining materials used be used.
solely to determine individual quali- 300.404 Use of fee-charging firms.
fications for appointment or promotion 300.405 Requirement for contract.
in the Federal service. Access to or 300.406 Agency responsibilities.
amendment of this information by the 300.407 Documentation.
data subject would compromise the ob- 300.408 Corrective action.
jectivity and fairness of the testing or
examining process. Subpart EUse of Private Sector
Temporaries
(ii) All information in these records
that meets the criteria stated in 5 300.501 Definitions.
U.S.C. 552a(k)(4) is exempt from the re- 300.502 Coverage.
quirements of 5 U.S.C. 552a(d), relating 300.503 Conditions for using private sector
to access to or amendment of the temporaries.
300.504 Prohibition on employer-employee
records by the data subject. This ex- relationship.
emption is claimed because portions of 300.505 Relationship of civil service proce-
this system relate to records required dures.
by statute to be maintained and used 300.506 Requirements of procurement.
solely for statistical purposes. Access 300.507 Documentation and oversight.
to or amendment of this information
by the data subject would compromise Subpart FTime-in-Grade Restrictions
the confidentiality of these records and 300.601 Purpose.

their usefulness for statistical research 300.602 Definitions.
purposes. 300.603 Coverage.
128
300.604 Restrictions. fitness of candidates for the jobs to be
300.605 Creditable service. filled;
300.606 Agency authority. (b) Result in selection from among
the best qualified candidates;
Subpart GStatutory Bar to Appointment
(c) Be developed and used without
of Persons Who Fail To Register Under
discrimination on the basis of race,
Selective Service Law
color, religion, sex (including preg-
300.701 Statutory requirement. nancy and gender identity), national
300.702 Coverage. origin, age (as defined by the Age Dis-
300.703 Definitions. crimination in Employment Act of
300.704 Considering individuals for appoint- 1967, as amended), disability, genetic
ment. information (including family medical
300.705 Agency action following statement.
300.706 Office of Personnel Management ad-
history), marital status, political af-
judication. filiation, sexual orientation, labor or-
300.707 Termination of employment. ganization affiliation or nonaffiliation,
status as a parent, or any other non-
AUTHORITY: 5 U.S.C. 552, 2301, 2302, 3301, and
3302; E.O. 10577, 3 CFR 19541958 Comp., page
merit-based factor, or retaliation for
218, unless otherwise noted. exercising rights with respect to the
Secs. 300.101 through 300.104 also issued categories enumerated above, where re-
under 5 U.S.C. 7201, 7204, and 7701; E.O. 11478, taliation rights are available.
3 CFR 19661970 Comp., page 803, E.O. 13087; (d) Insure to the candidate oppor-
and E.O. 13152. tunity for appeal or administrative re-
Secs. 300.401 through 300.408 also issued view, as appropriate.
under 5 U.S.C. 1302(c).
Secs. 300.501 through 300.507 also issued [40 FR 15379, Apr. 7, 1975, as amended at 79
under 5 U.S.C. 1103(a)(5). FR 43922, July 29, 2014]
Sec. 300.603 also issued under 5 U.S.C. 1104.
300.103 Basic requirements.
Subpart AEmployment Practices (a) Job analysis. Each employment
practice of the Federal Government
300.101 Purpose. generally, and of individual agencies,
The purpose of this subpart is to es- shall be based on a job analysis to iden-
tablish principles to govern, as nearly tify:
as is administratively feasible and (1) The basic duties and responsibil-
practical, the employment practices of ities;
the Federal Government generally, and (2) The knowledges, skills, and abili-
of individual agencies, that affect the ties required to perform the duties and
recruitment, measurement, ranking, responsibilities; and
and selection of individuals for initial (3) The factors that are important in
appointment and competitive pro- evaluating candidates. The job analysis
motion in the competitive service or in may cover a single position or group of
positions in the government of the Dis- positions, or an occupation or group of
trict of Columbia required to be filled occupations, having common charac-
in the same manner that positions in teristics.
the competitive service are filled. For (b) Relevance. (1) There shall be a ra-
the purpose of this subpart, the term tional relationship between perform-
employment practices includes the ance in the position to be filled (or in
development and use of examinations, the target position in the case of an
qualification standards, tests, and entry position) and the employment
other measurement instruments. practice used. The demonstration of ra-
tional relationship shall include a
[36 FR 15447, Aug. 14, 1971] showing that the employment practice
was professionally developed. A min-
300.102 Policy. imum educational requirement may
This subpart is directed to implemen- not be established except as authorized
tation of the policy that competitive under section 3308 of title 5, United
employment practices: States Code.
(a) Be practical in character and as (2) In the case of an entry position

far as possible relate to matters that the required relevance may be based
fairly test the relative capacity and upon the target position when
129
300.104 5 CFR Ch. I (1116 Edition)
(i) The entry position is a training believes that an employment practice

position or the first of a progressive se- that was applied to him or her and that
ries of established training and devel- is administered by the agency discrimi-
opment positions leading to a target nates against him or her on the basis of
position at a higher level; and race, color, religion, sex (including
(ii) New employees, within a reason- pregnancy and gender identity), na-
able period of time and in the great tional origin, age (as defined by the
majority of cases, can expect to Age Discrimination in Employment
progress to a target position at a high- Act of 1967, as amended), disability, ge-
er level. netic information (including family
(c) Equal employment opportunity and medical history), or retaliation for ex-
prohibited forms of discrimination. An ercising rights with respect to the cat-
employment practice must not dis- egories enumerated above, where retal-
criminate on the basis of race, color, iation rights are available. The com-
religion, sex (including pregnancy and plaint must be filed and processed in
gender identity), national origin, age accordance with the agency EEO proce-
(as defined by the Age Discrimination dures, as appropriate.
in Employment Act of 1967, as amend- (2) Except as provided in paragraph
ed), disability, genetic information (in- (c)(1) of this section, an employee may
cluding family medical history), mar- file a grievance with an agency when
ital status, political affiliation, sexual he or she believes that an employment
orientation, labor organization affili- practice which was applied to him or
ation or nonaffiliation, status as a par- her and which is administered or re-
ent, or any other non-merit-based fac- quired by the agency violates a basic
tor, or retaliation for exercising rights requirement in 300.103. The grievance
with respect to the categories enumer- shall be filed and processed under an
ated above, where retaliation rights agency grievance system, if applicable,
are available. Employee selection pro- or a negotiated grievance system as ap-
cedures shall meet the standards estab- plicable.
lished by the Uniform Guidelines on [40 FR 15380, Apr. 7, 1975, as amended at 41
Employee Selection Procedures, FR 51579, Nov. 23, 1976; 44 FR 48951, Aug. 21,
where applicable. 1979; 60 FR 3057, Jan. 13, 1995; 60 FR 47040,
Sept. 11, 1995; 79 FR 43922, July 29, 2014]
FR 38310, Aug. 25, 1978; 79 FR 43922, July 29,
2014] Subpart BExaminations and
Related Subjects
300.104 Appeals, grievances and com-
plaints. 300.201 Examinations.
(a) Employment practices. A candidate (a) The Office makes available infor-
who believes that an employment prac- mation that will assist members of the
tice which was applied to him or her by public in understanding the purpose of,
the Office of Personnel Management and preparing for, civil service exami-
violates a basic requirement in 300.103 nations. This includes the types of
is entitled to appeal to the Merit Sys- questions and the categories of knowl-
tems Protection Board under the provi- edge or skill pertinent to a particular
sions of its regulations. examination. The Office does not re-
(b) Examination ratings. A candidate lease the following: (1) Testing and ex-
may file an appeal with the Office from amination materials used solely to de-
his or her examination rating or the re- termine individual qualifications, and
jection of his or her application, except (2) test material, including test plans,
that, where the Office has delegated ex- item analysis data, criterion instru-
amining authority to an agency, the ments, and other material the disclo-
candidate should appeal directly to sure of which would compromise the
that agency. The appeal and supporting objectivity of the testing process.
documents shall be filed with the agen- (b) The Office maintains control over
cy office that determined the rating. the security and release of testing and
(c) Complaints and grievances to an examination materials which it has de-

agency. (1) A candidate may file a com- veloped and made available to agencies
plaint with an agency when he or she for initial competitive appointment or
130
inservice use unless the materials were a delegated agreement between the
developed specifically for an agency agency and OPM.
through a reimbursable contractual
agreement. These testing and examina- FR 72066, Dec. 1, 2005]
tion materials include, and are subject
to the same controls as, those de-
scribed in paragraphs (a)(1) and (a)(2) of Subpart DUse of Commercial
this section. Recruiting Firms and Nonprofit
(c) Each employee entrusted with Employment Services
test material has a positive duty to
protect the confidentiality of that ma- SOURCE: 53 FR 51222, Dec. 21, 1988, unless
terial and to assure release only as re- otherwise noted.
quired to conduct an examination au-
thorized by the Office. 300.401 Definitions.
(d) An applicant may review his or For purposes of this subpart:
her own answers in a written test, but (a) A commercial recruiting firm is a
only in the presence of an employee of profit-making entity which, by con-
the Office or, for the convenience of tract, supplies individual candidates
the Office and requester, in the pres- for consideration for specific Federal
ence of an employee of another agency vacancies, in accordance with the re-
designated by OPM. The applicant may quirements set by the Federal agency.
not review a test booklet in connection (b) A nonprofit employment service is
with this review. one legally established as nonprofit
(e) The Office will release informa- under State law. It may be operated,
tion concerning the results of examina- for example, by professional societies,
tions only to the individual concerned, organizations of college graduates, so-
or to parties explicitly designated by cial agencies, or a State or local gov-
the individual. ernment. Federal agencies may not,
(f) The Office will not reveal the however, use a nonprofit employment
names of applicants for civil service service sponsored by a partisan polit-
positions or eligibles on civil service ical organization. By contract, a non-
registers, certificates, employment profit employment service supplies in-
lists, or other lists of eligibles, or their dividual candidates for consideration
ratings or relative standings. for specific Federal vacancies, in ac-
[50 FR 3312, Jan. 24, 1985, as amended at 60 cordance with the requirements set by
FR 3057, Jan. 13, 1995] the Federal agency.
300.402 Coverage.
Subpart CDetails of Employees
This part applies to filling positions
300.301 Authority. in the competitive service; positions in
(a) In accordance with 5 U.S.C. 3341, the expected service under Schedules
an agency may detail an employee in A, B, and C; and positions in the Senior
the competitive service to a position in Executive Service.
either the competitive or excepted [57 FR 10124, Mar. 24, 1992]
service.
(b) In accordance with 5 U.S.C. 3341, 300.403 When commercial recruiting
an agency may detail an employee in firms and nonprofit employment
the excepted service to a position in services may be used.
the excepted service and may also de- An agency may use a commercial re-
tail an excepted service employee serv- cruiting firm and/or a nonprofit em-
ing under Schedule A, Schedule B, or a ployment service in recruiting for va-
Veterans Recruitment Appointment, to cancies when:
a position in the competitive service. (a) The agency head or designee de-
(c) Any other detail of an employee termines that such use is likely to pro-
in the excepted service to a position in vide well-qualified candidates who
the competitive service may be made would otherwise not be available or

only with the prior approval of the Of- that well-qualified candidates are in
fice of Personnel Management or under short supply;
131
300.404 5 CFR Ch. I (1116 Edition)
(b) The agency has provided vacancy the Federal Government or a specific
notices to appropriate State Employ- Federal agency; and
ment Service and OPM offices; and (4) Recruit and refer candidates in ac-
(c) The agency continues its own re- cordance with applicable merit prin-
cruiting efforts. ciples and equal opportunity laws.
300.404 Use of fee-charging firms. 300.406 Agency responsibilities.

(a) Federal agencies are prohibited (a) The purpose of a commercial re-
from using commercial recruiting cruiting firm or nonprofit employment
firms and nonprofit employment serv- service is to serve as an additional
ices which charge fees to individuals source of applicants. Once recruited,
referred to Federal positions. Federal applicants must be evaluated and ap-
agencies may not consider a candidate pointed through regular civil service
referred by a commercial recruiting employment procedures.
firm or nonprofit employment service (1) For a competitive service posi-
if the individual has paid or is expected tion, an individual must be appointed
to pay any fee to the firm or service. in accordance with the terms of appli-
(b) The prohibition in paragraph (a) cable competitive service procedures.
of this section does not apply to reg- (2) For an excepted service position,
istration fees paid by individuals to an individual must be appointed in ac-
nonprofit employment services oper- cordance with the terms of the applica-
ated by professional organizations ble appointing authority and the re-
when the registration fee is imposed requirements set out in part 302 of this
gardless of whether the registrant is chapter.
referred for employment or placed. (3) For a Senior Executive Service
position filled by career appointment,
300.405 Requirement for contract. an individual must be appointed in ac-
(a) A written contract awarded in accordance with the competitive process
cordance with procedures stipulated in described in 5 U.S.C. 3393.
the Federal Acquisition Regulations is (b) In order to use commercial re-
required between the Federal agency cruiting firms or nonprofit employ-
and a commercial recruiting firm or ment services, agencies are required to:
nonprofit employment service. The (1) Make known that applicants may
contract will satisfy the written re- apply directly to the Government and
quest required by 18 U.S.C. 211. That thus need not apply through the com-
statute prohibits the acceptance of mercial recruiting firm or nonprofit
payment for aiding an individual to ob- employment service;
tain Federal employment except when (2) Give the same consideration to
an employment agency renders serv- candidates who have applied directly
ices pursuant to the written request of and candidates referred from the com-
an executive department or agency. mercial recruiting firm or nonprofit
(b) The contract must include the employment service; and
qualifications requirements for the po- (3) Follow all requirements for ap-
sition(s) to be filled and also provide pointment, including veterans pref-
that the firm or service will: erence, where applicable.
(1) Screen candidates only against
the basic qualifications requirements 300.407 Documentation.
for the position(s) specified by the Fed- (a) Agencies are required to maintain
eral agency in the contract and refer to records necessary to determine that
the agency all candidates who appear using commercial recruiting firms or
to meet those requirements; nonprofit employment services is cost
(2) Refer to the Federal agency only effective and has not resulted in the
those applicants from whom the firm violation of merit system principles or
or service has not accepted fees other the commission of any prohibited per-
than those permitted under 300.404(b) sonnel practice.
of this part; (b) When requested by OPM, agencies

(3) Not imply that it is the sole or will provide reports on the use of com-
primary avenue for employment with mercial recruiting firms, based on the
132
records required in paragraph (a) of (d) A Federal supervisor of Federal em-

this section. ployees is defined in 5 U.S.C. 7103(a)(10)
as
FR 3057, Jan. 13, 1995] an individual employed by an agency having
authority in the interest of the agency to
300.408 Corrective action. hire, direct, assign, promote, reward, trans-
fer, furlough, layoff, recall, suspend, dis-
Upon evidence of failure to comply cipline, or remove employees, to adjust their
with these regulations, OPM may, pur- grievances, or to effectively recommend such
suant to its authority, order the agen- action, if the exercise of the authority is not
cy to take appropriate corrective ac- merely routine or clerical in nature but re-
tion. quires the consistent exercise of independent
judgment * * *
Subpart EUse of Private Sector (e) A critical need is a sudden or unex-

Temporaries pected occurrence; an emergency; a
pressing necessity; or an exigency.
Such occasions are characterized by
SOURCE: 54 FR 3766, Jan. 25, 1989, unless additional work or deadlines required
otherwise noted. by statute, Executive order, court
order, regulation, or formal directive
from the head of an agency or subordi-
For purposes of this subpart: nate official authorized to take final
(a) A temporary help service firm is a action on behalf of the agency head. A
private sector entity which quickly recurring, cyclical peak workload, by
provides other organizations with spe- itself, is not a critical need.
cific services performed by its pool of (f) A local commuting area is defined in
employees, possessing the appropriate part 351 of this chapter.
work skills, for brief or intermittent [54 FR 3766, Jan. 25, 1989, as amended at 66
periods. The firm is the legally respon- FR 66710, Dec. 27, 2001]
sible employer and maintains that re-
lationship during the time its employ- 300.502 Coverage.
ees are assigned to a client. The firm, (a) These regulations apply to the
not the client organization, recruits, competitive service and to Schedules A
tests, hires, trains, assigns, pays, pro- and B in the excepted service.
vides benefits and leave to, and as nec- (b) Agencies may not use temporary
essary, addresses performance prob- help services for the Senior Executive
lems, disciplines, and terminates its Service or for the work of managerial
employees. Among other employer ob- or supervisory positions.
ligations, the firm is responsible for
[61 FR 19510, May 2, 1996]
payroll deductions and payment of in-
come taxes, social security (FICA), un- 300.503 Conditions for using private
employment insurance, and workers sector temporaries.
compensation, and shall provide re-
An agency may enter into a contract
quired liability insurance and bonding. or other procurement arrangement
(b) Private sector temporaries or outside with a temporary help service firm for
temporaries are those employees of a the brief or intermittent use of the
temporary help service firm who are skills of private sector temporaries,
supervised and paid by that firm and when required, and may call for those
whom that firm assigns to various cli- services, subject to these conditions:
ent organizations who have contracted (a) One of the following short-term
for the temporary use of their skills situations exists
when required. (1) An employee is absent for a tem-
(c) Parental and family responsibilities porary period because of a personal
are defined in OPM issuances and in- need including emergency, accident,
clude situations such as absence for illness, parental or family responsibil-
pregnancy, childbirth, child care, and ities, or mandatory jury service, but
care for elderly or infirm parents or not including vacations or other cir-
other dependents. cumstances which are not shown to be
133
300.504 5 CFR Ch. I (1116 Edition)
compelling in the judgment of the 300.504 Prohibition on employer-em-

agency, or ployee relationship.
(2) An agency must carry out work No employer-employee relationship
for a temporary period which cannot be is created by an agencys use of private
delayed in the judgment of the agency sector temporaries under these regula-
because of a critical need. tions. Services furnished by temporary
(b) The need cannot be met with cur- help firms shall be performed by their
rent employees or through the direct employees who shall not be considered
appointment of temporary employees or treated as Federal employees for
within the time available by the date, any purpose, shall not be regarded as
and for the duration of time, help is performing a personal service, and
needed. At minimum, this should in- shall not be eligible for civil service
clude an agency determination that employee benefits, including retire-
ment. Further, to avoid creating any
there are no qualified candidates on
appearance of such a relationship,
the applicant supply file and on the re- agencies shall observe the following re-
employment priority list (both of quirements:
which must provide preference for vet- (a) Time limit on use of temporary help
erans), and no qualified disabled vet- service firm. An agency may use a tem-
erans with a compensable service-con- porary help service firm(s) in a single
nected disability of 30 percent or more situation, as defined in 300.503, ini-
under 5 U.S.C. 3112, who are imme- tially for no more than 120 workdays.
diately available for temporary ap- Provided the situation continues to
pointment of the duration required, exist beyond the initial 120 workdays,
and that employees cannot be reas- the agency may extend its use of tem-
signed or detailed without causing porary help services up to the max-
undue delay in their regular work. In imum limit of 240 workdays.
instances where a need is foreseeable, (b) Time limit on use of individual em-
as when approval of employee absence ployee of a temporary help service firm.
is requested well in advance, an agency (1) An individual employee of any tem-
may have sufficient time to follow the porary help firm may work at a major
temporary appointment recruiting re- organizational element (headquarters
quirements, including veterans pref- or field) of an agency for up to 120
erence found in 5 CFR part 316 to deter- workdays in a 24-month period. The 24-
month period begins on the first day of
mine whether qualified candidates are
assignment.
available by the date needed and for
(2) An agency may make an excep-
the length of service required. tion for an individual to work up to a
(c) These services shall not be used: maximum of 240 workdays only when
(1) In lieu of the regular recruitment the agency has determined that using
and hiring procedures under the civil the services of the same individual for
service laws for permanent appoint- the same situation will prevent signifi-
ment in the competitive civil service, cant delay.
or (c) Individual employees of a tem-
(2) To displace a Federal employee. porary help firm providing temporary
(3) To circumvent controls on em- service to a Federal agency may be eli-
ployment levels. gible for competitive civil service em-
(4) In lieu of appointing a surplus or ployment only if appropriate civil serv-
displaced Federal employee as required ice hiring procedures are applied to
by 5 CFR part 330, subpart F (Agency them.
Career Transition Assistance Plan for (d) Agencies shall train their employ-
ees in appropriate procedures for inter-
Displaced Employees) and subpart G
action with private sector temporaries
(Interagency Career Transition Assist-
to assure that the supervisory respon-
ance Plan for Displaced Employees.) sibilities identified in paragraph (a) of
[54 FR 3766, Jan. 25, 1989, as amended at 61 300.501 of this subpart are carried out
FR 19510, May 2, 1996; 66 FR 66710, Dec. 27, by the temporary help service firm. At
2001] the same time, agencies must give
technical, task-related instructions to
134
private sector temporaries including regulations. As needed, OPM may re-

orientation, assignment of tasks, and quire agencies to provide information
review of work products, in order that on their use of temporary help service
the temporaries may properly perform firms.
their services under the contract. [61 FR 19511, May 2, 1996]
FR 19511, May 2, 1996] Subpart FTime-In-Grade
300.505 Relationship of civil service Restrictions
procedures.
SOURCE: 56 FR 23002, May 20, 1991, unless
Agencies continue to have full au- otherwise noted.
thority to meet their temporary needs
by various means, for example, redis- 300.601 Purpose.
tributing work, authorizing overtime,
The restrictions in this subpart are
using in-house pools, and making de-
intended to prevent excessively rapid
tails or time-limited promotions of
promotions in competitive service Gen-
current employees. In addition, agen-
eral Schedule positions and to protect
cies may appoint individuals as civil
competitive principles. They provide a
service employees on various work
budgetary control on promotion rates
schedules appropriate for the work to
and help assure that appointments are
be performed.
made from appropriate registers. These
[61 FR 19511, May 2, 1996] restrictions are in addition to the eligi-
bility requirements for promotion in
300.506 Requirements of procure- part 335 of this chapter.
ment.
(a) Agencies must follow the Federal 300.602 Definitions.
procurement laws and the Federal Ac- In this subpart
quisition Regulation, as applicable, in Advancement means a promotion (in-
procuring services from the private cluding a temporary promotion) or any
sector. type of appointment resulting in a
(b) Agencies should make full use of higher grade or higher rate of basic
the provisions of the Federal procure- pay.
ment system to make clear that the Competitive appointment means an ap-
firm is the legally responsible em- pointment based on selection from a
ployer and to specify the obligations competitive examination register of
the firm will have to meet to provide eligibles or under a direct hire author-
effective performance including such ity.
matters as the types and levels of Hardship to an agency involves seri-
skills to be provided, deadlines for pro- ous difficulty in filling a position, in-
viding service, liability insurance, and, cluding when:
when necessary, security requirements. (a) The situation to be redressed re-
The Federal procurement system also sults from circumstances beyond the
requires contractors to comply with af- organizations control and otherwise
firmative action requirements to em- would require extensive corrective ac-
ploy and advance in employment quali- tion; or
fied disabled and Vietnam era veterans (b) A position at the next lower grade
as provided in 41 CFR part 60250, and in the normal line of promotion does
with public policy programs including not exist and the resulting action is
equal employment opportunity, handi- not a career ladder promotion; or
capped employment, and small busi- (c) There is a shortage of candidates
nesses. for the position to be filled.
Inequity to an employee involves situa-
300.507 Documentation and over- tions where a position is upgraded
sight. without change in the employees du-
Agencies are required to maintain ties or responsibilities, or where dis-
records and provide oversight to estab- crimination or administrative error

lish that their use of temporary help prevented an employee from reaching a
service firms is consistent with these higher grade.
135
300.603 5 CFR Ch. I (1116 Edition)
Nontemporary appointment means any consecutive promotions at rates that

appointment other than a temporary exceed those permitted by 300.604 of
appointment pending establishment of this part.
a register (TAPER) or a temporary or (7) Advancement to avoid hardship to
excepted appointment not to exceed 1 an agency or inequity to an employee
year or less. in an individual meritorious case but
only with the prior approval of the
300.603 Coverage. agency head or his or her designee.
(a) Coverage. This subpart applies to However, an employee may not be pro-
advancement to a General Schedule po- moted more than three grades during
sition in the competitive service by any 52-week period on the basis of this
any individual who within the previous paragraph.
52 weeks held a General Schedule posi- (8) Advancement when OPM author-
tion under nontemporary appointment izes it to avoid hardship to an agency
in the competitive or excepted service or inequity to an employee in indi-
in the executive branch, unless ex- vidual meritorious situations not de-
cluded by paragraph (b) of this section. fined, but consistent with the defini-
(b) Exclusions. The following actions tions, in 300.602 of this part.
may be taken without regard to this [56 FR 23002, May 20, 1991, as amended at 66
subpart but must be consistent with all FR 66710, Dec. 27, 2001]
other applicable requirements, such as
qualification standards: 300.604 Restrictions.
(1) Appointment based on selection The following time-in-grade restric-
from a competitive examination reg- tions must be met unless advancement
ister of eligibles or under a direct hire is permitted by 300.603(b) of this part:
authority. (a) Advancement to positions at GS12
(2) Noncompetitive appointment and above. Candidates for advancement
based on a special authority in law or to a position at GS12 and above must
Executive order (but not including have completed a minimum of 52 weeks
transfer and reinstatement) made in in positions no more than one grade
accordance with all requirements ap- lower (or equivalent) than the position
plicable to new appointments under to be filled.
that authority. (b) Advancement to positions at GS6
(3) Advancement in accordance with through GS11. Candidates for advance-
part 335 of this chapter up to any Gen- ment to a position at GS6 through
eral Schedule grade the employee pre- GS11 must have completed a min-
viously held under nontemporary ap- imum of 52 weeks in positions:
pointment in the competitive or ex- (1) No more than two grades lower (or
cepted service. equivalent) when the position to be
(4) Advancement of an employee from filled is in a line of work properly clas-
a non-General Schedule position to a sified at 2-grade intervals; or
General Schedule position unless the (2) No more than one grade lower (or
employee held a General Schedule posi- equivalent) when the position to be
tion under nontemporary appointment filled is in a line of work properly clas-
in the executive branch within the pre- sified at 1-grade intervals; or
vious 52 weeks. (3) No more than one or two grades
(5) Advancement of an individual lower (or equivalent), as determined by
whose General Schedule service during the agency, when the position to be
the previous 52 weeks has been totally filled is in a line of work properly clas-
under temporary appointment. sified at 1-grade intervals but has a
(6) Advancement of an employee mixed interval promotion pattern.
under a training agreement established (c) Advancement to positions up to GS
in accordance with OPMs operating 5. Candidates may be advanced without
manuals. However, an employee may time restriction to positions up to GS
not receive more than two promotions 5 if the position to be filled is no more
in any 52-week period solely on the than two grades above the lowest grade
basis of one or more training agree- the employee held within the preceding
ments. Also, only OPM may approve a 52 weeks under his or her latest non-
training agreement that provides for temporary competitive appointment.
136
300.605 Creditable service. Subpart GStatutory Bar to Ap-

(a) All service at the required or pointment of Persons Who Fail
higher grade (or equivalent) in posi- To Register Under Selective
tions to which appointed in the Federal Service Law
civilian service is creditable towards
the time periods required by 300.604 of SOURCE: 52 FR 7400, Mar. 11, 1987, unless
this part, except as provided in para- otherwise noted.
graph (c) of this section. Creditable
service includes competitive and ex- 300.701 Statutory requirement.
cepted service in positions under the
Section 3328 of title 5 of the United
General Schedule and other pay sys-
States Code provides that
tems, including employment with a
nonappropriated fund instrumentality. (a) An individual
Service while on detail is credited at (1) Who was born after December 31, 1959,
the grade of the employees position of and is or was required to register under sec-
record, not the grade of the position to tion 3 of the Military Selective Service Act
which detailed. Also creditable is serv- (50 U.S.C. App. 453); and
ice with the District of Columbia Gov- (2) Who is not so registered or knowingly
and willfully did not so register before the
ernment prior to January 1, 1980 (or
requirement terminated or became inappli-
prior to September 26, 1980, for those cable to the individual, shall be ineligible for
District employees who were converted appointment to a position in an executive
to the District personnel system on agency of the Federal Government.
January 1, 1980). (b) The Office of Personnel Management, in
(b) Service in positions not subject to consultation with the Director of the Selec-
the General Schedule (GS) is credited tive Service System, shall prescribe regula-
at the equivalent GS grade by com- tions to carry out this section. Such regula-
tions shall include provisions prescribing
paring the candidates rate of basic pay
procedures for the adjudication within the
with the representative rate (as defined Office of determinations of whether a failure
in 351.203 of this chapter) of the GS to register was knowing and willful. Such
position in effect when the non-GS procedures shall require that such a deter-
service was performed. The equivalent mination may not be made if the individual
GS grade is the GS grade with a rep- concerned shows by a preponderance of the
resentative rate that equals the can- evidence that the failure to register was nei-
didates rate of basic pay. When the ther knowing nor willful.
candidates rate of basic pay falls be-
tween the representative rates of two 300.702 Coverage.
GS grades, the non-GS service is cred- Appointments in the competitive
ited at the higher grade. service, the excepted service, the Sen-
(c) In applying the restrictions in ior Executive Service, or any other
300.604 of this part, prior service under civil service personnel management
temporary appointment at a level system in an executive agency are cov-
above that of a subsequent non- ered by these regulations.
temporary competitive appointment is
credited as if the service had been per- 300.703 Definitions.
formed at the level of the non- In this subpart
temporary appointment. This provision Appointment means any personnel ac-
applies until the employee has served tion that brings onto the rolls of an ex-
in pay status for 52 weeks under non- ecutive agency as a civil service officer
temporary competitive appointment; or employee as defined in 5 U.S.C. 2104
thereafter, the service is credited at its or 2105, respectively, a person who is
actual grade level (or equivalent). not currently employed in that agency.
It includes initial employment as well
300.606 Agency authority. as transfer between agencies and subse-
An agency may expand on these re- quent employment after a break in
strictions consistent with the intent of service. Personnel actions that move
this subpart or may adopt similar poli- an employee within an agency without
cies to control promotion rates of em- a break in service are not covered. A
ployees not covered by this subpart. break in service is a period of 4 or more
137
300.704 5 CFR Ch. I (1116 Edition)
calendar days during which an indi- 300.704 Considering individuals for

vidual is no longer on the rolls of an appointment.
executive agency. (a) An executive agency must request
Covered individual means a male (a) a written statement of Selective Serv-
whose application for appointment is ice registration status from each cov-
under consideration by an executive ered individual at an appropriate time
agency or who is an employee of an ex- during the consideration process prior
ecutive agency; (b) who was born after to appointment, and from each covered
December 31, 1959, and is at least 18 employee who becomes 18 after ap-
years of age or becomes 18 following pointment. The individual must com-
appointment; (c) who is either a United plete, sign, and date in ink the state-
States citizen or an alien (including ment on a form provided by the agency
parolees and refugees and those who unless the applicant furnishes other
documentation as provided by para-
are lawfully admitted to the United
graph (c) of this section.
States for permanent residence and for
(b) Statement of Selective Service reg-
asylum) residing in the United States; istration status. Agencies should repro-
and (d) is or was required to register duce the following statement, which
under section 3 of the Military Selec- has been approved by the Office of
tive Service Act (50 U.S.C. App. 453). Management and Budget for use
Nonimmigrant aliens admitted under through October 31, 1989, under OMB
section 101(a)(15) of the Immigration Control No. 32060166:
and Nationality Act (8 U.S C. 1101),
APPLICANTS STATEMENT OF SELECTIVE
such as those admitted on visitor or
SERVICE REGISTRATION STATUS
student visas, and lawfully remaining
in the United States, are exempt from If you are a male born after December 31,
1959, and are at least 18 years of age, civil
registration. service employment law (5 U.S.C. 3328) re-
Executive agency means an agency of quires that you must be registered with the
the Government of the United States Selective Service System, unless you meet
as defined in 5 U.S.C. 105. certain exemptions under Selective Service
Exemptions means those individuals law. If you are required to register but know-
ingly and willfully fail to do so, you are in-
determined by the Selective Service eligible for appointment by executive agen-
System to be excluded from the re- cies of the Federal Government.
quirement to register under sections 3
and 6(a) of the Military Selective Serv- CERTIFICATION OF REGISTRATION STATUS
ice Act (50 U.S.C. App. 453 and 456(a)) or Check one:
Presidential proclamation. [ ] I certify I am registered with the Selec-
tive Service System.
Preponderance of the evidence means [ ] I certify I have been determined by the
that degree of relevant evidence that a Selective Service System to be exempt
reasonable person, considering the from the registration provisions of Selec-
record as a whole, would accept as suf- tive Service law.
ficient to support a conclusion that the [ ] I certify I have not registered with the
Selective Service System.
matter asserted is more likely to be [ ] I certify I have not reached my 18th
true than not true. birthday and understand I am required
Registrant means an individual reg- by law to register at that time.
istered under Selective Service law.
NON-REGISTRANTS UNDER AGE 26
Selective Service law means the Mili-
tary Selective Service Act, rules and If you are under age 26 and have not reg-
istered as required, you should register
regulations issued thereunder, and
promptly at a United States Post Office, or
proclamations of the President under consular office if you are outside the United
that Act. States.
Selective Service System means the
NON-REGISTRANTS AGE 26 OR OVER
agency responsible for administering
the registration system and for deter- If you were born in 1960 or later, are 26
mining who is required to register and years of age or older, and were required to
register but did not do so, you can no longer

who is exempt. register under Selective Service law. Accord-
ingly, you are not eligible for appointment
138
to an executive agency unless you can prove 300.705 Agency action following
to the Office of Personnel Management statement.
(OPM) that your failure to register was nei-
ther knowing nor willful. You may request (a) Agencies must resolve conflicts of
an OPM decision through the agency that information and other questions con-
was considering you for employment by re- cerning an individuals registration
turning this statement with your written re- status prior to appointment. An agency
quest for an OPM determination together may verify, at its discretion, an indi-
with any explanation and documentation viduals registration status by request-
you wish to furnish to prove that your fail-
ing the individual to provide proof of
ure to register was neither knowing nor will-
ful. registration or exemption issued by the
Selective Service System and/or by
PRIVACY ACT STATEMENT contacting the Selective Service Sys-
Because information on your registration
tem at 8886551825.
status is essential for determining whether (b) An agency may continue regular
you are in compliance with 5 U.S.C. 3328, pre-employment consideration of indi-
failure to provide the information requested viduals whose statements show they
by this statement will prevent any further have registered or are exempt.
consideration of your application for ap- (c) An agency will take the following
pointment. This information is subject to actions when a covered individual who
verification with the Selective Service Sys-
is required to register has not done so,
tem and may be furnished to other Federal
agencies for law enforcement or other au- and is under age 26:
thorized use in implementing this law. (1) Advise him to register promptly
and, if he wishes further consideration,
FALSE STATEMENT NOTIFICATION to submit a new statement imme-
A false statement may be grounds for not diately to the agency once he has reg-
hiring you, or for firing you if you have al- istered. The agency will set a time
ready begun work. Also, you may be pun- limit for submitting the statement.
ished by fine or imprisonment. (Section 1001 (2) Provide written notice to an indi-
of title 18, United States Code.) vidual who still does not register after
llllllllllllllllllllllll being informed of the above require-
Legal signature of individual (please use ink) ments that he is ineligible for appoint-
ment according to 5 U.S.C. 3328 and
llllllllllllllllllllllll
will be given no further employment
Date signed (please use ink)
consideration.
(c) At his option, a covered individual (d) An agency will take the following
may submit, in lieu of the statement actions when a covered individual who
described above, a copy of his Acknowl- is age 26 or over, was required to reg-
edgment Letter or other proof of register, and has not done so:
istration or exemption issued by the (1) Provide written notice to the indi-
Selective Service System. The individual that, in accordance with 5
vidual must sign and date the docu- U.S.C. 3328, he is ineligible for appoint-
ment and add a note stating it is sub- ment unless his failure to register was
mitted as proof of Selective Service neither knowing nor willful, and that
registration or exemption. OPM will decide whether his failure to
(d) An executive agency will give no register was knowing and willful if he
further consideration for appointment submits a written request for such de-
to individuals who fail to provide the cision and an explanation of his failure
information requested above on reg- to register.
istration status. (2) Submit the individuals applica-
(e) An agency considering employ- tion, the statement described in
ment of a covered individual who is a 300.704(b), a copy of the written no-
current or former Federal employee is tice, his request for a decision and ex-
not required to request a statement planation of his failure to register, and
when it determines that the individ- any other papers pertinent to his reg-
uals Official Personnel Folder con- istration status for determination to
tains evidence indicating the indi- Registration Review, Staffing Oper-

vidual is registered or currently ex- ations Division, Career Entry Group,
empt from registration. room 6A12, U.S. Office of Personnel
139
300.706 5 CFR Ch. I (1116 Edition)
Management, 1900 E Street, NW., Wash- tial determinations. However, OPM

ington, DC 20415. may review any initial determination
(3) An agency is not required to keep and make a final adjudication in any
a vacancy open for an individual who case. If a delegation is made under this
seeks an OPM determination. paragraph, the notice in 300.705(d)(1)
(e) Individuals described in paragraph will state that the individual may sub-
(c) of this section who do not submit a mit a written request that OPM review
statement of registration or exemption the agencys initial determination. The
are not eligible for employment consid- agency will forward to OPM copies of
eration. Individuals described in para- all documents relating to the individ-
graph (d) of this section are not eligible uals failure to register, including the
for employment consideration unless individuals request for review and his
OPM finds that failure to register was explanation of his failure to register.
neither knowing nor willful. Agencies
are not required to follow the objec- 300.707 Termination of employment.
tions-to-eligibles procedures described A covered individual who is serving
in 332.406 concerning such individuals under an appointment made on or after
who were certified or otherwise re- November 8, 1985, and is not exempt
ferred by an OPM examining office or from registration, will be terminated
other office delegated examining au- by his agency under the authority of
thority by OPM. Instead, an agency the statute and these regulations if he
will provide, for information as part of has not registered as required, unless
its certification report to that office, a he registers or unless, if no longer eli-
copy of its written notice to the indi- gible to register, OPM determines in
vidual. response to his explanation that his
[52 FR 7400, Mar. 11, 1987, as amended at 64 failure to register was neither knowing
FR 28713, May 27, 1999] nor willful.
300.706 Office of Personnel Manage- PART 301OVERSEAS

ment adjudication.
EMPLOYMENT
(a) OPM will determine whether fail-
ure to register was knowing and willful Subpart A [Reserved]
when an individual has requested a de-
cision and presented a written expla- Subpart BOverseas Limited Appointment
nation, as described in 300.705. The As-
Sec.
sociate Director for Career Entry or his 301.201 Appointments of United States citi-
or her designee will make the deter- zens recruited overseas.
mination based on the written expla- 301.202 Appointment of citizens recruited
nation provided by the individual. The outside overseas areas.
burden of proof will be on the indi- 301.203 Duration of appointment.
vidual to show by a preponderance of 301.204 Status and trial period.
the evidence that failure to register 301.205 Requirements and restrictions.
301.206 Within-grade increases.
was neither knowing nor willful.
(b) OPM may consult with the Selec- Subpart COverseas Employees Eligible
tive Service System in making deter- for Noncompetitive Appointment Upon
minations. Return to the United States
(c) The Associate Director for Career
Entry or his or her designee will notify 301.301 Eligibility under the authority of
the individual and the agency in writ- Executive Order 12362.
ing of the determination. The deter- 301.302 Overseas appointing procedures.
301.303 Performance appraisal.
mination is final unless reconsidered at
the discretion of the Associate Direc- AUTHORITY: 5 U.S.C. 3301, 3302; E.O. 10577, 3
tor. There is no further right to admin- CFR, 19541958 Comp., p. 218, as amended by
istrative review. E.O. 10641, 3 CFR, 19541958 Comp., p. 274, un-
less otherwise noted.
(d) The Director of OPM may reopen
and reconsider a determination. SOURCE: 44 FR 54691, Sept. 21, 1979, unless
otherwise noted.
(e) The Director of OPM may, at his

or her discretion, delegate to an execu-
tive agency the authority to make ini- Subpart A [Reserved]
140
Subpart BOverseas Limited ited appointment. He or she is required

Appointment to serve a trial period of 1 year when
given an overseas limited appointment
301.201 Appointments of United of indefinite duration or an overseas
States citizens recruited overseas. limited term appointment.
When there is a shortage of eligible (b) The agency may terminate an
applicants, as defined at 337.202 of this overseas limited employee at any time
chapter, resulting from a competitive during the trial period. The employee
announcement that is open to appli- is entitled to the procedures set forth
cants in the local overseas area, an in 315.804 or 315.805 of this chapter as
agency may give an overseas limited appropriate.
appointment to a United States citizen
recruited overseas for a position over- 301.205 Requirements and restric-
seas. tions.
[69 FR 33275, June 23, 2004] The requirements and restrictions in
subpart F of part 300 of this chapter
301.202 Appointment of citizens re- apply to appointments under this sub-
cruited outside overseas areas.
part.
When an agency determines that un-
usual or emergency conditions make it [69 FR 33275, June 15, 2004]
infeasible to appoint from a register, it
may give an overseas limited appoint- 301.206 Within-grade increases.
ment to a United States citizen re- An employee serving under an over-
cruited in an area where an overseas seas limited appointment of indefinite
limited appointment is not authorized. duration or an overseas limited term
appointment in a position subject to
301.203 Duration of appointment.
the General Schedule, is eligible for
(a) An appointment under this sub- within-grade increases in accordance
part is of indefinite duration unless with subpart D of part 531 of this chap-
otherwise limited. ter.
(b) An agency may make an overseas
limited term appointment for a period (5 U.S.C. 3301, 3302, E.O. 10577, 3 CFR, 1954
not in excess of 5 years when a time 1958 Comp., p. 218, as amended by E.O. 10641,
limitation is imposed as a part of a 3 CFR, 19541958 Comp., p. 274)
general program for rotating career
and career-conditional employees be- Subpart COverseas Employees
tween overseas areas and the United Eligible for Noncompetitive
States after specified periods of over- Appointment Upon Return to
seas service.
(c) An agency may make an overseas
the United States
limited appointment for 1 year or less
to meet administrative needs for tem- AUTHORITY: E.O. 12362, 47 FR 21231, 3 CFR,
porary employment. An agency may 1982 Comp., p. 182.
extend such an appointment for up to a SOURCE: 48 FR 52868, Nov. 23, 1983, unless
maximum of 1 additional year. otherwise noted. Correctly designated at 49
(d) Upon request from the head- FR 5601, Feb. 14, 1984.
quarters level of a Department or agen-
cy, OPM may approve, or delegate to 301.301 Eligibility under the author-
agencies the authority to approve, ex- ity of Executive Order 12362.
ceptions to the time limits set out in Employees who serve under overseas
paragraph (c) of this section. local hire appointments as defined in
[44 FR 54691, Sept. 21, 1979, as amended at 60 315.608(b) of this chapter and meet the
FR 3057, Jan. 13, 1995] eligibility criteria of 315.608(a) of this
chapter are eligible for noncompetitive
301.204 Status and trial period. career-conditional, term, or temporary
(a) An overseas limited employee limited appointment when they return

does not acquire a competitive status to the United States.
on the basis of his or her overseas lim-
141
301.302 5 CFR Ch. I (1116 Edition)
301.302 Overseas appointing proce- Subpart EAppeals

dures.
302.501 Entitlement.
Overseas agencies are required to in-
AUTHORITY: 5 U.S.C. 1302, 3301, 3302, 8151,
sure that selection of employees for
E.O. 10577 (3 CFR 19541958 Comp., p. 218);
local hire appointments in the overseas 302.105 also issued under 5 U.S.C. 1104, Pub.
area is made on the basis of the ability, L. 95454, sec. 3(5); 302.501 also issued under
knowledge, and skills of eligible can- 5 U.S.C. 7701 et seq.
didates, in accordance with applicable
SOURCE: 55 FR 9407, Mar. 14, 1990, unless
law and regulation. otherwise noted.
301.303 Performance appraisal.
As soon as practicable, but beginning
not later than January 1, 1984, overseas 302.101 Positions covered by regula-
agencies are required to evaluate the tions.
performance of employees who serve (a) Positions covered. With respect to
under overseas local hire appointments the application of veteran preference,
as defined in 315.608(b) of this chapter this part applies to each position in the
and who are eligible to meet the cri- Executive Branch of the Federal Gov-
teria established in 315.608(a), of this ernment that is not in the competitive
chapter in accordance with the agen- service and that is subject to the provi-
cys performance appraisal plan estab- sions of title 5, United States Code, or
lished under chapter 43 of title 5, U.S. subject to a statutory requirement to
Code, unless the agency is exempt from follow the veteran preference provi-
the provisions of that chapter. sions of title 5. With respect to restora-
tion rights that are due to compensable
PART 302EMPLOYMENT IN THE injury and appeals therefrom, this part
EXCEPTED SERVICE applies to those positions covered by 5
U.S.C. 8101(1) that are not in the com-
Subpart AGeneral Provisions petitive service.
(b) Positions not covered. This part
Sec.
302.101 Positions covered by regulations.
does not apply to a position or appoint-
302.102 Method of filling positions and sta- ment that is required by the Congress
tus of incumbents. to be confirmed by, or made with the
302.103 Definitions. advice and consent of, the Senate.
302.104 Applicability of regulations to appli- (c) Positions exempt from appointment
cants and employees. procedures. In view of the cir-
302.105 Special agency plans. cumstances and conditions surrounding
302.106 Vacancy announcements. employment in the following classes of
positions, an agency is not required to
Subpart BEligibility Standards
apply the appointment procedures of
302.201 Persons entitled to veteran pref- this part to them, but each agency
erence. shall follow the principle of veteran
302.202 Qualification requirements. preference as far as administratively
302.203 Disqualifying factors. feasible and, on the request of a quali-
fied and available preference eligible,
Subpart CAccepting, Rating and shall furnish him/her with the reasons
Arranging Applications for his/her nonselection. Also, the ex-
302.301 Receipt of applications. emption from the appointment proce-
302.302 Examination of applicants. dures of this part does not relieve agen-
302.303 Maintenance of employment lists. cies of their obligation to accord per-
302.304 Order of consideration. sons entitled to priority consideration
(see 302.103) their rights under 5 U.S.C.
Subpart DSelection and Appointment; 8151:
Reappointment; and Qualifications for (1) Positions filled by persons ap-
Promotion pointed without pay or at pay of $1 a
302.401 Selection and appointment. year;

302.402 Reappointment. (2) Positions outside the continental
302.403 Qualifications for promotion. United States and outside the State of
142
Hawaii and the Commonwealth of practices that the head of the agency
Puerto Rico when filled by persons concerned finds necessary.
resident in the locality, and positions (b) Except as authorized under para-
in the State of Hawaii and the Com- graph (c) of this section, a person ap-
monwealth of Puerto Rico when paid in pointed to an excepted position does
accordance with prevailing wage rates; not acquire a competitive status by
(3) Positions which the exigencies of reason of the appointment. When an
the national defense program demand employee serving under a non-
be filled immediately before lists of temporary appointment in the com-
qualified applicants can be established petitive service is selected for an ex-
or used, but appointments to these po- cepted appointment, the agency must
sitions shall be temporary appoint- (1) Inform the employee that, because
ments not to exceed 1 year which may the position is in the excepted service,
be renewed for 1 additional year at the it may not be filled by a competitive
discretion of the agency; appointment, and that acceptance of
(4) Positions filled by appointees the proposed appointment will take
serving on an irregular or occasional him/her out of the competitive service
basis whose hours or days of work are while he/she occupies the position; and
not based on a prearranged schedule (2) Obtain from the employee a writ-
and who are paid only for the time ten statement that he/she understands
when actually employed or for services he/she is leaving the competitive serv-
actually performed; ice voluntarily to accept an appoint-
ment in the excepted service.
(5) Positions paid on a fee basis;
(c) Upon a finding by OPM that in a
(6) Positions included in Schedule A particular situation the action will be
(see subpart C of part 213 of this chap- in the interest of good administration,
ter) and similar types of positions OPM may authorize an agency to make
when OPM agrees with the agency that appointments to specified positions in
the positions should be included here- the excepted service in the same man-
under; ner as to positions in the competitive
(7) Positions included in Schedule C service. Persons given career-condi-
(see subpart C of part 213 of this chap- tional or career appointments pursuant
ter) and positions excepted by statute to a specific authorization by OPM
which are of a confidential, policy- under this paragraph may acquire a
making, or policy-advocating nature; competitive status as provided in part
(8) Attorney positions; and 315 of this chapter.
(9) Positions filled by reemployment
[55 FR 9407, Mar. 14, 1990, as amended at 58
of an individual in the same agency
FR 58261, Nov. 1, 1993]
and commuting area, at the same or
lower grade, and under the same ap- 302.103 Definitions.
pointing authority as the position last
Person entitled to priority consideration
held; Provided That, there are no can-
means a person who was furloughed or
didates eligible for the position on the
separated without misconduct, from a
agencys priority reemployment list es-
position without time limit, because of
tablished in accordance with 302.303.
a compensable injury and whose recov-
(10) Positions for which a critical hir-
ery takes longer than 1 year from the
ing need exists when filled under
date compensation began. To be eligi-
213.3102(i)(2) of this chapter.
ble under this part the person must
[55 FR 9407, Mar. 14, 1990, as amended at 58 apply for reappointment to his or her
FR 58260, Nov. 1, 1993; 60 FR 10006, Feb. 23, former agency within 30 days of the
1995; 77 FR 28214, May 11, 2012] date of cessation of compensation.
302.102 Method of filling positions 302.104 Applicability of regulations
and status of incumbent. to applicants and employees.
(a) To the extent permitted by stat- Each agency shall follow the provi-
ute and this chapter, each appoint- sions of this part relating to examina-
ment, position change, and removal in tion, rating, and selection for appoint-
the excepted service shall be made in ment of an applicant when a qualified
accordance with any regulations or preference eligible or person entitled to
143
302.105 5 CFR Ch. I (1116 Edition)
priority consideration applies for ap- 302.202 Qualification requirements.

pointment to a position covered by this
Before making an appointment to a
part. Each agency, in its discretion,
may follow these provisions when no position covered by this part, each
preference eligible or person entitled to agency shall establish qualification
priority consideration applies. standards such as those relating to ex-
perience and training, citizenship, min-
302.105 Special agency plans. imum age, physical condition, etc.,
An agency having a position subject which shall relate to the duties to be
to this part may establish a system performed. An agency may delegate the
which will result in granting to eligible establishment of standards relating to
persons the preference or priority con- a group of positions or a specific posi-
sideration referred to in sections tion to the appropriate administrative
1302(c) or 8151 of title 5, United States level or subdivision in accordance with
Code, but which does not conform to the needs of the locality in which the
all the procedural requirements set position is located, but the agency
forth in this part. The agency estab- shall determine that each standard es-
lishing such a system must ensure that tablished is in conformity with this
all eligible applicants entitled to vet- part. Each agency shall make its
eran preference or priority consider- standards a matter of record in the ap-
ation receive at least as much advan- propriate office of the agency, and
tage in referral as they would receive shall furnish information concerning
under the procedures set forth in this the standards for a position to an ap-
part. plicant on his/her request. Each agency
shall apply the standards for a position
302.106 Vacancy announcements.
uniformly to all applicants, except for
When an agency announces a vacancy such waivers as are provided in this
in the excepted service, the announce- part for a preference eligible. An agen-
ment must contain a reasonable ac- cy shall not include a minimum edu-
commodation statement that complies cational requirement in qualification
with requirements in part 330, subpart
standards, except for a scientific, tech-
A of this chapter.
nical, or professional position the du-
[66 FR 63906, Dec. 11, 2001, as amended at 75 ties of which the agency decides cannot
FR 67593, Nov. 3, 2010] be performed by a person who does not
have a prescribed minimum education.
Subpart BEligibility Standards An agency shall not establish a max-
imum age requirement for any posi-
302.201 Persons entitled to veteran tion. Each agency shall make a part of
preference.
its records the reasons for its decision
In actions subject to this part, each under this section and shall furnish
agency shall grant veteran preference those reasons to an applicant on his/
as follows: her request. The qualification stand-
(a) When numerical scores are used in ards shall include:
the evaluation and referral, the agency (a) A provision for waiver by the
shall grant 5 additional points to pref-
agency of requirements as to age,
erence eligibles under section 2108(3)
height, and weight for each preference
(A) and (B) of title 5, United States
Code, and 10 additional points to pref- eligible when the requirements are not
erence eligibles under section 2108(3) essential to the performance of the du-
(C) through (G) of that title. ties of the position; and
(b) When eligible candidates are re- (b) A provision for waiver by the
ferred without ranking, the agency agency of physical requirements for
shall note preference as CP for pref- each preference eligible when the agen-
erence eligibles under 5 U.S.C. cy, after giving due consideration to
2108(3)(C), as XP for preference eligi- the recommendation of an accredited
bles under 5 U.S.C. 2108(3) (D) through physician, finds that the applicant is
(G), and as TP for all other pref- physically able to discharge the duties
erence eligibles under that title. of the position.
144
302.203 Disqualifying factors. in accordance with the procedures de-

(a) The qualification standards estab- scribed in paragraph (b)(5) of 302.304. If
lished by an agency or by an adminis- qualitative ranking is desired, numer-
trative level or subdivision of an agen- ical scores may be assigned in accord-
cy may provide that certain reasons ance with paragraph (b) of this section.
disqualify an applicant for appoint- Each agency shall make a part of the
ment. The following, among others, records the reasons for its decision to
may be included as disqualifying rea- use ranked or unranked referral and,
sons: for ranked actions, the quality ranking
(1) Dismissal from employment for factors used. This information shall be
delinquency or misconduct; made available to an applicant on his/
(2) Criminal, infamous, dishonest, her request.
immoral, or notoriously disgraceful (b) Rating. Numerical scores will be
conduct; assigned on a scale of 100. Each appli-
(3) Intentional false statement or de- cant who meets the qualification re-
ception or fraud in examination or ap- quirements for the position established
pointment; under 302.202 will be assigned a rating
(4) Habitual use of intoxicating bev- of 70 or more and will be eligible for ap-
erages to excess; pointment. Candidates scoring 70 or
(5) Reasonable doubt as to the loy- more will receive additional points for
alty of the person involved to the Gov-
veteran preference as provided in
ernment of the United States;
302.201. Numerical ratings are not re-
(6) Any legal or other disqualification
which makes the individual unfit for quired when all qualified applicants
service; or will be offered immediate appointment.
(7) Lack of United States citizenship. When there is an excessive number of
(b) An agency may not disqualify an applicants, numerical ratings are re-
applicant solely because of his/her required only for a sufficient number of
tired status. the highest qualified applicants to
meet the anticipated needs of the agen-
Subpart CAccepting, Rating, cy within a reasonable period of time.
and Arranging Applications The agency must, however, adopt pro-
cedures to insure the consideration of
302.301 Receipt of applications. preference eligibles in the order in
(a) Each agency shall establish defi- which they would have been considered
nite rules regarding the acceptance of if all applicants had been assigned nu-
applications for employment in posi- merical ratings. An agency shall fur-
tions covered by this part and shall nish a notice of the rating assigned to
make these rules a matter of record. an applicant on his/her request.
(b) Each agency shall apply its rules (c) Nonpreference applicants for certain
uniformly to all applicants who meet positions. An agency may not consider
the conditions of the rules and shall or rate an application for the position
furnish information concerning the of elevator operator, messenger, guard,
rules to an applicant on his/her re- or custodian submitted by a non-
quest. preference eligible as long as at least
three qualified preference eligibles are
302.302 Examination of applicants. available for the position.
(a) Eligibility. An evaluation of the (d) Evaluating experience. When expe-
qualifications of applicants for posi- rience is a factor in determining eligi-
tions covered by this part may be con- bility, an agency shall credit a pref-
ducted at any time before an appoint- erence eligible (1) with time spent in
ment is made. The evaluation may in- the military service of the United
volve only determination of eligibility States if the position for which he/she
or ineligibility or may include quali-
is applying is similar to the position
tative rating of candidates. If the eval-
which he/she held immediately before
uation involves only basic eligibility

numerical scores will not be assigned
and eligible candidates will be referred
145
302.303 5 CFR Ch. I (1116 Edition)
his/her entrance into the military serv- employment list in the geographic
ice; and (2) with all valuable experi- areas specified in paragraph (b)(1) of
ence, including experience gained in re- this section and remain on the list for
ligious, civic, welfare, service, and or- 2 years unless the agency elects to pro-
ganizational activities, regardless of vide a longer period of eligibility. The
whether pay was received therefor. priority reemployment list includes:
(1) The name of each former em-
302.303 Maintenance of employment ployee of the agency who is a pref-
lists.
erence eligible, has been furloughed or
(a) Establishment(1) Agencys obliga- separated from a continuing appoint-
tion. An agency must establish a pri- ment without delinquency or mis-
ority reemployment list whenever any conduct, and applies for reemployment.
applicants rated eligible under 302.302 Candidates in this category are consid-
meet the conditions set out in para- ered for positions in the commuting
graphs (b)(1) through (b)(3) of this sec- area where they were separated unless
tion and must consider candidates from the agency elects to provide broader
that list in accordance with 302.304(a). consideration.
All applicants not included on the pri- (2) The name of each former em-
ority reemployment list will be listed ployee of the agency who is a pref-
on the regular employment list unless erence eligible and who, as the result of
the agency elects to establish a reem- an appeal under part 752 of this chap-
ployment list as provided in paragraph ter, is found by the Merit Systems Pro-
(c) of this section.
tection Board to have been
(2) Agency discretion. In establishing
unjustifiably dismissed from the agen-
its lists, an agency may, but is not re-
cy, but who is not entitled to imme-
quired to: Afford priority consideration
diate restoration under the Boards de-
to non-preference eligibles who meet
cision. Candidates in this category are
the conditions set out in paragraph
considered in the commuting area from
(b)(4) of this section; afford priority
which separated unless the Boards de-
consideration under paragraph (b) of
cision specifies a broader or different
this section for a longer time and/or in
area or the agency elects to afford
a broader geographic area than the
broader geographic consideration.
minimum requirement; and/or provide
reemployment consideration after the (3) The name of each former em-
priority list is exhausted to additional ployee of the agency who has been fur-
current and former employees in ac- loughed or separated due to compen-
cordance with paragraph (c) of this sec- sable injury sustained under the provi-
tion. An agency may limit consider- sions of 5 U.S.C. chapter 81, subchapter
ation granted at its discretion to appli- I, who is not entitled to immediate res-
cants for specific positions or appli- toration, and who is eligible for pri-
cants who meet specific conditions, but ority consideration under this part.
must make those conditions a matter Candidates in this category are consid-
of record and must apply its policy uni- ered in the commuting area where they
formly to all eligible employees. Gen- last served and, if the agency deter-
erally, full-time employees may be mines that an appropriate vacancy is
considered only for full-time positions unlikely to occur in that area during
and other-than-full-time employees the candidates period of reemploy-
only for other-than-full-time positions. ment priority, in other locations for
However, full-time employees may be which they are available.
considered for other-than-full-time po- (4) At the agencys discretion, the
sitions if there are no other-than-full- name of each former employee of the
time employees on the appropriate pri- agency who is not a preference eligible,
ority or reemployment list; and other- has been furloughed or involuntarily
than-full time employees may be con- separated from a continuing appoint-
sidered for full-time positions if there ment without delinquency or mis-
are no full-time employees on the ap- conduct, and applies for reemployment.
propriate list. Candidates in this category are consid-

(b) Priority reemployment list. Can- ered in the geographic area specified by
didates are entered on the priority re- the agency.
146
(c) Reemployment list. A reemployment list, if any, or regular employ-

ment list may be established at the ment list. When a qualified candidate
agencys discretion to include the is available on the priority list, the
names of current employees of the agency may appoint an individual who
agency and of former employees of the is not on the priority list or who has
agency who are to be considered for fu- lower standing than others on that list
ture employment and who are not eli- only when necessary to obtain an em-
gible for inclusion on the priority re- ployee for duties that cannot be taken
employment list. Employees may be over without undue interruption to the
entered on the reemployment list only agency by an individual who is entitled
for positions in which tenure and/or to reemployment priority or has higher
work schedule is no greater than that standing on the priority reemployment
of the position previously held. list than the one appointed. The agen-
(d) Order of entry. An agency shall cy must notify each individual on the
enter the names of all applicants rated priority reemployment list who is ad-
eligible under 302.302 on the appro- versely affected by an appointment
priate list (priority reemployment, re- under this paragraph of the reasons for
employment, or regular employment) the exception and must further notify
in the following order: each such individual who is a pref-
(1) When candidates have been rated erence eligible of his or her right of ap-
only for basic eligibility under 302.302(a). peal to the Merit Systems Protection
(i) Preference eligibles having a com- Board.
pensable, service-connected disability (b) Consideration of other candidates.
of 10 percent or more (designated as Except as provided in paragraphs (b)(4)
CP) unless the list will be used to fill and (b)(5) of this section, an agency
professional positions at the GS9 level shall consider applicants on the reem-
or above, or equivalent; ployment and/or regular employment
(ii) All other candidates eligible for list who have been assigned eligible
10-point veteran preference; ratings for a given position in Order A,
(iii) All candidates eligible for 5- Order B, or Order C, as described in
point veteran preference; and paragraphs (b)(1) through (b)(3) of this
(iv) Qualified candidates not eligible section. Order A must be used when the
for veteran preference. agency has not established a reemploy-
(2) When qualified candidates have ment list.
been assigned numerical scores under (1) Order A. (i) The name of each
302.302(b). (i) Preference eligibles hav- qualified preference eligible who has a
ing a compensable, service-connected compensable, service-connected dis-
disability of 10 percent or more, in the ability of 10 percent or more and is en-
order of their augmented ratings, un- titled to 10-point preference under sec-
less the list will be used to fill profes- tion 3309 of title 5, United States Code,
sional positions at the GS9 level or in the order of his/her numerical rank-
above, or equivalent; ing.
(ii) All other qualified candidates in (ii) The name of each other qualified
the order of their augmented ratings. applicant in the order of his/her numer-
At each score, qualified candidates eli- ical ranking.
gible for 10-point preference will be en- (2) Order B. (i) The name of each
tered ahead of those eligible for 5-point qualified preference eligible who has a
preference or those not eligible for vet- compensable, service-connected dis-
eran preference, and those eligible for ability of 10 percent or more and is en-
5-point preference will be entered titled to 10-point preference under sec-
ahead of those not eligible for pref- tion 3309 of title 5, United States Code,
erence. and whose name appears on the agen-
cys reemployment list, in the order of
302.304 Order of consideration. his/her numerical ranking.
(a) Consideration of priority reemploy- (ii) The name of each qualified pref-
ment candidates. An agency must con- erence eligible who has a compensable,
sider all qualified candidates on its pri- service-connected disability of 10 per-

ority reemployment list before it may cent or more and is entitled to 10-point
refer candidates from its reemploy- preference under section 3309 of title 5,
147
302.401 5 CFR Ch. I (1116 Edition)
United States Code, and whose name have not been assigned, all preference
appears on the agencys regular em- eligibles will be considered together re-
ployment list, in the order of his/her gardless of the type of preference, fol-
numerical ranking. lowed by all other candidates.
(iii) The name of each other qualified (5) Unranked order. When numerical
applicant on the agencys reemploy- scores are not assigned, the agency
ment list, in the order of his/her nu- may consider applicants who have re-
merical ranking. ceived eligible ratings for positions not
(iv) The name of each other qualified covered by paragraph (b)(4) of this sec-
applicant on the agencys regular em- tion in either of the following orders:
ployment list, in the order of his/her (i) By preference status. Under this
numerical ranking. method, preference eligibles having a
(3) Order C. (i) The name of each compensable service-connected dis-
qualified preference eligible who has a ability of 10 percent or more are con-
compensable, service-connected dis- sidered first, followed, second, by other
ability of 10 percent or more and is en- 10-point preference eligibles, third, by
titled to 10-point preference under sec- 5-point preference eligibles, and, last,
tion 3309 of title 5, United States Code, by nonpreference eligibles. Within each
and whose name appears on the agen- category, applicants from the reem-
cys reemployment list, in the order of ployment list will be placed ahead of
his/her numerical ranking. applicants from the regular employ-
(ii) The name of each other qualified ment list.
applicant on the agencys reemploy- (ii) By reemployment/regular list status.
ment list, in the order of his/her nu- Under this method, all applicants on
merical ranking. the reemployment list are considered
(iii) The name of each qualified pref- before applicants on the regular em-
erence eligible who has a compensable, ployment list. On each list, preference
service-connected disability of 10 per- eligibles having a compensable service-
cent or more and is entitled to 10-point connected disability of 10 percent or
preference under section 3309 of title 5, more are considered first, followed,
United States Code, and whose name second, by other 10-point preference
appears on the agencys regular em- eligibles, third, by 5-point preference
ployment list, in the order of his/her eligibles, and, last, by nonpreference
numerical ranking. eligibles.
(iv) The name of each other qualified
applicant on the agencys regular em- Subpart DSelection and Ap-
ployment list, in the order of his/her pointment; Reappointment;
numerical ranking. and Qualifications for Pro-
(4) Professional order. An agency shall motion
consider applicants who have been as-
signed eligible ratings for professional 302.401 Selection and appointment.
and scientific positions at the GS9 (a) Selection. When making an ap-
level and above, or equivalent, in the pointment from a priority reemploy-
following order: ment, reemployment, or regular list on
(i) Applicants on the agencys reemploy- which candidates have not received nu-
ment list, if any. If numerical scores merical scores, an agency must make
have been assigned, the applicants will its selection from the highest available
be considered in the order of their aug- preference category, as long as at least
mented scores. If numerical scores three candidates remain in that group.
have not been assigned, all preference When fewer than three candidates re-
eligibles will be considered together remain in the highest category, consider-
gardless of the type of preference, fol- ation may be expanded to include the
lowed by all other priority reemploy- next category. When making an ap-
ment candidates. pointment from a list on which can-
(ii) Applicants on the agencys regular didates have received numerical scores,
employment list. If numerical scores the agency must make its selection for
have been assigned, the applicants will each vacancy from not more than the
be considered in the order of their aug- highest three names available for ap-
mented scores. If numerical scores pointment in the order provided in
148
302.304. Under either method, an agen- ciently the duties of the position for
cy is not required to which the promotion is proposed.
(1) Accord an applicant on its pri-
ority reemployment or reemployment Subpart EAppeals
list the preference consideration re-
quired by 302.304 if the list on which 302.501 Entitlement.
the applicants name appears does not An individual who is covered by 5
contain the names of at least three U.S.C. 8101(1) and is entitled to priority
preference eligibles; or consideration under this part (see
(2) Consider an applicant who has 302.103) may appeal a violation of his/
previously been considered three times her restoration rights to the Merit Sys-
or a preference eligible if consideration tems Protection Board under the provi-
of his/her name has been discontinued sions of the Boards regulations by pre-
for the position as provided in para- senting factual information that he or
graph (b) of this section. she was denied restoration rights be-
(b) Passing over a preference applicant. cause of the employment of another
When an agency, in making an appoint- person.
ment as provided in paragraph (a) of
this section, passes over the name of a PART 304EXPERT AND
preference eligible who is entitled to
priority consideration under 302.304
CONSULTANT APPOINTMENTS
and selects a nonpreference eligible, it
Sec.
shall record its reasons for so doing,
304.101 Coverage.
and shall furnish a copy of those rea- 304.102 Definitions.
sons to the preference eligible or his/ 304.103 Authority.
her representative on request. An agen- 304.104 Determining rate of pay.
cy may discontinue consideration of 304.105 Daily and biweekly basic pay limita-
the name of a preference eligible for a tions.
position if on three occasions the agen- 304.106 Pay and leave administration.
cy has considered him/her for the posi- 304.107 Reports.
tion and has passed over his/her name 304.108 Compliance.
and recorded its reasons for so doing. AUTHORITY: 5 U.S.C. 3109.
302.402 Reappointment. SOURCE: 60 FR 45648, Sept. 1, 1995, unless

otherwise noted.
An agency may reappoint a current
or former nontemporary employee of 304.101 Coverage.
the executive branch of the Federal These regulations apply to the ap-
Government who is a preference eligi- pointment of experts and consultants
ble to a position covered by this part as Federal employees under 5 U.S.C.
without regard to the names of quali- 3109. They do not apply to the appoint-
fied applicants on the agencys priority ments of experts and consultants under
reemployment, reemployment, or reg- other employment authorities or to the
ular employment list. procurement of services by contracts
under the procurement laws.
302.403 Qualifications for promotion.
In determining qualifications for pro- 304.102 Definitions.
motion with respect to an employee For purposes of this part:
who is a preference eligible, an agency (a) An agency is an executive depart-
shall waive: ment, a military department, or an
(a) Requirements as to age, height, independent agency.
and weight unless the requirement is (b) A consultant is a person who can
essential to the performance of the du- provide valuable and pertinent advice
ties of the position; and generally drawn from a high degree of
(b) Physical requirements if, in the broad administrative, professional, or
opinion of the agency, after consid- technical knowledge or experience.
ering the recommendation of an ac- When an agency requires public advi-

credited physician, the preference eli- sory participation, a consultant also
gible is physically able to perform effi- may be a person who is affected by a
149
304.103 5 CFR Ch. I (1116 Edition)
particular program and can provide tion, and the General Schedule pay
useful views from personal experience. rates.
(c) A consultant position is one that (2) An expert or consultant who
requires providing advice, views, opin- works on a strictly intermittent basis
ions, alternatives, or recommendations may be appointed under this authority
on a temporary and/or intermittent without time limit or for any period
basis on issues, problems, or questions determined by the agency. All other
presented by a Federal official. experts and consultants must receive
(d) An expert is a person who is spe- temporary appointments. Temporary
cially qualified by education and expe- experts and consultants may be re-
rience to perform difficult and chal- appointed in the same agency only as
lenging tasks in a particular field be- provided in paragraph (c) of this sec-
yond the usual range of achievement of tion.
competent persons in that field. An ex- (b) Inappropriate use. An agency must
pert is regarded by other persons in the not use 5 U.S.C. 3109 to appoint an ex-
field as an authority or practitioner of pert or consultant:
unusual competence and skill in a pro- (1) To a position requiring Presi-
fessional, scientific, technical or other dential appointment. However, subject
activity. to the conditions of this part, an agen-
(e) An expert position is one that re- cy may appoint an individual awaiting
quires the services of a specialist with final action on a Presidential appoint-
skills superior to those of others in the ment to an expert or consultant posi-
same profession, occupation, or activ- tion.
ity to perform work on a temporary (2) To a Senior Executive Service po-
and/or intermittent basis assigned by a sition (including an FBI or DEA Senior
Federal official. For example, a micro- Executive Service position).
bial contamination specialist may (3) To perform managerial or super-
apply new test methods to identify bac- visory work (although an expert may
teria on products, a computer scientist act as team leader or director of the
may adapt advanced methods to de- specific project for which he/she is
velop a complex software system, or a hired), to make final decisions on sub-
plate maker may engrave a novel de- stantive policies, or to otherwise func-
sign. tion in the agency chain of command
(f) Intemittent employment, as defined (e.g., to approve financial transactions,
in part 340, subpart D, of this chapter, personnel actions, etc.).
means employment without a regularly (4) To do work performed by the
scheduled tour of duty. agencys regular employees.
(g) Temporary employment means em- (5) To fill in during staff shortages.
ployment not to exceed 1 year. An ex- (6) Solely in anticipation of giving
pert or consultant serving under a tem- that individual a career appointment.
porary appointment may have a full- However, subject to the conditions of
time, part-time, seasonal, or intermit- this part, an agency may appoint an in-
tent work schedule. dividual to an expert or consultant po-
(h) Employment without compensation sition pending Schedule C appointment
means unpaid service that is provided or noncareer appointment in the Sen-
at the agencys request and is to perior Executive Service.
form duties that are unclassified. It is (c) Reappointment. An agency may re-
not volunteer service. employ an expert or consultant to per-
form demonstrably different duties
304.103 Authority. without regard to the length of that in-
(a) Basic authority. (1) When author- dividuals previous expert or consult-
ized by an appropriation or other stat- ant service with the agency. Re-
ute to use 5 U.S.C. 3109, an agency may appointment to perform substantially
appoint a qualified expert or consult- the same duties is subject to the fol-
ant to an expert or consultant position lowing limits:
that requires only intermittent and/or (1) An agency may employ an expert
temporary employment. Such an ap- or consultant who works on a full-time

pointment is excepted from competi- basis for a maximum of 2 yearsi.e., on
tive examination, position classifica- an initial appointment not to exceed 1
150
year and a reappointment not to ex- appropriate rate of basic pay on an

ceed 1 additional year. hourly or daily basis, subject to the
(2) An agency may reappoint an ex- limitations described in section 304.105.
pert or consultant who works on a (b) The head of an agency, or his or
part-time or intermittent schedule in her designee, shall consider the fol-
accordance with one of the following lowing factors in setting the initial
options. The agency must determine rate of basic pay for an expert or con-
which option it will use in advance of sultant:
any reappointment and must base its (1) The level and difficulty of the
determination on objective criteria work to be performed;
(e.g., nature of duties, pay level, (2) The qualifications of the expert or
whether or not work is regularly sched- consultant;
uled). Option 1 must be applied to re- (3) The pay rates of comparable indi-
appointments of experts and consult- viduals performing similar work in
ants appointed without compensation. Federal or non-Federal sectors; and
(i) Option 1Annual service. An agen- (4) The availability of qualified can-
cy may reappoint an expert or consult- didates.
ant, with no limit on the number of re- (c) An expert or consultant appointed
appointments, as long as the individual under 5 U.S.C. 3109 may be employed
is paid for no more than 6 months (130 without pay, provided the individual
days or 1,040 hours) of work, or works agrees in advance in writing to waive
for no more than that amount of time any claim for compensation for those
without compensation, in a service services.
year. (The service year is the calendar
year that begins on the date of the in- 304.105 Daily and biweekly basic pay
dividuals initial appointment in the limitations.
agency.) An expert or consultant who (a) Unless specifically authorized by
exceeds this limit in his/her first serv- an appropriation or other statute,
ice year may be reappointed for 1 addi- agencies subject to chapter 51 and sub-
tional year. An expert or consultant chapter III of chapter 53 of title 5,
who exceeds the limit during any sub- United States Code, may not pay for
sequent service year may not be re- any 1 day an aggregate amount of pay
appointed thereafter. (including basic pay, locality pay under
(ii) Option 2Cumulative earnings. subpart F of part 531 of this chapter,
Each expert or consultant will have a and premium pay under subpart A of
lifetime limit of twice the maximum part 550 of this chapter) that exceeds
annual rate payable under the the daily equivalent of the highest rate
annualized basic pay limitations of sec- payable under 5 U.S.C. 5332that is,
tion 304.105. The agency may adjust the daily rate for GS15, step 10, under
this limit to reflect statutory increases the General Schedule (excluding local-
in basic pay rates. The agency may re- ity pay or any other additional pay).
appoint an expert or consultant until The daily rate is computed by dividing
his/her total earnings from expert or the annual GS15, step 10, rate by 2,087
consultant employment with the agen- hours to find the hourly rate of pay and
cy reach the lifetime maximum, as de- by multiplying the hourly rate of pay
termined by using the applicable max- by 8 hours.
imum salary rate. At that point, the (b) Unless specifically authorized by
employment must be terminated. an appropriation or other statute, an
(3) OPM may authorize reappoint- expert or consultant shall not be paid
ment of an expert or consultant as an for any biweekly pay period an aggre-
exception to the limits in the section gate amount of pay (including basic
when necessitated by unforeseen and pay, locality pay under subpart F of
unusual circumstances. part 531 of this chapter, and premium
pay under subpart A of part 550 of this
304.104 Determining rate of pay. chapter) in excess of the biweekly rate
(a) The rate of basic pay for experts of pay for GS15, step 10, under the
and consultants is set by administra- General Schedule (excluding locality

tive action. The head of an agency, or pay or any other additional pay). The
his or her designee, must determine the biweekly rate is computed by dividing
151
304.106 5 CFR Ch. I (1116 Edition)
the annual GS15, step 10, rate by 2,087 (g) Experts and consultants with a
hours to find the hourly rate of pay and regularly scheduled tour of duty (i.e.,
by multiplying the hourly rate of pay not intermittent) are entitled to sick
by 80 hours. and annual leave in accordance with
chapter 63 of title 5, United States
304.106 Pay and leave administra- Code, and to pay for any holiday occur-
tion. ring on a workday on which they per-
(a) The employing agency has the au- form no work, provided that workday
thority to adjust the pay of experts and is part of the basic workweek. Those
consultants after initial appointment employed on an intermittent basis do
and to establish appropriate policies not earn leave and are not entitled to
governing the amount and timing of paid holidays.
any such adjustments, subject to the
limitations of 304.105. In addition to 304.107 Reports.
the factors listed in 304.104(b), the As required by 5 U.S.C. 3109(e), each
agency may consider factors such as agency shall report to the Office of
job performance, contributions to Personnel Management on an annual
agency mission, and the general pay in- basis:
creases granted to other Federal em- (a) The number of days the agency
ployees. Experts and consultants are employed each paid expert or consult-
not entitled to receive automatic ad- ant; and
justments in their rates of basic pay at (b) The total amount the agency paid
the time of general pay increases under each expert or consultant so employed.
5 U.S.C. 5303 unless specifically pro- (Do not include payments for travel
vided for in the official appointing doc- and related expenses.)
ument. In the absence of such auto-
matic entitlement, any pay adjust- 304.108 Compliance.
ments are at the agencys discretion. (a) Each agency using 5 U.S.C. 3109
(b) Experts and consultants paid on a must establish and maintain a system
daily rate basis are not entitled to of controls and oversight necessary to
overtime pay under section 5542 of title assure compliance with 5 U.S.C. 3109
5, United States Code. Otherwise, ex- and these regulations. The system
perts and consultants qualify for pre- must include
mium pay under subchapter V of chap-
(1) Appropriate training and informa-
ter 55 of title 5, United States Code, if
tion procedures to ensure that officials
they meet the applicable eligibility re-
and employees using the authority un-
quirements (including the requirement
derstand the statutory and regulatory
that an employee have a regularly
requirements; and
scheduled tour of duty, where applica-
(2) Appropriate provision for review
ble).
of expert and consultant appointments.
(c) Experts and consultants may be
(b) OPM will, as necessary
entitled to overtime pay under the Fair
Labor Standards Act if they are non- (1) Review agency employment of ex-
exempt under OPM regulations imple- perts and consultants and agency con-
menting that Act for Federal employ- trols and oversight to determine com-
ees. (See 5 CFR part 551). pliance; and
(d) An expert or consultant may be (2) Issue instructions and guidance to
paid for service on an intermittent agencies on employing experts and con-
basis in more than one expert or consultants and on reporting procedures.
sultant position, provided the pay is
not received for the same period of PART 305 [RESERVED]
time (5 U.S.C. 5533(d)(1)).
(e) Experts and consultants are sub- PART 307VETERANS RECRUITMENT
ject to the provisions of 5 U.S.C. 8344 APPOINTMENTS
and 8468 on reduction of basic pay by
the amount of annuity received. Sec.
(f) Experts and consultants are sub- 307.101 Purpose.

ject to the provisions of 5 U.S.C. 5532 307.102 Definitions.
on reduction of retired military pay. 307.103 Nature of VRAs.
152
307.104 Treatment of individuals serving the position with or without reason-
under VRAs. able accommodation for an individual
307.105 Appeal rights. with a disability.
AUTHORITY: 5 U.S.C. 3301, 3302; E.O. 11521, 3 Recently separated veteran, as defined
CFR, 1970 Comp., p. 912; 38 U.S.C. 4214. in 38 U.S.C. 4211(6), means any veteran
SOURCE: 70 FR 72066, Dec. 1, 2005, unless during the three-year period beginning
otherwise noted. on the date of such veterans discharge
or release from active duty.
307.101 Purpose. Substantially continuous service is de-
This part implements 38 U.S.C. 4214 fined in 5 CFR 315.201(b)(3).
and Executive Order 11521, which au- War means any armed conflict de-
thorizes agencies to appoint qualified clared by Congress as such.
covered veterans to positions in the
competitive service under Veterans Re- 307.103 Nature of VRAs.
cruitment Appointments (VRAs) with- VRAs are excepted appointments,
out regard to the competitive exam- made without competition, to positions
ining system. otherwise in the competitive service.
The veterans preference procedures of
307.102 Definitions. part 302 of this chapter apply when
For purposes of this part there are preference eligible candidates
Agency, as defined in 38 U.S.C. 4211(5), being considered for a VRA. Qualified
means any agency of the Federal Gov- covered veterans who were separated
ernment or the District of Columbia, under honorable conditions may be ap-
including any Executive agency as de- pointed to any position in the competi-
fined in section 105 of title 5, and the tive service at grade levels up to and
United States Postal Service and Post- including GS11 or equivalent, provided
al Rate Commission. they meet the qualification standards
Covered veterans, as defined in 38 for the position. To be eligible for a
U.S.C. 4212(a)(3), means any of the fol- VRA as a covered veteran under para-
lowing: graph (2) or (3) of the definition of that
(1) Disabled veterans; term in 307.102, the veteran must be in
(2) Veterans who served on active receipt of the appropriate campaign
duty in the Armed Forces during a war badge, expeditionary medal, or AFSM.
or in a campaign or expedition for For purposes of a VRA, any military
which a campaign badge has been au- service is qualifying at the GS3 level
thorized; or equivalent. Upon satisfactory com-
(3) Veterans who, while serving on pletion of 2 years of substantially con-
active duty with the Armed Forces, tinuous service, the incumbents VRA
participated in a United States mili- must be converted to a career or career
tary operation for which an Armed conditional appointment. An indi-
Forces Service Medal (AFSM) was vidual may receive more than one VRA
awarded pursuant to Executive Order appointment as long as the individual
12985 (61 FR 1209); and meets the definition of a covered vet-
(4) Recently separated veterans. eran at the time of appointment.
Disabled veteran, as defined in 38
U.S.C. 4211 means: 307.104 Treatment of individuals
(1) A veteran who is entitled to com- serving under VRAs.
pensation (or who, but for the receipt (a) Because VRAs are made to posi-
of military retired pay, would be enti- tions otherwise in the competitive
tled to compensation) under laws ad- service, the incumbents, like competi-
ministered by the Secretary of Vet- tive service employees, may be reas-
erans Affairs; or signed, promoted, demoted, or trans-
(2) A person who was discharged or ferred in accordance with the provi-
released from active duty because of a sions of part 335 of this chapter.
service-connected disability. (b) A veteran with less than 15 years
Qualified, as defined in 38 U.S.C. of education must receive training or
4212(a)(3) with respect to employment education prescribed by the agency.

in a position, means having the ability (c) Appointments are subject to in-
to perform the essential functions of vestigation by OPM. A law, Executive
153
307.105 5 CFR Ch. I (1116 Edition)
order, or regulation that disqualifies a as part of an agency program estab-

person for appointment in the competi- lished for the purpose of providing edu-
tive service also disqualifies a person cational experience for the student.
for a VRA. Such service is to be uncompensated
(d) The Veterans Recruitment Ap- and will not be used to displace any
pointment date for a recently separated employee or to staff a position which is
veteran must occur before the end of a normal part of the agencys work
the 3-year eligibility period and may force.
not be extended.
308.102 Eligibility and status.
307.105 Appeal rights.
Individuals serving under VRAs have (a) Minimum Age. The selection of
the same appeal rights as excepted students to participate under the pro-
service employees under parts 432 and gram should be in conformance with ei-
752 of this chapter. In addition, as es- ther Federal, State, or local laws and
tablished in 315.806 of this chapter, standards governing the employment
any individual serving under a VRA, of minors.
whose employment under the appoint- (b) Status. A student participating
ment is terminated within 1 year after under an agency volunteer program is
the date of such appointment, has the not considered to be a Federal em-
same right to appeal that termination ployee for any purposes other than in-
as a career or career-conditional em- jury compensation or laws related to
ployee has during the first year of em- the Tort Claims Act. Service is not
ployment. creditable for leave accrual or any
other employee benefits.
PART 308VOLUNTEER SERVICE
308.103 Authority.
Sec.
308.101 Definitions. Section 301 of the Civil Service Re-
308.102 Eligibility and status. form Act of 1978, Public Law 95454, au-
308.103 Authority. thorized Federal departments and
AUTHORITY: 5 U.S.C. 3111. agencies to establish programs de-
signed to provide educationally related
SOURCE: 44 FR 51183, Aug. 31, 1979, unless
otherwise noted. work assignments for students in non-
pay status.
In this part: Student is an individual PART 310EMPLOYMENT OF
who is enrolled not less than half-time RELATIVES
in a high school, trade school, tech-
nical or vocational institute, junior Sec.
college, college, university or other ac- 310.101 Legal restrictions on public officials
credited educational institution. An in- in the employment of relatives.
dividual who is a student is deemed not 310.102 Exceptions to the legal restrictions
to have ceased to be a student during on the employment of relatives.
an interim between school years if the
interim is not more than 5 months and
if such individual shows to the satisfac- SOURCE: 70 FR 20457, Apr. 20, 2005, unless
tion of the agency that the individual otherwise noted.
has a bona fide intention of continuing
to pursue a course of study or training 310.101 Legal restrictions on public
in the same or different educational in- officials in the employment of rel-
stitution during the school semester atives.
(or other period into which the school Section 3110 of title 5, United States
year is divided) immediately after the Code, sets forth the legal restrictions
interim. on the employment of relatives.
Volunteer Service under the Act is
limited to services performed by a stu-

dent, with the permission of the insti-
tution at which the student is enrolled,
154
310.102 Exceptions to the legal re- Subpart FCareer or Career-Conditional

strictions on the employment of rel- Appointment Under Special Authorities
atives.
315.601 Appointment of former employees of
Subsection (d) of 5 U.S.C. 3110 author- the Canal Zone Merit System or Panama
izes the Office of Personnel Manage- Canal Employment System.
ment to prescribe regulations author- 315.602 Appointment based on service in the
izing the temporary employment of Office of the President or Vice President
or on the White House Staff.
relatives, in certain conditions, not-
315.603 Appointment based on former in-
withstanding the restrictions. This reg- cumbency of a position brought into the
ulation sets forth exceptions to the re- competitive service.
strictions. When necessary to meet ur- 315.604 Employment of disabled veterans
gent needs resulting from an emer- who have completed a training course
gency posing an immediate threat to under Chapter 31 of title 38, United
life or property, or a national emer- States Code.
315.605 Appointment of former ACTION vol-
gency as defined in 230.402(a)(1) of this
unteers.
title, a public official may employ rel- 315.606 Noncompetitive appointment of cer-
atives to meet those needs without retain present and former Foreign Service
gard to the restrictions on the employ- officers and employees.
ment of relatives in 5 U.S.C. 3110. Such 315.607 Noncompetitive appointment of
appointments are temporary and may present and former Peace Corps per-
not exceed 30 days, but the agency may sonnel.
315.608 Noncompetitive appointment of cer-
extend such an appointment for one ad-
tain former overseas employees.
ditional 30-day period if the emergency 315.609 Appointment based on service in
need still exists at the time of the ex- United States positions of the Panama
tension. Canal Commission.
315.610 Noncompetitive appointment of cer-
tain National Guard technicians.
PART 315CAREER AND CAREER- 315.611 Appointment of certain veterans
CONDITIONAL EMPLOYMENT who have competed under agency merit
promotion announcements.
Subpart A [Reserved] 315.612 Noncompetitive appointment of cer-
tain military spouses.
Subpart BThe Career-Conditional
Employment System Subpart GConversion to Career or Ca-
reer-Conditional Employment From
Sec. Other Types of Employment
315.201 Service requirement for career ten-
ure. 315.701 Incumbents of positions brought
315.202 Conversion from career-conditional into the competitive service.
to career tenure. 315.702 Employees serving without competi-
tive examination in rare cases.
315.703 Employees formerly reached on a
Subpart CCareer or Career-Conditional
register.
Employment From Registers 315.704 Conversion to career employment
315.301 Tenure on appointment from reg- from indefinite or temporary employ-
ment.
ister.
315.705 Employees serving under transi-
315.302 Acquisition of competitive status.
tional or veterans recruitment appoint-
ments.
Subpart DCareer or Career-Conditional 315.706 Certain nonpermanent employees of
Employment by Reinstatement the Department of Energy.
315.707 Disabled veterans.
315.401 Reinstatement. 315.708 [Reserved]
315.402 Tenure on reinstatement. 315.709 Appointment for Persons With Dis-
315.403 Acquisition of competitive status. abilities.
315.710 Professional and administrative ca-
Subpart ECareer or Career-Conditional reer employees serving under Schedule B
Employment by Transfer appointments.
315.711 Readers, interpreters, and personal
315.501 Transfer. assistants serving under Schedule A ap-

315.502 Tenure on transfer. pointments.
315.503 Acquisition of competitive status. 315.712 [Reserved]
155
315.201 5 CFR Ch. I (1116 Edition)
315.713 Conversion based on service in a Subpart A [Reserved]
Pathways Program under part 362 of this
chapter.
315.725 Disqualifications. Subpart BThe Career-
Conditional Employment System
Subpart HProbation on Initial
Appointment to a Competitive Position 315.201 Service requirement for ca-
reer tenure.
315.801 Probationary period; when required.
315.802 Length of probationary period; cred- (a) Service requirement. A person em-
iting service. ployed in the competitive service for
315.803 Agency action during probationary other than temporary, term, or indefi-
period (general). nite employment is appointed as a ca-
315.804 Termination of probationers for un- reer or career-conditional employee
satisfactory performance or conduct. subject to the probationary period re-
315.805 Termination of probationers for con- quired by subpart H of this part. Ex-
ditions arising before appointment. cept as provided in paragraph (c) of
315.806 Appeal rights to the Merit Systems
Protection Board.
this section, an employee must serve 3
years of substantially continuous cred-
Subpart IProbation on Initial Appoint- itable service as defined in paragraph
ment to a Supervisory or Managerial (b) of this section to become a career
Position employee.
(b) Creditable service. Unless otherwise
315.901 Statutory requirement. approved by OPM, the service required
315.902 Definitions. for career tenure must begin and end
315.903 Coverage. with nontemporary employment in the
315.904 Basic requirement.
315.905 Length of the probationary period.
competitive service except as described
315.906 Crediting service toward completion in paragraph (1) of this subsection,
of the probationary period. must include service under an appoint-
315.907 Failure to complete the proba- ment based on or leading to competi-
tionary period. tive status, be substantially contin-
315.908 Appeals. uous, and total 3 years, as follows:
315.909 Relationship to other actions. (1) Nontemporary employment. To be
AUTHORITY: 5 U.S.C. 1302, 2301, 2302, 3301, creditable, the 3-year period of service
and 3302; E.O. 10577, 3 CFR, 19541958 Comp. p. must begin with one of the following:
218, unless otherwise noted; and E.O. 13162. (i) Nontemporary appointment in the
Secs. 315.601 and 315.609 also issued under 22 competitive service. For this purpose,
U.S.C. 3651 and 3652. nontemporary appointment includes a
Secs. 315.602 and 315.604 also issued under 5 career-conditional appointment; career
U.S.C. 1104.
appointment; reinstatement under sub-
Sec. 315.603 also issued under 5 U.S.C. 8151.
Sec. 315.605 also issued under E.O. 12034, 3 part D of this part; and transfer under
CFR, 1978 Comp. p.111. subpart E of this part. The 3-year pe-
Sec. 315.606 also issued under E.O. 11219, 3 riod may also begin, but not end, with
CFR, 19641965 Comp. p. 303. status quo employment under subpart
Sec. 315.607 also issued under 22 U.S.C. 2506. G of part 316 of this chapter, and over-
Sec. 315.608 also issued under E.O. 12721, 3 seas limited appointment of indefinite
CFR, 1990 Comp. p. 293. duration or overseas limited term ap-
Sec. 315.610 also issued under 5 U.S.C. pointment under part 301 of this chap-
3304(c).
Sec. 315.611 also issued under 5 U.S.C.
ter. The 3-year period also may have
3304(f). begun with permanent employment
Sec. 315.612 also issued under E.O. 13473. under now obsolete appointing authori-
Sec. 315.708 also issued under E.O.13318, 3 ties such as probational, war service
CFR, 2004 Comp. p. 265. indefinite, and emergency indefinite
Sec. 315.710 also issued under E.O. 12596, 3 appointments. Determinations of
CFR, 1987 Comp. p. 229. whether an obsolete authority provides
Subpart I also issued under 5 U.S. C. 3321, the basis for creditable service may be
E.O. 12107, 3 CFR, 1978 Comp. p. 264.
obtained from OPM;
SOURCE: 33 FR 12418, Sept. 4, 1968, unless (ii) The acquisition of competitive
otherwise noted.
status on January 23, 1955, under provi-

EDITORIAL NOTE: Nomenclature changes to sions of Executive Order 10577, while
part 315 appear at 70 FR 72067, Dec. 1, 2005. serving in the excepted service;
156
(iii) Nontemporary appointment from tervening term appointment, and with-

a civil service register to a position in out a break in service of one day.
the excepted service before January 23, (x) The date of veterans recruitment
1955; appointment (VRA), provided the ap-
(iv) Nontemporary appointment to a pointment is converted to career or ca-
position in the District of Columbia reer-conditional appointment under
Government before January 23, 1955, 315.705 of this chapter, or the person is
evidencing selection in regular order appointed from a civil service register
from a civil service register used to without a break in service while serv-
certify for probational appointment in ing under a VRA;
the Federal service. Appointment from (xi) The date of nontemporary ap-
a register maintained only for District pointment to the Postal Career Service
of Columbia Government would not or the Postal Rate Commission after
meet this condition; July 1, 1971, provided the individual is
(v) Nontemporary appointment to an appointed to a career or career-condi-
excepted position, provided the employ- tional appointment under 39 U.S.C.
ees excepted position was brought into 1006;
the competitive service and, on that (xii) The date of nontemporary ap-
basis, the employee acquired competi- pointment under Schedule A,
tive status or was converted to a career 213.3102(u) of this chapter, of a person
or career-conditional appointment; with mental retardation, a severe phys-
(vi) Nontemporary appointment to a ical disability, or a psychiatric dis-
nonappropriated fund (NAF) position in ability, provided the employees ap-
or under the Department of Defense, pointment is converted to a career or
provided the employees NAF position was career-conditional appointment under
brought into the competitive service and, 315.709;
on that basis, the employee acquired (xiii) The date of appointment as a
competitive status or was converted to Participant in the Presidential Man-
a career or career-conditional appoint- agement Fellows Program under the
ment; provisions of Executive Order 13318,
(vii) Nontemporary excepted or non- provided the employees appointment
appropriated fund appointment, For- is converted without a break in service
eign Service appointment, or appoint- to career or career-conditional ap-
ment in the Canal Zone Merit System, pointment under 315.708 as in effect
provided the employee is appointed or immediately before the effective date
transferred to a competitive service po- of the regulations that removed and re-
sition under the terms of an inter- served that section;
change agreement with another merit (xiv) The date of temporary appoint-
system under 6.7 of this chapter, ment pending establishment of a reg-
under Executive Order 11219 as amend- ister, provided the appointment was
ed by Executive Order 12292, or under converted to career executive assign-
Executive Order 11171; ment;
(viii) The date of appointment to a (xv) The date of temporary appoint-
position on the White House Staff or in ment pending establishment of a reg-
the immediate office of the President ister (TAPER), provided:
or Vice President, provided the service (A) The employee is serving on or
has been continuous and the individual after February 8, 1968, and his or her
was appointed to a competitive service TAPER employment is changed by con-
position under 315.602 of this chapter; version or by an appointment without
(ix) The date of nontemporary ex- a break in service of a single workday
cepted appointment under 213.3202(b) to a career or career-conditional ap-
of this chapter (the former Student Ca- pointment from a civil service register;
reer Experience Program) as in effect and
immediately before the effective date (B) His or her TAPER service has
of the regulations removing that para- been continuous without a break in
graph, provided the students appoint- service of more than 30 calendar days
ment is converted to career or career- or without interruption for more than

conditional appointment under Execu- 30 calendar days by other than status
tive Order 12015, with or without an in- quo or indefinite employment in the
157
315.201 5 CFR Ch. I (1116 Edition)
competitive service, or military service vening term appointment, and without

provided he or she is reemployed as a a break in service of one day.
TAPER employee within 120 days after (2) Competitive status. Career tenure is
separation under honorable conditions acquired only under a permanent ap-
from the military service; pointment in the competitive service
(xvi) The starting date of National that provides or leads to competitive
Guard technician service performed be- status.
fore January 1, 1969, provided the per- (3) Substantially continuous service. A
son was employed as a National Guard single break in creditable service of
technician on December 31, 1968, and more than 30 calendar days will require
his or her position was brought into the beginning of a new 3-year period,
the competitive service on January 1, except for:
1969; (i) Breaks incident to entry into or
(xvii) The starting date of active return from military service and re-
service as an administrative enrollee in turn from defense transfer, provided
the United States Merchant Marine the person is reemployed in Federal
Academy; and service during his or her period of stat-
(xviii) The date on which an em- utory or regulatory restoration or re-
ployee became eligible for benefits employment rights;
under Public Law 83121, unless an ear- (ii) Breaks incident to transfer to and
lier date can be chosen because of prior from an international organization,
nontemporary service. provided the person is reemployed in
(xix) Appointment as a career intern Federal service under subpart C of part
under Schedule B, 213.3202(o) of this 352 of this chapter;
chapter, provided the employees ap- (iii) Breaks during which an em-
pointment is converted to career or ca- ployee was eligible to receive injury
reer-conditional appointment under compensation under the Office of
315.712 as in effect immediately before Workers Compensation Programs, pro-
the effective date of the regulations vided the person is reemployed under
that removed and reserved that sec- part 353 of this chapter;
tion; (iv) Breaks incident to a restoration
(xx) The date of appointment as a to correct an unjustified or unwar-
Pathways Participant in the Internship ranted separation;
Program under Schedule D, 213.3402(a) (v) Breaks following separation by re-
of this chapter, provided the employ- duction in force of employees who are
ees appointment is converted to career eligible for entry on the reemployment
or career-conditional appointment priority list under subpart B of part 330
under 315.713(a), with or without an of this chapter, provided the person is
intervening term appointment, and reemployed in Federal service during
without a break in service of one day; the period of his or her reemployment
(xxi) The date of appointment as a priority;
Pathways Participant in the Recent (vi) Breaks following involuntary
Graduates Program under Schedule D, separation without personal cause of
213.3402(b) of this chapter, provided employees who are eligible for a non-
the employees appointment is con- competitive appointment based on an
verted to career or career-conditional interchange agreement with another
appointment under 315.713(b), with or merit system under 6.7 of this chap-
without an intervening term appoint- ter, provided the person is employed in
ment, and without a break in service of the competitive service under the
one day; and agreement during the period of his or
(xxii) The date of appointment as a her eligibility;
Pathways Participant in the Presi- (vii) Breaks incident to volunteer
dential Management Fellows Program service or training required after en-
under Schedule D, 213.3402(c) of this rollment in volunteer service provided
chapter, provided the employees ap- the person is reemployed in Federal
pointment is converted to career or ca- service within 90 days of the termi-

reer-conditional appointment under nation of volunteer service or training.
315.713(c), with or without an inter- This provision applies to Peace Corps,
158
VISTA, or other ACTION full-time pro- (B) Intermittent service on or after

grams that are potentially creditable July 1, 1962 is counted as 1 day for each
in subsequent Federal employment for day an employee is in pay status, re-
length of service for leave, reduction in gardless of the number of hours for
force, and retirement purposes; which the employee is actually paid on
(viii) Breaks incident to employment a given day. For this purpose, 780 days
in a nonfederal organization that oc- in pay status are equivalent to 3 years
curred because a Federal function was service, but the service requirement
transferred to the organization by law, may not be satisfied in less than 3
provided the employee moved as a re- years of calendar time.
sult of the transfer of function without (C) Part-time and intermittent serv-
a break in service of more than 3 days ice before July 1, 1962, is counted based
to the nonfederal organization and is on the number of hours actually em-
reemployed by nontemporary appoint- ployed, including any paid leave. For
ment in the competitive service with- this purpose, 6,240 hours of paid time
out a break in service of more than 30 are equivalent to 3 years service, but
calendar days after separation from the the service requirement may not be
nonfederal organization; satisfied in less than 3 years of cal-
(ix) Employment with the District of endar tine.
Columbia Government after January 1, (ii) Nonpay status on the rolls and time
1980 (the date the District implemented off the rolls. No credit is given for peri-
an independent merit personnel system ods of nonpay status and time off the
not tied to the Federal system), pro- rolls, except under the following condi-
vided the person was a District em- tions:
ployee on December 31, 1979, was con- (A) Credit is given for the first 30 cal-
verted to the District system on Janu- endar days of each period of nonpay
ary 1, 1980, and is reemployed by nonstatus on the rolls during full-time em-
temporary appointment in the com- ployment, or during part-time employ-
petitive service without a break in ment on or after July 1, 1962. On this
service of more than 30 calendar days same basis, a seasonal employee re-
after separation from District employ- ceives credit for the first 30 calendar
ment; and days of each period of nonduty/nonpay
(x) Breaks that occur when a career- status. Nonpay status in excess of 30
conditional employee leaves Federal days extends the 3-year waiting period
employment to accompany a spouse or by the amount of the excess;
parent (if the employee is their unmar- (B) Full credit is given for periods of
ried child under 21 years of age) who is nonpay status and time off the rolls in-
a member of the Armed Forces or a cident to entry into and return from
Federal civilian employee on official military service and return from de-
assignment to an overseas post of duty, fense transfer, provided the person is
provided the employees separation reemployed in Federal service during
from employment occurs no more than the period of his or her statutory or
90 calendar days prior to going over- regulatory restoration or reemploy-
seas and reinstatement occurs while ment rights;
overseas or within 180 calendar days of (C) Full credit is given for periods of
return to the United States. Overseas nonpay status and time off the rolls in-
posts of duty are duty locations out- cident to transfer to and return from
side the 50 States of the United States, an international organization, provided
the District of Columbia, Guam, Puer- the person is reemployed in Federal
to Rico, and the Virgin Islands. service under subpart C of part 352 of
(4) Crediting service. An employees this chapter;
creditable service must total 3 years, (D) Full credit is given for periods of
under the following conditions. nonpay status during which an em-
(i) Work schedule. (A) Full-time serv- ployee was eligible to receive continu-
ice, and part-time service on or after ation of pay or injury compensation
July 1, 1962, are counted as calendar under the Office of Workers Compensa-
time from the date of appointment to tion Programs. Full credit also is given
date of separation. for periods of time off the rolls during
159
315.201 5 CFR Ch. I (1116 Edition)
which an employee was eligible to re- (iv) Intervening service. Certain types
ceive injury compensation under the of service that ordinarily are not cred-
Office of Workers Compensation Pro- itable are counted when they intervene
grams, provided the person is reem- between two periods of creditable serv-
ployed under part 353 of this chapter. ice without a single break in service in
(E) Credit is given for up to 30 cal- excess of 30 calendar days, excepted as
endar days for time off the rolls that provided in subparagraph (H) of his
follows separation by reduction in paragraph. Under these conditions,
force of employees who are eligible for credit is given for periods of service:
entry on the reemployment priority (A) In the excepted service of the
list under subpart B of part 330 of this
Federal executive branch, including
chapter, provided the person is reem-
employment in nonappropriated fund
ployed in Federal service during the
period of his or her reemployment pri- positions in or under any Federal agen-
ority; and cy;
(F) Credit is given for up to 30 cal- (B) Under temporary, term, or other
endar days for time off the rolls that nonpermanent employment in the Fed-
follow involuntary separation without eral competitive service;
personal cause of employees who are (C) In the Senior Executive Service;
eligible for a noncompetitive appoint- (D) In the Federal legislative branch;
ment based on an interchange agree- (E) In the Federal judicial branch;
ment with another merit system under (F) In the armed forces;
6.7 of this chapter, provided the per- (G) In the District of Columbia Gov-
son is employed in the competitive ernment through December 31, 1979.
service under the agreement during the For an employee on the District rolls
period of his or her eligibility. on December 31, 1979, who converted on
(iii) Restoration based on unwarranted January 1, 1980, to the District inde-
or improper actions. (A) Based on a find-
pendent personnel system, credit also
ing made before March 30, 1966, that a
is given for service between January 1,
furlough, suspension, or separation was
unwarranted or improper, an employee 1980, and September 25, 1980. Otherwise,
restored to duty receives full calendar service in the District of Columbia
time credit for the period of furlough, Government on or after January 1,
suspension, or separation if he or she 1980, is not creditable as intervening
was eligible to receive retroactive pay service; and
under 5 U.S.C. 559193 (formerly Pub. L. (H) Performed overseas by family
80623) or 5 U.S.C. 5594 (formerly Pub. members, as defined by 315.608 of this
L. 81733). chapter. Such service is creditable to-
(B) Based on a finding made on or ward career tenure if it intervenes be-
after March 30, 1966, that a furlough, tween two periods of creditable service
suspension, or separation was unwar- without a single break in excess of 180
ranted or improper, an employee re- days.
stored to duty receives full calendar (c) Exceptions from service requirement.
time credit for the period of furlough, The service requirement for career ten-
suspension, or separation for which he ure does not apply to:
or she is eligible to receive back pay. If (1) An appointment to a position re-
the employee is restored to duty at a quired by law to be filled on a perma-
date later than the original adverse ac- nent basis, or a conversion under this
tion, credit for intervening periods of
part while the employee is serving in
nonpay status or breaks in service is
such a position;
given in accordance with other provi-
sions of this subsection. If the em- (2) An appointment from a register of
ployee had been properly separated a person who once completed the serv-
from the rolls of the agency before a ice requirement for career tenure;
finding was made that the adverse ac- (3) An appointment under 315.601 of
tion was unwarranted or improper, the a former Canal Zone Merit System em-
ployee who completed the service re-
correction and additional service credit

given the employee may not extend be- quirement for career tenure under that
yond the date of the proper separation. system; or
160
(4) The reinstatement of a person completed the service requirement for

who once completed the service re- career tenure. Except as provided in
quirement for career tenure. paragraph (c) of this section, an agency
may reinstate a nonpreference eligible
FR 34428, Aug. 4, 1978; 59 FR 68104, Dec. 30, who has not completed the service re-
1994; 60 FR 53504, Oct. 16, 1995; 62 FR 63630, quirement for career tenure only with-
Dec. 2, 1997; 63 FR 57046, Oct. 26, 1998; 65 FR in 3 years following the date of separa-
78078, Dec. 14, 2000; 70 FR 28779, May 19, 2005; tion. This time limit begins to run
70 FR 44221, Aug. 2, 2005; 71 FR 42245, July 26, from the date of separation from the
2006; 77 FR 28214, May 11, 2012] last position in which the person
served under a career appointment, ca-
315.202 Conversion from career-con-
ditional to career tenure. reer-conditioned appointment, indefi-
nite appointment in lieu of reinstate-
A career-conditional employee be- ment, or an appointment under which
comes a career employee automati- he or she acquired competitive status.
cally on completion of the service re- (c) Extension of time limit. Intervening
quirement for career tenure. service of the following types extends
the 3-year limit on reinstatement of
Subpart CCareer or Career- eligibility of a nonpreference eligible
Conditional Employment From who has not completed the service re-
Registers quirement for career tenure:
(1) Employment in Federal competi-
315.301 Tenure on appointment from tive service positions under temporary,
register. term, indefinite, or other nonperma-
(a) Except as provided in paragraph nent appointment.
(b) of this section, an eligible ap- (2) Employment in Federal excepted,
pointed from a register for other than nonappropriated fund, or Senior Execu-
temporary or term employment be- tive Service positions in the executive
comes a career-conditional employee. branch;
(b) An eligible appointed from a reg- (3) Employment in the Federal judi-
ister for other than temporary or term cial branch or in the executive or judi-
employment becomes a career em- cial branches of the insular possessions
ployee when he is excepted from the of the United States;
service requirement for career tenure (4) Employment in Federal legisla-
by 315.201(c). tive branch;
(5) Employment in an international
315.302 Acquisition of competitive
status. governmental organization or a terri-
torial, State, county, municipal, or for-
An employee appointed as provided eign government in a position in which
in 315.301 acquires a competitive sta- the agency determines that the pro-
tus automatically on completion of posed appointee acquired valuable
probation. training and experience for the posi-
tion to be filled;
Subpart DCareer or Career- (6) A substantially full-time training
Conditional Employment by course in any educational institution
Reinstatement of recognized standing when the agency
finds that the proposed appointee ac-
315.401 Reinstatement. quired valuable training or experience
(a) Agency authority. Subject to part for the position to be filled;
335 of this chapter and paragraph (b) of (7) Compulsory service on work of na-
this section, an agency may appoint by tional importance under civilian direc-
reinstatement to a competitive service tion as required by the Military Selec-
position a person who previously was tive Service Act;
employed under career or career-condi- (8) Active military duty terminated
tional appointment (or equivalent). under honorable conditions;
(b) Time limit. There is no time limit (9) Service with the District of Co-
on the reinstatement eligibility of a lumbia Government prior to January 1,
preference eligible or a person who 1980. In addition, for an employee on
161
315.402 5 CFR Ch. I (1116 Edition)
the District Government rolls on De- petitive status automatically on com-

cember 31, 1979, who was converted on pletion of probation.
January 1, 1980, to the District of Co-
lumbia merit personnel system, contin- Subpart ECareer or Career-Con-
uous District Government service after ditional Employment by Trans-
that date also extends the 3-year pe-
riod;
fer
(10) Periods of nonemployment dur- 315.501 Transfer.
ing which a person is eligible for injury
compensation under the Office of Subject to part 335 of this chapter, an
Workers Compensation Programs; agency may appoint by transfer to a
(11) Periods of nonemployment dur- competitive service position, without a
ing which a person receives disability break in service of a single workday, a
retirement under the Civil Service or current career or career-conditional
Federal Employees Retirement Sys- employee of another agency.
tem; [60 FR 53504, Oct. 16, 1995]
(12) Employment by a nonfederal or-
ganization when the persons function 315.502 Tenure on transfer.
was transferred to the nonfederal orga- (a) General rule. Except as provided in
nization on a contract basis or by law paragraph (b) of this section, a career
or executive order; employee who transfers remains a ca-
(13) Volunteer service and training reer employee and a career-conditional
required prior to actual enrollment as employee who transfers remains a ca-
a volunteer with Peace Corps, VISTA, reer-conditional employee.
and other programs of the Corporation (b) Exceptions. (1) A career-condi-
for National and Community Service if tional employee who transfers to a po-
it begins within the period the person sition required by law to be filled on a
is eligible for reinstatement; and permanent basis becomes a career em-
(14) Periods of overseas residence dur-
ployee.
ing which a spouse or unmarried child,
(2) A career employee who transfers
under 21 years of age, of a member of
from a position required by law to be
the Armed Forces or of a Federal civil-
filled on a permanent basis becomes a
ian employee is accompanying that in-
career-conditional employee unless he
dividual on official assignment to an
or she has completed the service re-
overseas post of duty. Overseas posts of
quirement for career tenure.
duty are duty locations outside the 50
States of the United States, the Dis- [60 FR 53504, Oct. 16, 1995]
trict of Columbia, Guam, Puerto Rico,
and the Virgin Islands. 315.503 Acquisition of competitive
status.
FR 68107, Dec. 30, 1994; 60 FR 53504, Oct. 16, An employee who was serving proba-
1995] tion when he was appointed under
315.501 acquires a competitive status
315.402 Tenure on reinstatement. automatically on completion of proba-
(a) Except as provided in paragraph tion.
(b) of this section, a person who is rein-
stated becomes a career-conditional Subpart FCareer or Career-Con-
employee. ditional Appointment Under
(b) A person who is reinstated be- Special Authorities
comes a career employee when he has
completed the service requirement for 315.601 Appointment of former em-
career tenure or is excepted from it by ployees of the Canal Zone Merit
315.201(c). System or Panama Canal Employ-
ment System.
315.403 Acquisition of competitive (a) Agency authority. This section
status. may be used by an agency to appoint
A person who was serving probation noncompetitively, for other than tem-
when he was separated and who is rein- porary or term employment, a United
stated under 315.401 acquires a com- States citizen separated from a career
162
or career-conditional appointment or Panama Canal Employment System

under the Canal Zone Merit System, through the date of noncompetitive ap-
which was in effect before March 31, pointment under this section, inclu-
1982, or under the Panama Canal Em- sive, does not include any break in
ployment System, which became effec- service of more than 30 days and totals
tive on March 31, 1982. (Appointments at least 3 years becomes a career em-
of such persons for temporary or term ployee.
employment are to be made under ap- (3) All other former Canal Zone Merit
plicable provisions of part 316 of this System and Panama Canal Employ-
chapter.) ment System employees become ca-
(b) Service requirement. An agency reer-conditional employees.
may appoint such a former employee
(e) Acquisition of competitive status. A
under this section only when, imme-
person appointed under paragraph (a)
diately prior to separation from a
of this section automatically acquires
qualifying appointment, the employee
served continuously for at least one a competitive status:
year under a nontemporary appoint- (1) On appointment, if he or she has
ment in the Canal Zone Merit System, satisfactorily completed a 1-year pro-
the Panama Canal Employment Sys- bationary period under the Canal Zone
tem, or a combination of the two sys- Merit System and/or the Panama Canal
tems. Employment System.
(c) Time limits. (1) There is no time (2) On satisfactory completion of pro-
limit on the appointment under this bation in accordance with 315.80 (a)(3)
section of an employee who: if he or she had not completed a 1-year
(i) Is a preference eligible; or probationary period under the Canal
(ii) Has completed at least 3 years of Zone Merit System or Panama Canal
service, which did not include any Employment System.
break in service longer than 30 days,
[48 FR 13951, Apr. 1, 1983]
under one or more career-conditional
or career appointments in the Canal
315.602 Appointment based on serv-
Zone Merit System and/or the Panama ice in the Office of the President or
Canal Employment System. Vice-President or on the White
(2) An agency may appoint under this House Staff.
section an employee who does not meet
the conditions in (c)(1) of this section (a) Agency authority. An agency may
provided no more than 3 years have appoint noncompetitively a person who
elapsed since: has served at least 2 years in the imme-
(i) separation from a qualifying diate Office of the President or Vice-
Canal Zone Merit System or Panama President or on the White House Staff,
Canal Employment System appoint- provided that the appointment is ef-
ment; or fected without a break in service of 1
(ii) separation from service in Pan- full workday.
ama in a position excluded from the (b) Tenure on appointment. (1) Except
Canal Zone Merit System or Panama as provided in paragraph (b)(2) of this
Canal Employment System, when such section, a person appointed under para-
service immediately followed service graph (a) of this section becomes a ca-
under a qualifying appointment in one reer-conditional employee.
of those systems. (2) A person appointed under para-
(d) Tenure on appointment. On ap- graph (a) of this section becomes a ca-
pointment under paragraph (a) of this reer employee when he or she has com-
section: (1) A former career employee pleted the service requirement for ca-
of the Canal Zone Merit System or reer tenure or is excepted from it by
Panama Canal Employment System 315.201(c).
becomes a career employee. (c) Acquisition of competitive status. A
(2) A former Canal Zone Merit Sys- person appointed under paragraph (a)
tem and/or Panama Canal Employment of this section acquires a competitive
System employee whose service from

status automatically on appointment.
the date of career-conditional appoint-
ment in the Canal Zone Merit System [44 FR 54692, Sept. 21, 1979]
163
315.603 5 CFR Ch. I (1116 Edition)
315.603 Appointment based on branch of the Government, unless OPM

former incumbency of a position has excepted his particular type of case
brought into the competitive serv- from this requirement.
ice. (3) Employee recovered from compen-
(a) Agency authority(1) Employee in sable injury. An agency may appoint a
military service. An agency may appoint former incumbent of a permanent ex-
a former incumbent of a permanent excepted position who was serving under
cepted position who was serving under an appointment not limited to 1 year
an appointment not limited to 1 year or less, when the position has been
or less, or of a position in public or pri- brought into the competitive service
vate enterprise when the position was and when:
brought into the competitive service (i) The employee is entitled to res-
on a continuing basis and who left his toration based on recovery from com-
position after June 30, 1950, to perform
pensable injury in accordance with 5
active military service when:
U.S.C. 8151 and part 353;
(i) The position was brought into the
competitive service before or during (ii) The employees position was
his military service or during the pe- brought into the competitive service
riod in which he had restoration rights either before the employees separation
thereto, and he left the position to for compensable injury or during his or
enter military service before the end of her period of statutory restoration
the time limits set forth in 315.701(c); rights following such injury, and the
(ii) He has been released from mili- employees separation for compensable
tary service under honorable condi- injury occurred before the end of the
tions; time limits set forth in 315.701(c);
(iii) The agency submits a rec- (iii) The agency initiates the ap-
ommendation for his appointment to pointment within 6 months after ces-
OPM within 6 months after release sation of compensation; and
from military service under honorable (iv) The employee performed 6
conditions or after hospitalization con- months of statisfactory service imme-
tinuing after release for not more than diately before the date his or her posi-
1 year; and tion was brought into the competitive
(iv) He performed 6 months of satis- service in the civilian executive branch
factory service immediately before the of the Government, unless OPM has ex-
date his position was brought into the cepted his or her particular type of
competitive service in a position or po- case from this requirement.
sitions brought into the competitive (b) Review of disapproved recommenda-
service, or in the civilian executive tions. Agencies shall establish proce-
branch of the Government, unless OPM dures for reviewing disapprovals of rec-
has excepted his particular type of case ommendations for appointment under
from this requirement. this section when such review is re-
(2) Employee separated. An agency quested within 6 months after the date
may appoint a former incumbent of a of disapproval.
permanent excepted position under an
(c) Tenure on appointment. (1) Except
appointment not limited to 1 year or
as provided in paragraph (c)(2) of this
less or of a position in public or private
enterprise when the position was section, a person appointed under para-
brought into the competitive service graph (a) of this section becomes a ca-
on a continuing basis, and who was sep- reer-conditional employee.
arated thereafter, when: (2) A person appointed under para-
(i) He is recommended for appoint- graph (a) of this section becomes a ca-
ment within the time limits set forth reer employee when he has completed
in 315.701(c); and the service requirement for career ten-
(ii) He performed 6 months of satis- ure or is excepted from it by 315.201(c).
factory service immediately before the (d) Acquisition of competitive status. (1)
date his position, was brought into the A person appointed under paragraph
competitive service, in a position or (a)(1) of this section acquires a com-

positions brought into the competitive petitive status automatically on ap-
service or in the civilian executive pointment.
164
(2) A person appointed under para- teer or volunteer leader under the
graph (a)(2) or (a)(3) of this section ac- Peace Corps Act (22 U.S.C. 2051 et seq.),
quires a competitive status automati- or as a VISTA volunteer under the Eco-
cally on completion of probation. nomic Opportunity Act of 1964 (42
[33 FR 12418, Sept. 4, 1968, as amended at 43 U.S.C. 2991 et seq.) or the Domestic Vol-
FR 34428, Aug. 4, 1978; 54 FR 37092, Sept. 7, unteer Service Act of 1973 (Pub. L. 93
1989; 66 FR 66710, Dec. 27, 2001] 113), or as a full-time community vol-
unteer (including criminal justice vol-
315.604 Employment of disabled vet-
erans who have completed a train- unteer, volunteer in justice, and VET
ing course under Chapter 31 of title REACH volunteer) under part C of title
38, United States Code. I of Pub. L. 93113. To be qualifying
(a) When a disabled veteran satisfac- under this section VISTA and commu-
torily completes an approved course of nity volunteer service must total at
training prescribed by the Veterans least 1 year. In addition, a community
Administration under chapter 31, title volunteer must have served prior to
38, United States Code, any agency October 1, 1976.
may appoint the veteran noncompeti- (b) Time limit. An agency in the exec-
tively to the position of class of posi- utive branch may make an appoint-
tions for which trained. ment under this section only within 1
(b) Conversion. An agency may con- year after the person completes the
vert to career or career-conditional qualifying service. (For Community
employment a person appointed under volunteers who have completed their
paragraph (a) of this section. service before March 10, 1978, the 1-year
(c) Disqualifications. Any law, Execu- period begins on March 10, 1978.) How-
tive order, or civil service rule or regu- ever, an agency may extend the period
lation which would disqualify an appli- for 2 more years to a total of 3 years if
cant for appointment also disqualifies the person, after the qualifying service,
him or her for conversion of his or her is:
employment to career or career-condi-
(1) In the military service;
tional employment under this section.
(d) Tenure on approval of recommenda- (2) Studying at a recognized institu-
tion. When an agency converts the em- tion of higher learning; or
ployee under paragraph (b) of this sec- (3) In another activity which, in the
tion, the employee becomes: agencys view, warrants extension.
(1) A career-conditional employee, (c) Conditions. Any law, Executive
except as provided in paragraph (d)(2) order, or regulation that disqualifies
of this section; and an applicant for appointment also dis-
(2) A career employee when he or she qualifies an applicant for appointment
has completed the service requirement under this section.
for career tenure or is excepted from it (d) Tenure on appointment. (1) Except
by 315.201(c). as provided in paragraph (d)(2) of this
(e) Acquisition of competitive status. A section, a person appointed under para-
person whose employment is converted graph (a) of this section becomes a ca-
to career or career-conditional employ- reer-conditional employee.
ment under this section acquires a
(2) A person appointed under para-
competitive status automatically on
graph (a) or this section becomes a ca-
conversion.
reer employee if excepted from the
[44 FR 54692, Sept. 21, 1979, as amended at 44 service requirement for career tenure
FR 55132, Sept. 25, 1979] by 315.201(c).
315.605 Appointment of former AC- (e) Acquisition of competitive status. A
TION volunteers. person appointed under paragraph (a)
(a) Agency authority. An agency in of this section acquires a competitive
the executive branch may appoint nonstatus automatically on completion of
competitively, for other than tem- probation.
porary employment, a person whom [39 FR 961, Jan. 4, 1974, as amended at 43 FR

the Director of ACTION certifies as 20954, May 16, 1978; 43 FR 34428, Aug. 4, 1978]
having served satisfactorily as a volun-
165
315.606 5 CFR Ch. I (1116 Edition)
315.606 Noncompetitive appointment an applicant for appointment in the

of certain present and former For- competitive service also disqualifies an
eign Service officers and employ- applicant for appointment under this
ees. section.
Subject to the conditions prescribed (d) Acquisition of competitive status. A
by OPM, an agency may appoint non- person appointed under paragraph (a)
competitively a present or former ca- of this section acquires competitive
reer officer or employee of the Foreign status automatically upon completion
Service who was appointed under au- of probation.
thority of the Foreign Service Act of (e) Tenure on appointment. (1) Except
1946, as amended (22 U.S.C. 801 et seq.), as provided in paragraph (e)(2) of this
or legislation that supplements or re- section, a person appointed under para-
places that Act, if: graph (a) of this section becomes a ca-
(a) He qualifies under the require- reer-conditional employee.
ments set forth in Executive Order (2) A person appointed under para-
11219, and graph (a) of this section becomes a ca-
(b) OPM has concurred in his present reer employee if excepted from the
or former agencys plan, and sub- service requirement for career tenure
stantive changes thereto, for non- by 315.201(c).
competitive entry of civil service em-
ployees into the Foreign Service posi- [45 FR 43365, June 27, 1980, as amended at 46
tions of that agency. FR 35079, July 7, 1981; 54 FR 37092, Sept. 7,
1989]
FR 66710, Dec. 27, 2001] 315.608 Noncompetitive appointment
of certain former overseas employ-
315.607 Noncompetitive appointment ees.
of present and former Peace Corps
personnel. (a) Authority. An executive branch
(a) An agency in the executive agency may noncompetitively appoint,
branch may appoint noncompetitively, to a competitive service position with-
for other than temporary appointment, in the United States (including Guam,
an individual: Puerto Rico, and the Virgin Islands),
(1) Who has completed no less than 36 an individual who has completed 52
months of continuous service without a weeks of creditable overseas service as
break in service of 3 days or more defined in paragraph (b) of this section
under section 7(a) of the Peace Corps and is appointed within the time limits
Act (22 U.S.C. 2506) which pertains to in paragraph (d) of this section. Any
the appointment of Peace Corps staff law, Executive order, or regulation
(not volunteers); that disqualifies an applicant for ap-
(2) Whom the Director of the Peace pointment in the competitive service,
Corps certifies as having satisfactorily such as the citizenship requirement,
served under such an appointment; and also disqualifies the applicant for ap-
(3) Who meets OPM qualification pointment under this section. An indi-
standardsincluding any written test vidual may be appointed to any occu-
requirementsfor the position in ques- pation and grade level for which quali-
tion. fied. An agency may waive any require-
(4) Who is not a Peace Corps volun- ment for a written test after deter-
teer as this paragraph does not apply mining that the duties and responsibil-
to Peace Corps volunteers. ities of the applicants overseas posi-
(b) Time limitations. (1) An individ- tion were similar enough to make the
uals eligibility under this section ex- written test unnecessary.
tends through September 30, 1982, or (1) Tenure. A person appointed under
until 3 years after separation from this section becomes a career-condi-
qualifying service with the Peace tional employee unless he or she has
Corps, whichever is later. already satisfied the requirements for
(2) An agency may not extend this career tenure or is exempt from the
period. service requirement in 5 CFR 315.201.

(c) Conditions. Any law, Executive (2) Competitive status. A person ap-
order, or regulation which disqualifies pointed under this section acquires
166
competitive status automatically upon signment to an area of the United

completion of probation. States with no significant opportuni-
(b) Creditable overseas service. For pur- ties for Federal employment; or
poses of this section only, creditable (2) The time an individual was inca-
service is service in an appropriated pacitated for employment.
fund position(s) performed by a family (e) Definitions. In this section terms
member under a local hire appoint- have the following meaning:
ment(s) overseas during the time the (1) Family member. An unmarried
family member was accompanying a child under age 23, a spouse, or a do-
sponsor officially assigned to an over- mestic partner. An individual must
seas area and for which the family have been a family member at the time
member received a fully successful or he or she met the overseas service re-
better (or equivalent) performance rat- quirement and other conditions but
ing. Creditable overseas service is com- does not need to be a family member at
puted in accordance with the proce- the time of noncompetitive appoint-
dures in the OPM Guide to Processing ment in the United States.
Personnel Actions. Creditable service (2) Sponsor. A Federal civilian em-
may have been under more than one ployee, a Federal nonappropriated fund
appointment and need not be contin- employee, or a member of a uniformed
uous. Leave without pay taken during service who is officially assigned to an
the time an individual is in the over- overseas area.
seas area is credited on the same basis (i) Officially assigned. Under active or-
as time worked. ders issued by the United States Gov-
(c) Service waiver. Up to 26 weeks of ernment.
the 52-week service requirement is (ii) Federal civilian employee. An em-
waived when the head of an agency (or ployee of the executive, judicial, or leg-
designee) that employed the family islative branch of the United States
member overseas certifies that the Government who serves in an appro-
family members expected 52 weeks of priated fund position.
employment were cut short because of (iii) Nonappropriated fund employee.
a nonpersonal situation that neces- An employee paid from non-
sitated the relocation of the family appropriated funds of the Army and Air
member from the overseas area. The Force Exchange Service, Navy Ships
certification must include the number Stores Ashore, Navy Exchanges, Ma-
of weeks waived. For this purpose, a rine Corps Exchanges, Coast Guard Ex-
nonpersonal situation includes dis- changes, or other instrumentalities of
aster, conflict, terrorism or the threat the United States.
of terrorism, and those situations when (iv) Member of a uniformed service.
a family member is forced to return to Personnel of the U.S. Armed Forces
the United States because of military (including the Coast Guard), the com-
deployment, drawdowns, or other man- missioned corps of the Public Health
agement-initiated actions. A nonper- Service, and the commissioned corps of
sonal situation does not include cir- the National Oceanic and Atmospheric
cumstances that specifically relate to Administration.
a particular individual, for example, ill (3) Accompanying. The family member
health or personal interest in relo- resided in the overseas area while the
cating. sponsor was officially assigned to an
(d) Time limit on eligibility. An indi- overseas post of duty. The family mem-
vidual is eligible for appointment(s) ber need not have physically resided
under this authority for a period of 3 with the sponsor at all times or have
years following the date of returning traveled with the sponsor to or from
from overseas to the United States to the overseas area.
resume residence or until March 31, (4) Local hire appointment. An ap-
1998, whichever date is later. An agency pointment that is not actually or po-
may extend an individuals appoint- tentially permanent and that is made
ment eligibility beyond 3 years for pe- from among individuals residing in the
riods equivalent to overseas area. In this section only, a

(1) The time the individual was ac- local hire appointment includes non-
companying a sponsor on official as- permanent employment under:
167
315.609 5 CFR Ch. I (1116 Edition)
(i) Overseas limited appointment partnership may lead to disciplinary

under 5 CFR 301.203(b) or (c); action and the recovery of the cost of
(ii) Expected appointment under benefits received related to such fal-
Schedule A 213.3106(b)(1), 213.3106(b)(6), sification, as well as constitute a
or 213.3106(d)(1)) when the duration of criminal violation under 18 U.S.C. 1001,
the appointment is tied to the spon- and that the method for securing such
sors rotation date or when the ap- certification, if required, shall be de-
pointment is made on a not-to-exceed termined by the agency; and
(NTE) basis; (ix) Are willing promptly to disclose,
(iii) An American family member if required by the agency, any dissolu-
or part-time intermittent temporary tion or material change in the status of
(PIT) appointment in U.S. diplomatic the domestic partnership.
establishments;
(iv) 50 U.S.C. 403j; Public Law 8636 [61 FR 9322, Mar. 8, 1996, as amended at 77 FR
42903, July 20, 2012]
(50 U.S.C. 402, note); the Berlin Tariff
Agreement; or as a local national em- 315.609 Appointment based on serv-
ployee paid from appropriated funds; or ice in United States positions of the
(v) Any other nonpermanent appoint- Panama Canal Commission.
ment in the competitive or excepted
service approved by OPM. (a) Agency authority. An agency may
(5) Overseas. A location outside the 50 appoint noncompetitively, for other
States of the United States, the Dis- than temporary or term employment, a
trict of Columbia, Guam, Puerto Rico, United States citizen who has served
and the Virgin Islands. under nontemporary appointment in a
(6) Domestic partner. A person in a do- continuing career position of the Pan-
mestic partnership with a sponsor of ama Canal Commission located in the
the same sex. United States.
(7) Domestic partnership. A committed (b) Service requirement. An agency
relationship between two adults, of the may appoint such an individual under
same sex, in which the partners: this section only when, immediately
(i) Are each others sole domestic prior to separation from a qualifying
partner and intend to remain so indefi- appointment with the Panama Canal
nitely; Commission in the United States, the
(ii) Maintain a common residence, individual served continuously for at
and intend to continue to do so (or least 1 year under such qualifying ap-
would maintain a common residence pointment or under a combination of
but for an assignment abroad or other such appointment and nontemporary
employment-related, financial, or simi- appointment in the Canal Zone Merit
lar obstacle); System or the Panama Canal Employ-
(iii) Are at least 18 years of age and ment System.
mentally competent to consent to con- (c) Time limits. (1) There is no time
tract; limit on the appointment under this
(iv) Share responsibility for a signifi- section of an employee who:
cant measure of each others financial (i) Is a preference eligible; or
obligations; (ii) Has completed at least 3 years of
(v) Are not married or joined in a service, which did not include any
civil union to anyone else; break in service longer than 30 days,
(vi) Are not the domestic partner of under one or more nontemporary ap-
anyone else; pointments in Panama Canal Commis-
(vii) Are not related in a way that, if sion positions located in the United
they were of opposite sex, would pro- States or in positions under the Canal
hibit legal marriage in the U.S. juris- Zone Merit System and/or the Panama
diction in which the domestic partner- Canal Employment System.
ship was formed; (2) An agency may appoint under this
(viii) Are willing to certify, if re- section an employee who does not meet
quired by the agency, that they under- the conditions in (c)(1) of this section
stand that willful falsification of any only if no more than 3 years have
documentation required to establish elapsed since the individuals separa-
that an individual is in a domestic tion from a qualifying appointment.
168
(d) Tenure on appointment. (1) On ap- (1) The veteran was selected from
pointment under paragraph (a) of this among the best qualified following
section, an individual whose qualifying competition under a merit promotion
service does not include any break in announcement open to candidates out-
service of more than 30 days and totals side the agencys workforce; and
at least 3 years becomes a career em- (2) The veterans most recent separa-
ployee. tion from the military was under hon-
(2) All other individuals appointed orable conditions.
under this section become career-con- (b) Definitions. Agency in this con-
ditional employees. text means an executive agency as de-
(e) Acquisition of competitive status. A fined in 5 U.S.C. 105. The agency deter-
person appointed under paragraph (a) mines in individual cases whether a
of this section automatically acquires candidate was released shortly be-
a competitive status: fore completing the required 3 years
(1) On appointment, if he or she has and should therefore be eligible for ap-
satisfactorily completed a 1-year trial pointment.
period, which did not include more [65 FR 14432, Mar. 17, 2000]
than 22 workdays in nonpay status,
during qualifying employment with the 315.612 Noncompetitive appointment
Panama Canal Commission. of certain military spouses.
(2) On satisfactory completion of pro- (a) Agency authority. In accordance
bation in accordance with 315.801(a)(3) with the provisions of this section, an
if he or she had not completed such a 1- agency may appoint noncompetitively
year trial period. a spouse of a member of the armed
[48 FR 29667, June 28, 1983] forces serving on active duty who has
orders specifying a permanent change
315.610 Noncompetitive appointment of station (not for training), a spouse of
of certain National Guard techni- a 100 percent disabled service member
cians.
injured while on active duty, or the un-
(a) An agency may appoint non- remarried widow or widower of a serv-
competitively a National Guard techni- ice member who was killed while per-
cian who forming active duty.
(1) Was involuntarily separated (b) Definitions. (1) Active duty means
(other than by removal for cause on full-time duty in the armed forces, in-
charges of misconduct or delinquency); cluding full-time National Guard duty,
(2) Has served at least 3 years as a except that for Reserve Component
technician; members the term active duty does
(3) Meets the qualifications require- not include training duties or attend-
ments of the job: and ance at service schools.
(4) Is appointed within 1 year after (2) Armed forces has the meaning
separating from service as a Guard given that term in 10 U.S.C. 101.
Technician. (3) Duty station means the permanent
(b) The noncompetitive appointing location to which a member of the
authority also applies to National armed forces is assigned for duty as
Guard technicians separated before Oc- specified on the individuals permanent
tober 29, 1986, provided they are ap- change of station (PCS) orders.
pointed within a year of the date of (4) Member of the armed forces or serv-
separation. ice member means an individual who:
[52 FR 5431, Feb. 23, 1987] (i) Is serving on active duty in the
armed forces under orders specifying
315.611 Appointment of certain vet- the individual is called or ordered to
erans who have competed under active duty for more than 180 consecu-
agency merit promotion announce- tive days, has been issued orders for a
ments. permanent change of station, and is au-
(a) Agency authority. An agency may thorized for dependent travel (i.e., the
appoint a preference eligible or a vet- travel of the service members family
eran who has substantially completed members) as part of the orders speci-
at least 3 years of continuous active fying the individuals permanent
military service provided change of station;
169
315.612 5 CFR Ch. I (1116 Edition)
(ii) Retired from active duty in the (4) Spouses of retired or separated ac-
armed forces with a service-connected tive duty members who have a 100 per-
disability rating of 100 percent as docu- cent disability are not restricted to a
mented by a branch of the armed geographical location.
forces, or retired or was released or dis- (d) Conditions. (1) In accordance with
charged from active duty in the armed the provisions of this section, spouses
forces and has a disability rating of 100 are eligible for noncompetitive ap-
percent as documented by the Depart- pointment:
ment of Veterans Affairs; or (i) For a maximum of 2 years from
(iii) Was killed while serving on ac- the date of the service members per-
tive duty in the armed forces. manent change of station orders;
(5) Permanent change of station means (ii) From the date of documentation
the assignment, reassignment, or verifying the member of the armed
transfer of a member of the armed forces is 100 percent disabled; or
forces from his or her present duty sta- (iii) From the date of documentation
tion or location without return to the verifying the member of the armed
previous duty station or location. forces was killed while on active duty.
(6) Spouse means the husband or wife (2) A spouse may receive only one
of a member of the armed forces. noncompetitive appointment under
this section to a permanent position
(c) Eligibility. (1) A spouse of a mem-
per the service members orders au-
ber of the armed forces as defined in
thorizing a permanent change of sta-
paragraph (b)(4)(i) of this section must
tion.
have:
(3) Any law, Executive order, or regu-
(i) Married the member of the armed lation that disqualifies an applicant for
forces on, or prior to, the date of the appointment also disqualifies a spouse
service members orders authorizing a for appointment under this section.
permanent change of station; and (e) Proof of eligibility. (1) Prior to ap-
(ii) Relocated with the member of the pointment, the spouse of a member of
armed forces to the new duty station the armed forces as defined in para-
specified in the documentation order- graph (b)(4)(i) of this section must sub-
ing a permanent change of station. mit to the employing agency:
(2) A spouse of a member of the (i) A copy of the service members ac-
armed forces as defined in paragraph tive duty orders which authorize a per-
(b)(4)(iii) of this section must be the manent change of station. This author-
un-remarried widow or widower of the ization must include:
member of the armed forces killed on (A) A statement authorizing the serv-
active duty in the armed forces. ice members spouse to accompany the
(3) For spouses eligible under para- member to the new permanent duty
graph (b)(4)(i) of this section, non- station;
competitive appointment under this (B) The specific location to which the
section is limited to the geographic member of the armed forces is to be as-
area, as specified on the service mem- signed, reassigned, or transferred pur-
bers permanent change of station or- suant to permanent change of station
ders. It includes the service members orders; and
duty station and the surrounding area (C) The effective date of the perma-
from which people reasonably can be nent change of station; and
expected to travel daily to and from (ii) Documentation verifying mar-
work. The head of an agency, or his or riage to the member of the armed
her designee, may waive this limita- forces (i.e., a marriage license or other
tion (i.e., accept applications from legal documentation verifying mar-
spouses) if no Federal agency exists in riage).
the spouses geographic area. Spouses (2) Prior to appointment, the spouse
of active duty military members who of a member of the armed forces as de-
are on retirement or separation PCS fined in paragraph (b)(4)(ii) of this sec-
orders from active duty are not eligible tion must submit to the employing
to be appointed using this authority agency copies of:

unless the service member is injured (i) Documentation showing the mem-
with a 100 percent disability. ber of the armed forces was released or
170
discharged from active duty due to a 316.701 and 316.702 of this chapter
service-connected disability; who:
(ii) Documentation showing the (1) Was serving in a permanent ex-
member of the armed forces retired, or cepted position under an appointment
was released or discharged from active not limited to 1 year or less, or in a
duty, with a disability rating of 100 public or private enterprise in a posi-
percent; and tion which the agency determines to be
(iii) Documentation verifying mar- a continuing one, at the time his posi-
riage to the member of the armed tion was brought into the competitive
forces (i.e., a marriage license or other service; and
legal documentation verifying mar- (2) Performed 6 months of satisfac-
riage). tory service immediately before the
(3) Prior to appointment, the spouse date his position was brought into the
of a member of the armed forces as de- competitive service, in a position or
fined in paragraph (b)(4)(iii) of this sec- positions brought into the competitive
tion must submit to the employing service, or in the civilian executive
agency copies of: branch of the Government, unless OPM
(i) Documentation showing the indi- has excepted his particular type of case
vidual was released or discharged from from this requirement.
active duty due to his or her death (b) Eligibility for conversion. Within
while on active duty; the time limits set forth in paragraph
(c) of this section, the employment of
(ii) Documentation verifying the
an employee covered by paragraph (a)
member of the armed forces was killed
of this section may be converted to ca-
while serving on active duty; and
reer or career-conditional employment.
(iii) Documentation verifying mar- (c) Time limits. Conversion may be ini-
riage to the member of the armed tiated under paragraph (b) of this sec-
forces (i.e., a marriage license or other tion only within 6 months after the po-
legal documentation verifying mar- sition is brought into the competitive
riage); and service, except that:
(iv) A statement certifying that he or (1) When it is necessary for OPM to
she is the un-remarried widow or wid- determine that 316.701 or 316.702 ap-
ower of the service member. plies to a group of positions, the rec-
(f) Acquisition of competitive status. A ommendation shall be submitted with-
person appointed under paragraph (a) in 6 months after OPM advises the
of this section acquires competitive agency of its determination; and
status automatically upon completion (2) When an employee is absent on an
of probation. assignment to an organization or agen-
(g) Tenure on appointment. An ap- cy from which reemployment rights
pointment under paragraph (a) of this are provided under part 352 of this
section is career-conditional unless the chapter or by statute, the conversion
appointee has already satisfied the re- shall be initiated within 6 months after
quirements for career tenure or is ex- the employees return from such as-
empt from the service requirement signment, when reemployment occurs
pursuant to 315.201. within the time limits prescribed in
[74 FR 40476, Aug. 12, 2009, as amended at 76
the applicable statute or regulation;
FR 54072, Aug. 31, 2011] (3) When an employee is absent on
approved leave without pay, the con-
version shall be initiated within 6
Subpart GConversion to Career months of the employees return to
or Career-Conditional Em- duty, when such return occurs within
ployment From Other Types of time limits authorized by the agency;
Employment and
(4) When an employee who is serving
315.701 Incumbents of positions on military duty or who is separated
brought into the competitive serv- and rehired during the 6-month period
ice.
after the position is brought into the

(a) Employee coverage. This section competitive service is eligible for con-
applies to an employee retained under version under the provisions of 315.603,
171
315.702 5 CFR Ch. I (1116 Edition)
the conversion shall be initiated within 315.703 Employees formerly reached

the time limits prescribed by that sec- on a register.
tion. (a) Employee coverage. An employee
(d) Tenure on approval of conversion. who was serving in a position when his
Upon conversion under paragraph (b) of or her name was within reach for ca-
this section, the employee becomes: reer or career-conditional appointment
(1) A career-conditional employee, on a register appropriate for that posi-
except as provided in paragraph (b)(2) tion may be converted to career or ca-
of this section; reer-conditional employment when:
(2) A career employee when he has (1) The employees name was in-
completed the service requirement for cluded on an appropriate certificate
career tenure or is excepted from it by
issued while the employee was serving
315.201(c).
in the position, or reconstruction of
(e) Acquisition of competitive status. A the appropriate register verifies that
person whose employment is converted
the employee would have been within
to career or career-conditional employ-
reach;
(2) The register was being used for ca-
reer and career-conditional appoint-
completion of probation.
ments when he or she was reached;
(f) Review of disapproved conversions.
Agencies shall establish procedures for (3) He or she has been continuously
reviewing disapprovals of conversions employed since being reached;
under this section when such review is (4) Conversion is initiated either be-
requested within 6 months after the fore the expiration of the register or
date of the disapproval. during a period of continuous service
since the employee was reached; and
[33 FR 12418, Sept. 4, 1968, as amended at 43 (5) When the employee is a non-
FR 34428, Aug. 4, 1978; 66 FR 66710, Dec. 27,
preference eligible who was first
2001]
reached after February 1, 1955, the Of-
315.702 Employees serving without fice, or the agency, in accordance with
competitive examination in rare an agreement with the Office, deter-
cases. mines that satisfactory reasons existed
(a) Recommendation by agency. An for passing over any preference eligible
agency may recommend to OPM that who preceded the employee on the reg-
the employment of an employee who ister when he or she was reached and
has completed at least 1 year of satis- who is still within reach and available
factory service under 316.601 be con- for appointment.
verted to career or career-conditional (b) Tenure on conversion. An employee
employment. whose appointment is converted under
(b) Tenure on approval of recommenda- paragraph (a) of this section becomes:
tion. When OPM approves the agencys (1) A career-conditional employee ex-
recommendation submitted under cept as provided in paragraph (b)(2) of
paragraph (a) of this section, the em- this section;
ployee becomes: (2) A career employee when he or she
(1) A career-conditional employee, has completed the service requirement
except as provided in paragraph (b)(2) for career tenure or is excepted from it
of this section; by 315.201(c).
(2) A career employee when he has (c) Acquisition of competitive status. An
completed the service requirement for employee whose employment is con-
career tenure or is excepted from it by verted to career or career-conditional
315.201(c). employment under this section ac-
(c) Acquisition of competitive status. A quires a competitive status automati-
person whose employment is converted cally on completion of probation.
to career or career-conditional employ-
[44 FR 55132, Sept. 25, 1979]

conversion.
172
315.704 Conversion to career employ- who is reemployed after intervening

ment from indefinite or temporary service in the armed forces, the 90-day
employment. period begins on the date of reemploy-
(a) General. Employees serving after ment if the employees combined civil-
February 7, 1968, in competitive posi- ian and military service satisfies the 3-
tions under indefinite appointments or year service requirement on that date.
temporary appointments pending es- (d) Administrative error. When an em-
tablishment of a register or as status ployee has met the service requirement
quo employees acquire competitive sta- under paragraph (a)(1) of this section
tus and are entitled to have their em- but, because of administrative error or
ployment converted to career employ- oversight, has not been converted to
ment when such employees: career employment within the time
(1) Complete a total of at least 3 limits prescribed in this section, the
years of service in such a position employing agency may effect the em-
under one or more such appointments ployees conversion as of the date on
without a break in service of more which he or she met the service re-
than 30 calendar days or without an quirement, even though the time limit
interruption by nonqualifying service for such conversion has expired.
of more than 30 calendar days;
(2) Have rendered satisfactory service [44 FR 54692, Sept. 21, 1979. Redesignated at
for the 12 months immediately pre- 44 FR 63080, Nov. 2, 1979, as amended at 66 FR
ceding the conversion; and 66710, Dec. 27, 2001]
(3) Meet applicable qualification re-
quirements for the positions and are 315.705 Employees serving under
otherwise eligible for career employ- transitional or veterans recruit-
ment appointments.
ment. This paragraph does not apply to
employees serving under an overseas (a) Agency action. (1) An agency shall
limited appointment or in positions convert the employment of an em-
above GS15 or equivalent. ployee who has served continuously
(b) Creditable service. (1) In computing under a transitional appointment for
creditable service under paragraph (a) at least 1 year to career or career-con-
of this section for an employee who left ditional employment within 90 cal-
a competitive position in which he or endar days after he completes the pro-
she was serving under a qualifying ap- gram of education or training approved
pointment covered in paragraph (a) of for him.
this section to enter the armed forces (2) Within 30 calendar days after an
and who is reemployed in such a posi- employee completes (i) 2 years of sub-
tion within 120 calendar days after sep- stantially continuous service under a
aration under honorable conditions, veterans recruitment appointment or
the period from the date he or she left under a combination of transitional
the position to the date of reemploy- and veterans recruitment appoint-
ment is creditable. ments and (ii) his training or edu-
(2) The Office shall publish in its op- cational programs, the employing
erating manuals the conditions under agency shall convert his appointment
which full-time, part-time, and inter- to career or career-conditional employ-
mittent employment is creditable in ment.
meeting the service requirement under
(b) Tenure. Upon conversion of his
paragraph (a) of this section.
(c) Termination after failure to meet employment, the employee becomes:
conversion requirements. An employing (1) A career-conditional employee,
agency shall terminate employees cov- except as provided in paragraph (b)(2)
ered by paragraph (a) of this section of this section;
not later than 90 days after they com- (2) A career employee if he has com-
plete the 3-year service requirement re- pleted the service requirement for ca-
ferred to in paragraph (a)(1) of this sec- reer tenure or is excepted from it by
tion, if they have not met the require- 315.201(c).
ments and conditions of paragraphs (a) (c) Acquisition of competitive status. An

(2) and (3) of this section before the end employee whose employment is con-
of the 90-day period. For an employee verted to career or career-conditional
173
315.706 5 CFR Ch. I (1116 Edition)
employment under this section, ac- time of a qualifying temporary ap-

quires a competitive status automati- pointment effected within the year im-
cally on conversion. mediately preceding, or a term ap-
[35 FR 5661, Apr. 8, 1970. Redesignated at 44
pointment effected within four years
FR 63080, Nov. 2, 1979] immediately preceding, the conversion.
(b) Tenure on conversion. (1) Except as
315.706 Certain nonpermanent em- provided in paragraph (b)(2) of this sec-
ployees of the Department of En- tion, a person converted under para-
ergy. graph (a) of this section becomes a ca-
(a) General. Employees transferred to reer-conditional employee.
the Department of Energy under Public (2) A person appointed under para-
Law 9591, who are serving in non- graph (a) of this section becomes a ca-
permanent appointments made under reer employee if excepted from the
competitive procedures of the former service requirement for career tenure
Atomic Energy Commission or Energy by 315.201(c).
Research and Development Adminis- (c) Acquisition of competitive status. A
tration and are determined by the De- person converted under paragraph (a)
partment to be performing continuing of this section acquires a competitive
functions, may be converted to career status automatically on completion of
or career-conditional by OPM upon rec- probation.
ommendation by the Department.
[44 FR 44813, July 31, 1979. Redesignated at 44
(b) Tenure upon conversion. Employ- FR 63080, Nov. 2, 1979, as amended at 66 FR
ees converted under this section be- 66710, Dec. 27, 2001; 73 FR 60611, Oct. 14, 2008]
come career-conditional employees un-
less they have completed the service 315.708 [Reserved]
requirement for career tenure.
(c) Acquisition of competitive status. A 315.709 Appointment for Persons
person whose employment is converted With Disabilities.
to career or career-conditional employ- (a) Coverage. An employee appointed
ment under this section acquires com- under 213.3102(u) of this chapter may
petitive status automatically. have his or her appointment converted
[43 FR 14002, Apr. 4, 1978. Redesignated at 44 to a career or career-conditional ap-
FR 63080, Nov. 2, 1979] pointment when he or she:
(1) Completes 2 or more years of sat-
315.707 Disabled veterans. isfactory service, without a break of
(a) Eligibility. (1) Subject to require- more than 30 days, under a non-
ments concerning qualifications and temporary appointment under
probationary period published by the 213.3102(u);
Office, an agency may convert the em- (2) Is recommended for such conver-
ployment of a disabled veteran who sion by his or her supervisor;
meets the conditions below to career or (3) Meets all requirements and condi-
career-conditional employment from a tions governing career and career-con-
time-limited appointment of more than ditional appointment except those re-
60 days. quirements concerning competitive se-
(2) To be eligible for conversion lection from a register and medical
under this paragraph, the veteran qualifications; and
must: (4) Is converted without a break in
(i) Have been retired from active service of one workday.
military service with a disability rat- (b) Tenure on conversion. An employee
ing of 30 percent or more; converted under paragraph (a) of this
(ii) Have been rated by the Depart- section becomes:
ment of Veterans Affairs since 1991 or (1) A career-conditional employee,
later, or by a branch of the Armed except as provided in paragraph (b)(2)
Forces at any time, as having a com- of this section; or
pensable service-connected disability (2) A career employee if he or she has
of 30 percent or more; or completed 3 years of substantially con-
(iii) Have been so rated by the De- tinuous service in a temporary ap-
partment of Veterans Affairs, or by a pointment under 213.3102(u) of this
branch of the Armed Forces, at the chapter, or has otherwise completed
174
the service requirement for career ten- (5) Are converted as a result of a de-
ure, or is excepted from it by liberate decision by management.
315.201(c). (c) Tenure on conversion. An employee
(c) Acquisition of competitive status. A converted under paragraph (a) of this
person whose employment is converted section becomes
to career or career-conditional employ- (1) A career-conditional employee,
ment under this section acquires a except as provided in paragraph (c)(2)
competitive status automatically on of this section;
conversion. (2) A career employee if he or she has
[71 FR 42245, July 26, 2006] completed 3 years of substantially con-
tinuous service in nontemporary ap-
315.710 Professional and administra- pointments under 213.3202(l) of this
tive career employees serving chapter, or has otherwise completed
under Schedule B appointments. the service requirement for career ten-
(a) Coverage. This section covers em- ure, or is excepted from it by
ployees serving in occupations that 315.201(c).
were covered by the Professional and (d) Acquisition of competitive status. A
Administrative Career Examination on person whose employment is converted
August 30, 1982, and that were listed in to career or career-conditional employ-
the consent decree entered on Novem- ment under this section acquires a
ber 19, 1981, by the U.S. District Court competitive status automatically on
for the District of Columbia in the civil conversion.
action known as Luevano v. Devine and
[52 FR 25194, July 6, 1987, as amended at 52
numbered as No. 79271. Those occupa- FR 43722, Nov. 15, 1987; 66 FR 66710, Dec. 27,
tions are designated in these regula- 2001]
tions as professional and administra-
tive career (PAC) occupations or posi- 315.711 Readers, interpreters, and
tions. OPM will publish a listing of personal assistants serving under
PAC occupations. Schedule A appointments.
(b) Eligibility. An agency may, but is (a) Agency authority. An agency may
not required to, convert appointments convert noncompetitively to career or
of employees occupying PAC positions career-conditional employment, a read-
under nontemporary appointments ef- er, interpreter, or personal assistant:
fected under 213.3202(1) of this chapter (1) Who completed at least 1 year of
to career or career-conditional ap- satisfactory service in such a position
pointments at the GS9 level in any po- under a non-temporary appointment
sition in a PAC occupation when such under 5 CFR 213.3102(11); and
employees (2) Whose employment in such a posi-
(1) Complete at least 1 year of Sched- tion is no longer necessary for reasons
ule B service at the GS7 level that beyond management control, e.g. res-
meets the quality of experience re- ignation or reassignment of the em-
quirement for the GS9 position in ployee being assisted.
which converted (less than full-time (b) Tenure on appointment. (1) Except
service is credited according to the reas provided in paragraph (b)(2) of this
lation it bears to the full-time work- section, a person appointed under para-
week); graph (a) of this section becomes a ca-
(2) Demonstrate performance that reer-conditional employee.
warrants conversion at GS9 (a current (2) A person appointed under para-
performance rating of fully successful graph (a) of this section becomes a ca-
or better for the year immediately pre- reer employee when he or she has com-
ceding conversion is necessary for this pleted the service requirement for ca-
purpose); reer tenure or is excepted from it by
(3) Meet all requirements and condi-
315.201(c).
tions governing career and career-con-
(c) Acquisition of competitive status. A
ditional appointment except those re-
person appointed under paragraph (a)
quirements concerning competitive se-
of this section acquires a competitive
lection from a register;

status automatically on appointment.
(4) Are converted without a break in
service of one workday or more; and [55 FR 12327, Apr. 3, 1990]
175
315.712 5 CFR Ch. I (1116 Edition)
315.712 [Reserved] Subpart HProbation on Initial

Appoinment to a Competitive
315.713 Conversion based on service
in a Pathways Program under part Position
362 of this chapter.
315.801 Probationary period; when
(a) Agency authority. An agency may required.
convert to a career or career-condi-
(a) The first year of service of an em-
tional employment in the competitive ployee who is given a career or career-
service, without further competition, conditional appointment under this
the following Pathways Participants: part is a probationary period when the
(1) An Intern who has satisfactorily employee:
completed the Internship Program and (1) Was appointed from a competitive
meets all eligibility requirements for list of eligibles established under sub-
conversion under subpart B of part 362 part C of this part;
of this chapter; (2) Was reinstated under subpart D of
(2) A Recent Graduate who has satis- this part unless during any period of
factorily completed the Recent Grad- service which affords a current basis
uates Program and meets all eligibility for reinstatement, the employee com-
requirements for conversion under sub- pleted a probationary period or served
part C of part 362 of this chapter; and with competitive status under an ap-
(3) A Presidential Management Fel- pointment which did not require a pro-
low who has satisfactorily completed bationary period.
the Fellows Program and meets all eli- (b) A person who is:
gibility requirements for conversion (1) Transferred under 315.501; or
under subpart D of part 362 of this (2) Promoted, demoted, or reassigned;
chapter. before he completed probation is re-
(b) Tenure on conversion. An employee quired to complete the probationary
whose appointment is converted to ca- period in the new position.
reer or career-conditional employment (c) A person who is reinstated from
under this section becomes: the Reemployment Priority List to a
(1) A career-conditional employee ex- position in the same agency and the
cept as provided in paragraph (b)(2) of same commuting area does not have to
this section; serve a new probationary period, but, if
(2) A career employee when he or she separated during probation, is required
has completed the service requirement to complete the probationary period in
for career tenure or is excepted from it the new position.
by 315.201(c). (d) Upon noncompetitive appoint-
(c) Acquisition of competitive status. A ment to the competitive service under
Pathways Participant converted to ca- the Postal Reorganization Act (39
reer or career-conditional employment U.S.C. 101 et seq.), an employee of the
in the competitive service under this Postal Career Service (including sub-
section acquires competitive status stitute and part-time flexible) who has
upon completion of probation. not completed 1 year of Postal service,
[77 FR 28215, May 11, 2012] must serve the remainder of a 1-year
probationary period in the new agency.
315.725 Disqualifications. (e) A person who is appointed to the
competitive service either by special
Any law, executive order, or civil
appointing authority or by conversion
service rule or regulation which would
under subparts F or G of this part
disqualify an applicant for appoint-
serves a 1-year probationary period un-
ment shall also disqualify an employee
less specifically exempt from probation
for conversion of his employment to
by the authority itself.
career or career-conditional employ-
ment under this subpart. [33 FR 12418, Sept. 4, 1968, as amended at 39
FR 962, Jan. 4, 1974; 45 FR 43365, June 27, 1980;

[33 FR 12418, Sept. 4, 1968. Redesignated at 44 60 FR 54504, Oct. 16, 1995; 65 FR 14432, Mar. 17,
FR 63080, Nov. 2, 1979] 2000]
176
315.802 Length of probationary pe- and shall terminate his services during
riod; crediting service. this period if he fails to demonstrate
(a) The probationary period required fully his qualifications for continued
by 315.801 is 1 year and may not be ex- employment.
tended. (b) Termination of an individual
(b) Prior Federal civilian service (in- serving a probationary period must be
cluding nonappropriated fund service) taken in accordance with subpart D of
counts toward completion of probation part 752 of this chapter if the indi-
when the prior service: vidual has completed one year of cur-
(1) Is in the same agency, e.g., De- rent continuous service under other
partment of the Army; than a temporary appointment limited
(2) Is in the same line of work (deter- to 1 year or less and is not otherwise
mined by the employees actual duties excluded by the provisions of that sub-
and responsibilities); and part.
(3) Contains or is followed by no more [73 FR 7187, Feb. 7, 2008]
than a single break in service that does
not exceed 30 calendar days. 315.804 Termination of probationers
(c) Periods of absence while in a pay for unsatisfactory performance or
status count toward completion of pro- conduct.
bation. Absence in nonpay status while (a) Subject to 315.803(b), when an
on the rolls (other than for compen- agency decides to terminate an em-
sable injury or military duty) is cred- ployee serving a probationary or trial
itable up to a total of 22 workdays. Ab- period because his work performance or
sence (whether on or off the rolls) due conduct during this period fails to dem-
to compensable injury or military duty onstrate his fitness or his qualifica-
is creditable in full upon restoration to tions for continued employment, it
Federal service. Nonpay time in excess shall terminate his services by noti-
of 22 workdays extends the proba- fying him in writing as to why he is
tionary period by an equal amount. An being separated and the effective date
employee serving probation who leaves of the action. The information in the
Federal service to become a volunteer notice as to why the employee is being
with the Peace Corps or the Corpora- terminated shall, as a minimum, con-
tion for National and Community Serv- sist of the agencys conclusions as to
ice serves the remainder of the proba- the inadequacies of his performance or
tionary period upon reinstatement pro- conduct.
vided the employee is reinstated within (b) Probation ends when the em-
90 days of termination of service as a ployee completes his or her scheduled
volunteer or training for such service. tour of duty on the day before the an-
(d) The probationary period for part- niversary date of the employees ap-
time employees is computed on the pointment. For example, when the last
basis of calendar time, in the same workday is a Friday and the anniver-
manner as for full-time employees. For sary date is the following Monday, the
intermittent employees, i.e., those who probationer must be separated before
do not have regularly scheduled tours the end of the tour of duty on Friday
of duty, each day or part of a day in since Friday would be the last day the
pay status counts as 1 day of credit to- employee actually has to demonstrate
ward the 260 days in a pay status re- fitness for further employment.
quired for completion of probation.
(However, the probationary period can- [33 FR 12418, Sept. 4, 1988, as amended at 60
FR 53505, Oct. 16, 1995; 73 FR 7188, Feb. 7,
not be completed in less than 1 year of
2008]
calendar time.)
[60 FR 53504, Oct. 16, 1995] 315.805 Termination of probationers
for conditions arising before ap-
315.803 Agency action during proba- pointment.
tionary period (general). Subject to 315.803(b), when an agen-
(a) The agency shall utilize the pro- cy proposes to terminate an employee
bationary period as fully as possible to serving a probationary or trial period
determine the fitness of the employee for reasons based in whole or in part on
177
315.806 5 CFR Ch. I (1116 Edition)
conditions arising before his appoint- religion, sex (including pregnancy and
ment, the employee is entitled to the gender identity), national origin, age
following: (as defined by the Age Discrimination
(a) Notice of proposed adverse action. in Employment Act of 1967, as amend-
The employee is entitled to an advance ed), or disability. An appeal alleging a
written notice stating the reasons, spe- discriminatory termination may be
cifically and in detail, for the proposed filed under this subsection only if such
action. discrimination is raised in addition to
(b) Employees answer. The employee one of the issues stated in paragraph
is entitled to a reasonable time for fil- (b) or (c) of this section.
ing a written answer to the notice of
proposed adverse action and for fur- FR 15380, Apr. 7, 1975; 44 FR 48951, Aug. 21,
nishing affidavits in support of his an- 1979; 55 FR 29339, July 19, 1990; 79 FR 43922,
swer. If the employee answers, the July 29, 2014]
agency shall consider the answer in
reaching its decision. Subpart IProbation on Initial Ap-
(c) Notice of adverse decision. The em-
ployee is entitled to be notified of the
pointment to a Supervisory or
agencys decision at the earliest prac-
Managerial Position
ticable date. The agency shall deliver
the decision to the employee at or be- SOURCE: 44 FR 44811, July 31, 1979, unless
fore the time the action will be made otherwise noted.
effective. The notice shall be in writ- 315.901 Statutory requirement.
ing, inform the employee of the reasons
for the action, inform the employee of 5 U.S.C. 3321 provides for a period of
his right of appeal to the Merit Sys- probation . . . before initial appoint-
tems Protection Board (MSPB), and in- ment as a supervisor or manager be-
form him of the time limit within comes final. It also says that a super-
which the appeal must be submitted as visor or manager who does not satis-
provided in 315.806(d). factorily complete the probationary
period . . . shall be returned to a posi-
[33 FR 12418, Sept. 4, 1968, as amended at 73 tion of no lower grade and pay than the
FR 7188, Feb. 7, 2008] position from which the individual was
transferred, assigned or promoted.
315.806 Appeal rights to the Merit
Systems Protection Board. This subpart contains OPM regulations
implementing those requirements of
(a) Right of appeal. An employee may law.
appeal to the Merit Systems Protec-
tion Board in writing an agencys deci- 315.902 Definitions.
sion to terminate him under 315.804 or In this subpart supervisory position
315.805 only as provided in paragraphs and managerial position have the mean-
(b) and (c) of this section. The Merit ing given them by the General Sched-
Systems Protection Board review is ule Supervisory Guide.
confined to the issues stated in para-
graphs (b) and (c) of this section. [60 FR 53505, Oct. 16, 1995]
(b) On discrimination. An employee
may appeal under this paragraph a ter- 315.903 Coverage.
mination not required by statute which This subpart applies to appointments
he or she alleges was based on partisan and positions without time limitation
political reasons or marital status. in the competitive civil service. Agen-
(c) On improper procedure. A proba- cies may, at their option, apply these
tioner whose termination is subject to provisions to time-limited appoint-
315.805 may appeal on the ground that ments and positions. This subpart does
his termination was not effected in ac- not apply to appointments or positions
cordance with the procedural require- in the Senior Executive Service.
ments of that section.
(d) An employee may appeal to the 315.904 Basic requirement.
Board under this section a termination (a) An employee is required to serve

that the employee alleges was based on a probationary period prescribed by the
discrimination because of race, color, agency upon initial appointment to a
178
supervisory and/or managerial posi- pervisory or managerial position while

tion. serving probation is creditable toward
(b) An employee is required to com- completion of probation. Service in a
plete a single probationary period in a nonsupervisory or nonmanagerial posi-
supervisory position and a single pro- tion is not creditable.
bationary period in a managerial posi- (c) Absence in nonpay status while on
tion, regardless of the number of agen- the rolls (other than for compensable
cies, occupations, or positions in which injury or military duty) is creditable
the employee serves. However, an agen- up to a total of 22 workdays. Absence
cy may by regulation provide for ex- (whether on or off the rolls) due to
ceptions to the probationary period for compensable injury or military duty is
managers who have satisfactorily com- creditable in full upon restoration to
pleted a probationary period for super- Federal service. Nonpay time in excess
visors when justified on the basis of of 22 workdays extends the proba-
performance and experience. tionary period by an equal amount.
(c) Employees who, as of the date (d) Service during a probationary pe-
this requirement is effective, are serv- riod from which an employee was sepa-
ing or have served in Federal civilian rated or demoted for performance or
supervisory or managerial positions conduct reasons does not count toward
without time limitation, or in time- completion of probation required under
limited supervisory or managerial posi- a subsequent appointment. In other sit-
tions under an official assignment ex- uations in which an employee does not
ceeding 120 days, are exempt from its complete probation, service is cred-
provisions, except that supervisors who itable as determined by agency policy.
are assigned to managerial positions (e) Temporary service in a super-
may, according to agency regulations, visory or managerial position under
be required to serve a probationary pe- temporary appointment, promotion, or
riod for managers. reassignment prior to probation is cred-
itable as determined by agency policy.
315.905 Length of the probationary Prior service under a detail may be
period. credited only when a detail to a super-
The authority to determine the visory or managerial position is made
length of the probationary period is permanent without a break in service.
delegated to the head of each agency, [44 FR 44811, July 31, 1979, as amended at 60
provided that it be of reasonable fixed FR 53505, Oct. 16, 1995]
duration, appropriate to the position,
and uniformly applied. An agency may 315.907 Failure to complete the pro-
establish different probationary peri- bationary period.
ods for different occupations or a single (a) Satisfactory completion of the
one for all agency employees. prescribed probationary period is a pre-
requisite to continued service in the
315.906 Crediting service toward position. An employee who, for reasons
completion of the probationary pe- of supervisory or managerial perform-
riod. ance, does not satisfactorily complete
(a) An employee who is reassigned, the probationary period is entitled to
transferred, or promoted to another su- be assigned, except as provided in para-
pervisory or managerial position while graph (b) of this section, to a position
serving a probationary period under in the agency of no lower grade and
this subpart is subject to the proba- pay than the one the employee left to
tionary period prescribed for the new accept the supervisory or managerial
position. Service in the former position position.
counts toward completion of the proba- (b) A nonsupervisory or nonmana-
tionary period in the new position. If gerial employee who is demoted into a
the former position was supervisory position in which probation under
and the new position managerial, serv- 315.904 is required and who, for rea-
ice counts in the manner prescribed by sons of supervisory or managerial per-
agency regulation. formance, does not satisfactorily com-

(b) Service on detail, temporary pro- plete the probationary period is enti-
motion, or reassignment to another su- tled to be assigned to a position at the
179
315.908 5 CFR Ch. I (1116 Edition)
same grade and pay as the position in 316.302 Selection of term employees.
which he or she was serving probation. 316.303 Tenure of term employees.
The employee is eligible for repro- 316.304 Trial period.
motion in accordance with agency pro-
Subpart DTemporary Limited
motion policy.
Employment
(c) The agency must notify the em-
ployee in writing that he or she is 316.401 Purpose and duration.
being assigned in accordance with this 316.402 Procedures for making temporary
section. appointments.
316.403 Designation of provisional appoint-
[49 FR 39287, Oct. 5, 1984, as amended at 60 FR ments.
53505, Oct. 16, 1995]
Subpart E [Reserved]
315.908 Appeals.
(a) An employee who, in accordance Subpart FAppointment Without
with the provisions of this subpart, is Competitive Examination in Rare Cases
assigned to a nonmanagerial or non- 316.601 Appointment without competitive
supervisory position, has no appeal examination in rare cases.
right.
(b) An employee who alleges that an Subpart GRetention of Incumbents of Po-
agency action under this subpart was sitions Brought Into the Competitive
based on partisan political affiliation Service
or marital status, may appeal to the
Merit Systems Protection Board. 316.701 Public or private enterprise taken
over by Government.
315.909 Relationship to other actions. 316.702 Excepted positions brought into the
competitive service.
(a) If an employee is required to con- 316.703 Effect on tenure of position change
currently serve both a probationary pe- of status quo employees.
riod under this subpart and a proba-
tionary period under subpart H of this Subpart H [Reserved]
part, the latter takes precedence and
completion of the probationary period AUTHORITY: 5 U.S.C. 3301, 3302; E.O. 10577, 3
for competitive appointment and ful- CFR, 19541958 Comp., p. 218.
fills the requirements of this subpart. SOURCE: 33 FR 12423, Sept. 4, 1968, unless
(b) An action which demotes an em- otherwise noted.
ployee to a lower grade than the one
the employee left to accept the super- Subparts AB [Reserved]
visory or managerial position, and an
action against an employee for reasons Subpart CTerm Employment
other than supervisory or managerial
performance, is governed by part 432 or
part 752 procedures, whichever is appli- EDITORIAL NOTE: Nomenclature changes to
subpart C of part 316 appear at 70 FR 72067,
cable. If the employee believes an ac- Dec. 1, 2005.
tion under this subpart was based on
improper discrimination or other pro- 316.301 Purpose and duration.
hibited practices under 5 U.S.C. 2302, he
(a) An agency may make a term ap-
or she may appeal to the Merit Sys-
pointment for a period of more than 1
tems Protection Board or the Equal
year but not more than 4 years to posi-
Employment Opportunity Commission,
tions where the need for an employees
as appropriate.
services is not permanent. Reasons for
making a term appointment include,
PART 316TEMPORARY AND TERM but are not limited to: project work,
EMPLOYMENT extraordinary workload, scheduled
abolishment, reorganization, con-
Subparts AB [Reserved] tracting out of the function, uncer-
tainty of future funding, or the need to
Subpart CTerm Employment
maintain permanent positions for

Sec. placement of employees who would
316.301 Purpose and duration. otherwise be displaced from other parts
180
of the organization. Agencies may ex- Department of Veterans Affairs, dated

tend appointments made for more than 1991 or later;
1 year but less than 4 years up to the 4- (5) Appointment under 31 U.S.C.
year limit in increments determined by 732(g) for current and former employees
the agency. The vacancy announce- of the General Accounting Office;
ment should state that the agency has (6) Appointment under 28 U.S.C. 602
the option of extending a term appoint- for current and former employees of
ment up to the 4-year limit. the Administrative Office of the U.S.
(b) OPM may authorize exceptions Courts;
beyond the 4-year limit when the ex- (7) Reappointment on the basis of
tension is clearly justified and is con- having left a term appointment prior
sistent with applicable statutory provi- to serving the 4-year maximum amount
sions. Requests to make and/or extend of time allowed under the appointment.
appointments beyond the 4-year limit Reappointment must be to a position
must be initiated by the employing of-
in the same agency appropriate for fill-
fice and sent to the appropriate OPM
ing under term appointment and for
service center.
which the individual qualifies. Com-
[63 FR 63783, Nov. 17, 1998] bined service under the original term
appointment and reappointment must
316.302 Selection of term employees. not exceed the 4-year limit; or
(a) Competitive term appointment. An (8) Conversion in the same agency
agency may make a term appointment from a current temporary appointment
under part 332 of this chapter, by using when the employee is or was within
competitive procedures, or under part reach on a certificate of eligibles for
337 of this chapter, by using direct-hire term appointment at any time during
procedures, as appropriate. service in the temporary position. Within
(b) Noncompetitive term appointment. reach means that the person could have
An agency may give a noncompetitive been selected for the position under
term appointment, without regard to competitive hiring procedures, includ-
the requirements of parts 332 and 333 of ing veterans preference. The certifi-
this chapter, to an individual who is cate must have been actually used for
qualified for the position and who is el- term appointment. The person must
igible for: have been continuously employed in
(1) Reinstatement under 315.401 of the position from the date found within
this chapter; reach to the date converted to a term
(2) Veterans recruitment appoint- appointment.
ment (VRA) under 307.103 of this chap- (c) Term employees are eligible for
ter. Term appointments under this sec- an extension of their appointment in
tion are permitted only at the grade accordance with the time limits in
levels authorized for VRA appoint- 316.301 even if their eligibility for non-
ments. Such appointments are com- competitive appointment expires or is
petitive service appointments not ex- lost during the period they are serving
cepted VRA appointments and do not under term employment.
lead to conversion to career-condi-
tional appointment; [63 FR 63783, Nov. 17, 1998, as amended at 68
(3) Career-conditional appointment FR 35268, June 13, 2003; 69 FR 33275, June 15,
under 315.601, 315.604, 315.605, 315.606, 2004; 73 FR 60611, Oct. 14, 2008; 74 FR 40477,
Aug. 12, 2009]
315.607, 315.608, 315.609, 315.612, or 315.711
of this chapter; 316.303 Tenure of term employees.
(4) Appointment under 5 U.S.C. 3112
(veterans with compensable service- (a) A term employee does not acquire
connected disability of 30 percent or a competitive status on the basis of his
more). The disability must be docu- term appointment.
mented by a notice of retirement or (b) The employment of a term em-
discharge due to service-connected dis- ployee ends automatically on the expi-
ability from active military service ration of his term appointment unless
dated at any time, or by a notice of he has been separated earlier in accord-
compensable disability rating from the ance with this chapter.
181
316.304 5 CFR Ch. I (1116 Edition)
316.304 Trial period. (c) Time limitsgeneral. (1) An agency

(a) The first year of service of a term may make a temporary appointment
employee is a trial period regardless of for a specified period not to exceed 1
the method of appointment. Prior Fed- year. The appointment may be ex-
eral civilian service is credited toward tended up to a maximum of 1 addi-
completion of the required trial period tional year (24 months of total service).
in the same manner as prescribed by Appointment to a successor position
315.802 of this chapter. (i.e., to a position that replaces and ab-
(b) The agency may terminate a term sorbs the position to which an indi-
employee at any time during the trial vidual was originally appointed) is con-
period. The employee is entitled to the sidered to be an extension of the origi-
procedures set forth in 315.804 or nal appointment. Appointment to a po-
315.805 of this chapter as appropriate. sition involving the same basic duties
and in the same major subdivision of
[33 FR 12423, Sept. 4, 1968, as amended at 63 the agency and same local commuting
FR 63783, Nov. 17, 1998] area as the original appointment is
also considered to be an extension of
Subpart DTemporary Limited the original appointment.
Employment (2) An agency may not fill a position
by temporary appointment if that posi-
EDITORIAL NOTE: Nomenclature changes to tion has previously been filled by tem-
subpart D of part 316 appear at 70 FR 72067, porary appointment(s) for an aggregate
Dec. 1, 2005. of 2 years, or 24 months, within the pre-
ceding 3-year period.
316.401 Purpose and duration. (d) Exceptions to general time limits. (1)
(a) Appropriate use. An agency may Agencies may make and extend tem-
make a temporary limited appoint- porary appointments to positions in-
ment volving intermittent or seasonal work
(1) To fill a short-term position (i.e., without regard to the requirements in
one that is not expected to last longer paragraph (c) of this section, provided
than 1 year); that:
(2) To meet an employment need that (i) Appointments and extensions are
is scheduled to be terminated within made in increments of 1 year or less.
the timeframe set out in paragraph (c) (ii) Employment in the same or a
of this section for such reasons as abol- successor position under this and any
ishment, reorganization, or con- other appointing authority totals less
tracting of the function, anticipated than 6 months (1,040 hours), excluding
reduction in funding, or completion of overtime, in a service year. The service
a specific project or peak workload; or year is the calendar year that begins
(3) To fill positions on a temporary on the date of the employees initial
basis when the positions are expected appointment in the agency. Should em-
to be needed for placement of perma- ployment in a position filled under this
nent employees who would otherwise exception total 6 months or more in
be displaced from other parts of the or- any service year, the provisions of
ganization. paragraph (c) of this section will apply
(b) Certification of appropriate use. The to subsequent extension or reappoint-
supervisor of each position filled by ment unless OPM approves continued
temporary appointment must certify exception under this section. An indi-
that the employment need is truly vidual may be employed for training
temporary and that the proposed ap- for up to 120 days following initial ap-
pointment meets the regulatory time pointment and up to 2 weeks a year
limits. This certification may con- thereafter without regard to the serv-
stitute appropriate documentation of ice year limitation.
compliance with the limits set out in (2) OPM will authorize exceptions to
paragraph (c) of this section. The rea- the limits set out in paragraph (c) of
son(s) for making a temporary limited this section only when necessitated by
appointment must be stated on the major reorganizations or base closings

form documenting each such appoint- or other unusual circumstances. Re-
ment. quests based on major reorganization,
182
base closing, restructuring, or other (6) Appointment under 28 U.S.C. 602

unusual circumstances that apply for current and former employees of
agencywide must be made by an offi- the Administrative Office of the U.S.
cial at the headquarters level of the Courts;
Department or agency. Requests in- (7) Reappointment on the basis of
volving extension of appointments to a being a former temporary employee of
specific position or project based on the agency who was originally ap-
other unusual circumstances may be pointed from a certificate of eligibles
submitted by the employing office to or under the provisions of part 333 of
the appropriate OPM service center. this chapter. An agency may not re-
[59 FR 46898, Sept. 13, 1994] appoint a former temporary employee
if the individual has already served the
316.402 Procedures for making tem- maximum time allowed in 316.401 or if
porary appointments. the position has been filled under tem-
(a) Competitive temporary appoint- porary appointment for the maximum
ments. In accordance with the time lim- time allowed in 316.401. Reappoint-
its in 316.401, an agency may make a ment must be to the same position or
temporary appointment under part 332 another position appropriate for tem-
of this chapter, by using competitive porary appointment with the same
procedures, or under part 337 of this qualification requirements;
chapter, by using direct-hire proce- (8) Reappointment on the basis of
dures, as appropriate. being a former temporary employee
(b) Noncompetitive temporary appoint- who was originally appointed from a
ments. In accordance with the time lim- certificate of eligibles or under the pro-
its in 316.401, an agency may give a visions of part 333 of this chapter and
noncompetitive temporary appoint- who sustained a compensable injury
ment, without regard to the require- while serving on the temporary ap-
ments of parts 332 and 333 of this chap- pointment. Reappointment must be to
ter, to an individual who is qualified the same position or another position
for the position and who is eligible for: appropriate for temporary appointment
(1) Reinstatement under 315.401 of with the same qualification require-
this chapter; ments. If the compensable injury dis-
(2) Veterans recruitment appoint- qualifies the former individual from
ment under 307.103 of this chapter.
performing such a position, reappoint-
Temporary limited appointments
ment may be to any position for which
under this section are permitted only
the individual is qualified. Reappoint-
at the grade levels authorized for VRA
ment must be for a minimum of 120
appointments. Such appointments are
days.
not VRA appointments and do not lead
(c) Extension of temporary appoint-
to conversion to career-conditional ap-
ments. An individual who receives a
pointment;
(3) Career-conditional appointment valid temporary appointment will be
under 315.601, 315.604, 315.605, 315.606, eligible for an extension in accordance
315.607, 315.608, 315.609, 315.612, 315.703, with 316.401 even if his or her eligi-
or 315.711 of this chapter; bility for noncompetitive appointment
(4) Appointment under 5 U.S.C. 3112 expires or is lost during the authorized
(veterans with compensable service- period of temporary employment.
connected disability of 30 percent of [63 FR 63784, Nov. 17, 1998, as amended at 68
more). The disability must be docu- FR 35268, June 13, 2003; 69 FR 33275, June 15,
mented by a notice of retirement or 2004; 73 FR 60611, Oct. 14, 2008; 74 FR 40477,
discharge due to service-connected dis- Aug. 12, 2009]
ability from active military service
dated at any time, or by a notice of 316.403 Designation of provisional
appointments.
compensable disability rating from the
Department of Veterans Affairs, dated (a) Conditions for designation. An
1991 or later; agency may designate a temporary ap-
(5) Appointment under 31 U.S.C. pointment as a provisional appoint-

732(g) for current and former employees ment only when all of the following
of the General Accounting Office; conditions are met:
183
316.601 5 CFR Ch. I (1116 Edition)
(1) The appointment is made to fill a approval and completion of necessary

continuing position by a provisional clearances.
appointment leading to permanent ap- (4) Senior Executive Service limited
pointment when the position must be term and limited emergency appoint-
filled more quickly than would be pos- ments made under 317.601 of this chap-
sible under the procedures required for ter, when the appointees are to be con-
nontemporary appointment or when verted to nontemporary appointments
such a provisional appointment is a rein the Senior Executive Service or to
quirement of the applicable authority; nontemporary Presidential appoint-
(2) The agency must have current ments, upon further action, such as
budgetary and appointing authority for OPM approval, White House clearance,
the nontemporary appointment (as- and/or confirmation by the Senate; and
suming satisfactory completion of the (5) Temporary appointments of se-
required procedures); and verely physically handicapped individ-
(3) The agency must have a specific uals, when such appointments are re-
intention to convert the appointee to a quired to demonstrate qualifications
nontemporary appointment under ap- for nontemporary appointment under
propriate authority before the expira- 213.3102(u) of this chapter, and when
tion of the temporary appointment, the appointees will be converted to
must state this intention in any writ- such nontemporary appointment upon
ten offer of employment and document successful performance in the trial po-
this intention as part of the permanent sition.
record of the initial appointment in ac- [56 FR 10142, Mar. 11, 1991, as amended at 60
cordance with instructions issued by FR 35120, July 6, 1995; 63 FR 63784, Nov. 17,
OPM. 1998; 66 FR 66710, Dec. 27, 2001]
(b) Authority for provisional appoint-
ments. Provisional appointments must Subpart E [Reserved]
be made under an authority established
by law, Executive order, or regulation Subpart FAppointment Without
or granted by OPM. Appointments Competitive Examination in
which may be treated as provisional Rare Cases
appointments under this paragraph
may be made under any appropriate 316.601 Appointment without com-
authority, including, but not limited petitive examination in rare cases.
to: (a) An agency may make an appoint-
(1) Noncompetitive temporary ap- ment without competitive examination
pointments of disabled veterans under when:
316.402(b)(5), when the appointments (1) The duties and compensation of
are intended to afford eligibility for the position are such, or qualified per-
conversion in accordance with 315.707 sons are so rare, that in the interest of
of this chapter and section 3112 of title good civil service administration the
5, United States Code; position cannot be filled through open
(2) Temporary appointments of competitive examination;
nurses in the Department of Veterans (2) The person to be appointed meets
Affairs, when the appointments are all applicable qualification require-
made under the provisions of section ments for the position; and
4114 of title 38, United States Code, (3) The appointment is specifically
with the intention of converting the authorized by the Office or is made
appointees to continuing appointments under an agreement between the agen-
as soon as the appointees obtain re- cy and the Office providing for such ap-
quired State certification or registra- pointments.
tion and/or the agency completes nec- (b) A person appointed under para-
essary verification of references; graph (a) of this section does not ac-
(3) Temporary transitional Schedule quire a competitive status on the basis
C appointments made under 213.3302 of of that appointment.
this chapter, when the appointees are (c) When a position filled under para-
to be converted to nontemporary graph (a) of this section becomes va-
Schedule C appointments upon OPM cant, the agency may fill the vacancy
184
by another appointment under para- ter), or is otherwise made subject to

graph (a) of this section only if the competitive examination, the agency
conditions of paragraph (a)(3) of this may retain the incumbent of the posi-
section are again met. tion.
[44 FR 55132, Sept. 25, 1979] (b)(1) When an agency retains an em-
ployee under paragraph (a) of this sec-
tion who was serving in an excepted po-
Subpart GRetention of Incum- sition under an indefinite appointment
bents of Positions Brought Into or an appointment without time limit,
the Competitive Service the agency gives the employee a status
quo appointment and may convert that
316.701 Public or private enterprise employees appointment to career or
taken over by Government.
career-conditional under 315.701 of
(a) When the Office, or an agency act- this chapter.
ing under an agreement with the Of- (2) When the agency decides not to ef-
fice, finds that the Federal Govern- fect conversion under 315.701 of this
ment has taken over a public or private chapter, or the employee fails to qual-
enterprise, or an identifiable unit ify for conversion, the agency, in its
thereof, and that a position has there- discretion, may retain the employee as
by been brought into the competitive a status quo employee.
service, the agency may retain the in- (c) An employee who was serving
cumbent of the position. under an excepted appointment limited
(b)(1) When an agency retains an em- to 1 year or less may be retained as a
ployee under paragraph (a) of this sec- temporary employee under paragraph
tion in a position which it determines (a) of this section until the scheduled
to be a continuing one, the agency expiration date of the employees ex-
gives the employee a status quo ap- cepted appointment. Extension of the
pointment and shall decide on a timely employees temporary appointment be-
basis whether it will convert that indi- yond that date will be subject to the
viduals employment to career or ca- provisions of 316.402.
reer-conditional under 315.701 of this
(d) An employee who was serving
chapter.
under an excepted appointment with a
(2) When an agency decides not to ef-
definite time limit longer than 1 year
fect conversion under 315.701 of this
may be retained under a term appoint-
chapter, or the employee fails to qual-
ment. The term appointment is subject
ify for conversion, the agency, in its
to all conditions and time limits appli-
discretion, may retain the employee as
cable to term appointments. Service
a status quo employee.
under excepted appointment does not
(c) An agency may retain an em-
count against the maximum time limit
ployee under paragraph (a) of this sec-
for term appointment in the competi-
tion in a position that it determines is
tive service.
noncontinuing under a temporary ap-
pointment. That appointment may be [44 FR 55133, Sept. 25, 1979, as amended at 60
made for a period not to exceed 1 year FR 39101, Aug. 1, 1995; 63 FR 63784, Nov. 17,
and will be subject to the time limits 1998]
set out in 316.402.
316.703 Effect on tenure of position
[44 FR 55133, Sept. 25, 1979, as amended at 60 change of status quo employees.
FR 39101, Aug. 1, 1995; 63 FR 63784, Nov. 17,
1998] (a) A status quo employee who is pro-
moted, demoted, or reassigned be-
316.702 Excepted positions brought comes:
into the competitive service. (1) An indefinite employee when the
(a) When the Office, or an agency act- position change occurs while he is not
ing under an agreement with the Of- serving overseas; or
fice, finds that an excepted position (2) An overseas limited employee
has been brought into the competitive when the position change occurs while
service by statute, Executive order, or he is serving overseas.

the revocation of an exception under (b) An employee referred to in para-
Civil Service Rule VI ( 6.6 of this chap- graph (a) of this section who is changed
185
back to his status quo position be- Subpart HRetention of SES Provisions
comes a status quo employee.
317.801 Retention of SES provisions.
Subpart H [Reserved] Subpart IReassignments, Transfers, and

Details
PART 317EMPLOYMENT IN THE 317.901 Reassignments.
SENIOR EXECUTIVE SERVICE 317.902 Transfers.
317.903 Details.
Subpart A [Reserved] 317.904 Change in type of SES appointment.
Subpart BGeneral Provisions Subpart JCorrective Action
Sec. 317.1001 OPM authority for corrective ac-

317.201 Regulatory requirements. tion.
AUTHORITY: 5 U.S.C. 3392, 3393, 3395,
Subpart CConversion to the Senior 3397,3592, 3593, 3595, 3596, 8414, and 8421.
Executive Service
317.301 Conversion coverage. Subpart A [Reserved]
317.302 Conversion procedures.
317.303 Status of employees who decline vol- Subpart BGeneral Provisions
untary conversion to the Senior Execu-
tive Service. 317.201 Regulatory requirements.
317.304 Conversion of career and career-type
This part contains the regulations of
appointees.
317.305 Conversion of excepted appointees. the Office of Personnel Management
317.306 Conversion of employees under time which implement the following provi-
limited appointments. sions of law:
(a) Section 413 of title IV of the Civil
Subpart DQualifications Standards Service Reform Act of 1978;
(b) Subchapter VIII of chapter 33 of
317.401 General.
title 5, U.S.C. on appointment, reas-
317.402 Career reserved positions.
317.403 General positions.
signment, and transfer in the Senior
317.404 Retention of qualifications stand- Executive Service; and
ards. (c) Subchapter V of chapter 35 of title
5, U.S.C. on reinstatement to the Sen-
Subpart ECareer Appointments ior Executive Service.
317.501 Recruitment and selection for initial [45 FR 8541, Feb. 8, 1980]
SES career appointment be achieved
from the brightest and most diverse pool Subpart CConversion to the
possible.
317.502 Qualifications Review Board certifi-
Senior Executive Service
cation.
317.503 Probationary period. SOURCE: 45 FR 8541, Feb. 8, 1980, unless oth-
317.504 [Reserved] erwise noted.
Subpart FNoncareer and Limited 317.301 Conversion coverage.

Appointments (a) When applicable. These conversion
317.601 Authorization.
provisions apply in the following cir-
317.602 Conditions of a limited appointment. cumstances.
317.603 Selection. (1) The implementation of the Senior
317.604 Reassignment. Executive Service effective on July 13,
317.605 Tenure of appointees. 1979, and the initial conversions there-
to.
Subpart GSES Career Appointment by (2) The implementation of the Senior
Reinstatement Executive Service in an agency fol-
317.701 Agency authority.
lowing the revocation of that agencys
317.702 General reinstatement: SES career Presidential exclusion under 5 U.S.C.
appointees. 3132(e). The Office of Personnel Man-

317.703 Guaranteed reinstatement: Presi- agement shall determine the date on
dential appointees. which conversions under this authority
186
shall become effective. Generally, this agreement at the time the Senior Ex-
will be no later than six months fol- ecutive Service was implemented in
lowing the effective date of the revoca- his/her former agency and that the re-
tion of the Presidential exclusion. employment right was to a position
(3) The implementation of the Senior which meets the grade level and func-
Executive Service in a formerly ex- tional criteria for inclusion under the
cluded agency following statutory ac- Senior Executive Service.
tion extending coverage under 5 U.S.C. (c) Employees excluded. The following
3132(a)(1) to that agency. Except as employees are excluded from coverage
otherwise provided by law, the Office of of this subpart and are not entitled to
Personnel Management shall deter- conversion to the Senior Executive
mine the date on which conversions Service.
under this authority shall become ef- (1) An employee in a position des-
fective. Generally, this will be no later ignated as Senior Executive Service
than six months following the effective who is serving under a time limited ap-
date of the statutory action extending pointment which will terminate before
coverage under 5 U.S.C. 3132(a)(1). the operational date of the Senior Ex-
(4) The implementation of the SES in ecutive Service.
a formerly excluded agency when OPM (2) An employee serving under a tem-
determines that the agency is an Ex- porary promotion, detail, or temporary
ecutive agency under 5 U.S.C. assignment in a position designated as
3132(a)(1). Senior Executive Service unless the po-
(5) The exercise of a reemployment sition which the employee encumbered
right by an individual who at the time on a permanent basis just prior to the
of his/her former agencys implementa- current temporary action has been des-
tion of the Senior Executive Service ignated as Senior Executive Service.
was under a reemployment agreement [45 FR 8541, Feb. 8, 1980, as amended at 60 FR
to a position in that agency which 6385, Feb. 2, 1995]
meets the grade level and functional
criteria for inclusion under the Senior 317.302 Conversion procedures.
Executive Service. The effective date (a) Employees appointed prior to des-
of a conversion under this authority is ignation; employees involuntarily reas-
prescribed by 317.302(d)(5). signed or demoted after designation(1)
(b) Employees covered. This subpart Notice. Each employee covered by this
covers: subpart who was appointed prior to the
(1) An employee serving in a position designation of his/her position as a
at the time it is designated a Senior Senior Executive Service position, or
Executive Service position; who was involuntarily reassigned or in-
(2) An individual appointed or rein- voluntarily demoted to a position after
stated to a position after it has been it was designated a Senior Executive
designated a Senior Executive Service Service position, shall be given a writ-
position; ten notice which includes the following
(3) An employee transferred, pro- information:
moted, voluntarily reassigned or volun- (i) A statement that the employees
tarily demoted to a position after it position has been designated as either
has been designated a Senior Executive general or career reserved;
Service position; (ii) A statement that the employee is
(4) An employee involuntarily reas- being offered an appointment under the
signed or involuntarily demoted to a Senior Executive Service or that the
position after it has been designated a employee is not being offered an ap-
Senior Executive Service position; and pointment under the Senior Executive
(5) An employee serving in a position Service but will be separated from the
which meets the grade level but not civil service pursuant to 317.305(b)(4)
the functional criteria for designation or 317.306(b)(4); If the employee is of-
as a Senior Executive Service position. fered conversion, the notice shall also
(6) An employee appointed in his/her include:
former agency under a reemployment (iii) A statement that the employee

right provided, however, that the em- has 90 calendar days from the date of
ployee was under a reemployment receipt of the written notice to elect
187
317.302 5 CFR Ch. I (1116 Edition)
either to join the Senior Executive conversion to the Senior Executive

Service or to remain in his/her current Service. The employing agency shall
appointment system; not attempt to influence the employ-
(iv) Identification of the position, ees decision through coercion, intimi-
SES pay rate, and kind of appointment dation or duress.
which the employee will receive if the (4) Employees election. On or before
employee elects to convert to the Sen- the end of the notice period, the em-
ior Executive Service; ployee shall signify in writing his/her
(v) For excepted appointees who have decision to accept or to decline an ap-
reinstatement eligibility to a position pointment under the Senior Executive
in the competitive service, or, as deter- Service. An excepted or limited assign-
mined by the Office of Personnel Man- ment employee covered under
agement, have substantial career-ori- 317.305(b)(3) or 317.306(b)(3), respec-
ented service under career-type ap- tively, shall also indicate whether he/
pointments as defined in 317.304(a)(2), she requests conversion to career ap-
a statement that the employee may re- pointment. Failure to respond shall be
quest conversion to career appoint- deemed a declination.
ment; (b) Employees receiving appointments
(vi) For employees under limited ex- after designation but before the oper-
ecutive assignment who have reinstate-
ational date of the Senior Executive Serv-
ment eligibility to a position in the
ice(1) Condition of appointment. Each
competitive service, or as determined
individual appointed, reinstated, trans-
by the Office of Personnel Manage-
ferred, promoted, voluntarily reas-
ment, have substantial career-oriented
signed or voluntarily demoted to a po-
service under career-type appoint-
sition after it has been designated a
ments as defined in 317.304(a)(2), and
Senior Executive Service position shall
who are covered under 317.306(b)(3), a
be required to accept conversion to the
statement that the employee may re-
Senior Executive Service. The agency
quest conversion to career appoint-
shall advise the individual of this re-
ment;
(vii) A summary of the features of quirement prior to the appointment or
the Senior Executive Service (this can other personnel action. The individual
be accomplished by appending descrip- shall signify his/her acceptance of con-
tive material prepared by the Office); version in writing at the time of the
(viii) A statement that the employee personnel action.
must submit his/her decision with re- (2) Notice. At the time of the per-
gard to paragraphs (a)(1)(iii), (v) and sonnel action, or 90 days before the
(vi) of this section, in writing, on or be- Senior Executive Service becomes
fore the end of the notice period; and operational, whichever is later, the
(ix) A statement of the right of an agency shall give the employee a writ-
employee who is aggrieved to appeal an ten notice which identifies the posi-
action under this subpart to the Merit tion, SES pay rate, and kind of ap-
Systems Protection Board. pointment the employee will receive
An employee whose involuntary reas- under the Senior Executive Service.
signment or involuntary demotion to a (3) Pay. An employees SES rate will
designated position occurs less than 90 be determined under 5 CFR part 534,
days before the operational date of the subpart D.
Senior Executive Service, shall be (c) Employees whose positions are not
given this notice at the time of the per- designated Senior Executive Service posi-
sonnel action. The employee shall have tionsNotice. Each employee covered
90 calendar days from the date of re- by 317.301(b)(5) shall be given a writ-
ceipt of the notice to make an election ten notice advising the employee that
on conversion. his/her position is not designated a
(2) Pay. Upon conversion to the Sen- Senior Executive Service position; that
ior Executive Service, an employees the employee is not entitled to conver-
SES rate will be determined under 5 sion to the Senior Executive Service;
CFR part 534, subpart D. and that the employee has a right to
(3) Freedom of choice. The employee appeal an action under this subpart to
shall decide whether he/she accepts the Merit Systems Protection Board.
188
(d) Employees appointed under a reem- Service. An excepted service employee

ployment right(1) Notice. At the time shall also indicate whether he/she re-
the employee exercises his/her reem- quests conversion to career appoint-
ployment right, the agency shall give ment. Failure to respond shall be
the employee a written notice which deemed a declination.
includes the following information: (5) Effective date. A conversion under
(i) A statement that the employee this section for an employee who elects
meets the requirements of 317.301(b)(6) to join the SES shall become effective
for eligibility for conversion to the at the end of the notice period.
Senior Executive Service and that he/ [45 FR 8541, Feb. 8, 1980, as amended at 45 FR
she is being offered an appointment 19213, Mar. 25, 1980; 69 FR 2050, Jan. 13, 2004]
under the Senior Executive Service;
(ii) A statement that the employee 317.303 Status of employees who de-
has 90 calendar days from the date of cline voluntary conversion to the
receipt of the written notice to elect Senior Executive Service.
either to join the Senior Executive (a) An employee who declines conver-
Service or to remain under the type of sion pursuant to 317.302(a)(4) or
appointment upon which the reemploy- 317.302(d)(4) shall remain in his/her
ment right was based; current appointment and pay system,
(iii) Identification of the position, and shall retain the grade, seniority,
SES pay rate, and kind of appointment and other rights and benefits associ-
which the employee will receive if the ated with such type of appointment
employee elects to convert to the Sen- and pay system. The employee may
ior Executive Service; continue in the current SES position
(iv) If the reemployment right is to a or be reassigned to another position
position in the excepted service and the within or outside the Senior Executive
employee has reinstatement eligibility Service.
to a position in the competitive serv- (b) The assignment of an employee
ice, or, as determined by the Office of who declines conversion under this sub-
Personnel Management, has substan- part shall not result in the separation
tial career-oriented service under ca- or reduction in grade of any other em-
reer-type appointments as defined in ployee in the agency.
317.304(a)(2), a statement that the em- (c) Nothing in these regulations af-
ployee may request conversion to ca- fects an agencys right to terminate a
reer appointment; limited executive appointment pursu-
(v) A summary of the features of the ant to Civil Service Rule IX.
Senior Executive Service (this can be [45 FR 8541, Feb. 8, 1980, as amended at 45 FR
accomplished by appending descriptive 19213, Mar. 25, 1980]
material prepared by the Office); and
(vi) A statment that the employee 317.304 Conversion of career and ca-
must submit his/her decision with re- reer-type appointees.
gard to paragraphs (d)(1)(ii) and (iv) of (a) Coverage. This section covers em-
this section, in writing, on or before ployees serving under:
the end of the notice period. (1) A career or career-conditional ap-
(2) Pay. An employees SES rate will pointment; or
be determined under 5 CFR part 534, (2) A similar type of appointment
subpart D. (career-type appointment) in an ex-
(3) Freedom of choice. The employee cepted service position as determined
shall decide whether he/she accepts by the Office. A career-type appoint-
conversion to the Senior Executive ment is an appointment in the ex-
Service. The employing agency shall cepted service other than an appoint-
not attempt to influence the employment:
ees decision through coercion, intimi- (i) To a Schedule C position estab-
dation or duress. lished under part 213 of this chapter;
(4) Employees election. On or before (ii) To a position authorized to be
the end of the notice period, the em- filled by noncareer executive assign-
ployee shall signify in writing his/her ment under part 305 of this chapter;
decision to accept or to decline an ap- (iii) To a position which meets the
pointment under the Senior Executive same criteria as a Schedule C position
189
317.305 5 CFR Ch. I (1116 Edition)
or a position authorized to be filled by career appointment. Such request must

non-career executive assignment; or be made on or before the end of the no-
(iv) To a position where the incum- tice period.
bent is traditionally changed upon a (i) If the request is approved by the
change in Presidential Administra- Office, the agency will convert the em-
tions. ployee to a Senior Executive Service
(b) Senior Executive Service appoint- career appointment. The employee
ment. An employee covered by this sec- may be assigned to a general or a
tion shall be converted to a Senior Ex- career reserved position. The name
ecutive Service career appointment. of the individual and basis for approv-
The employee may be assigned to ei- ing the request must be published in
ther a general or a career reserved the FEDERAL REGISTER.
position. (ii) If the employees request for con-
version to career is not approved by
317.305 Conversion of excepted ap-
pointees. the Office, or if the employee elects not
to make such a request, the agency
(a) Coverage. This section covers em- will convert the employee to a Senior
ployees serving under an excepted ap- Executive Service noncareer appoint-
pointment in a position: ment. The employee may be assigned
(1) In Schedule C of subpart C of part only to a general position.
213 of title 5, Code of Federal Regula- (4) In lieu of action under paragraph
tions; (b) (1), (2), or (3) of this section, the
(2) Filled by noncareer executive as- agency may separate the employee
signment under subpart F of part 305 of from the civil service.
title 5, Code of Federal Regulations;
(3) In the Executive Schedule under 317.306 Conversion of employees
subchapter II of chapter 53 of title 5, under time limited appointments.
United States Code, other than a ca-
(a) Coverage. This section covers em-
reer Executive Schedule position; or,
ployees serving under:
(4) Filled under an authority equiva-
lent to paragraph (a) (1), (2), or (3) of (1) A limited executive assignment
this section. under subpart E of part 305 of title 5,
(b) Senior Executive Service appoint- Code of Federal Regulations; or
ment. An employee covered by this sec- (2) A similar type of time limited ap-
tion shall be subject to one of the fol- pointment in an excepted service posi-
lowing actions. tion.
(1) If the employees position is des- (b) Senior Executive Service appoint-
ignated a general position, the agen- ment. An employee covered by this sec-
cy may convert the employee to a Sen- tion shall be subject to one of the fol-
ior Executive Service noncareer ap- lowing actions.
pointment. The employee may be as- (1) If the position in which the em-
signed only to a general position. ployee is serving under a limited exec-
(2) If the employees position is des- utive assignment or similar type of
ignated a career reserved position, time limited appointment will termi-
the agency may convert the employee nate within three years from the date
to a Senior Executive Service non- of the proposed conversion action, the
career appointment and assign the em- agency may convert the employee to a
ployee to a general position. The em- Senior Executive Service limited term
ployee cannot remain in a career reappointment.
served position. (2) If the position in which the em-
(3) If the employee subject to ployee is serving under a limited exec-
317.302(a) or 317.302(d) has reinstate- utive assignment or similar type of
ment eligibility to a position in the time limited appointment will not ter-
competitive service, or, as determined minate within three years from the
by the Office of Personnel Manage- date of the proposed conversion action,
ment, had substantial career-oriented the agency may convert the employee
service under a career-type appoint- to a Senior Executive Service non-

ment as defined in 317.304(a)(2), the career appointment and assign the em-
employee may request conversion to a ployee to a general position.
190
(3) If the employee under a limited established before the position is an-
executive assignment has reinstate- nounced.
ment eligibility to a position in the
[54 FR 9758, Mar. 8, 1989, as amended at 60 FR
competitive service, or, as determined 6385, Feb. 2, 1995]
by the Office of Personnel Manage-
ment, had substantial career-oriented 317.402 Career reserved positions.
service under a career-type appoint-
(a) The qualifications standard must
ment as defined in 317.304(a)(2), and if
be in writing and identify the breadth
immediately prior to the limited exec- and depth of the professional/technical
utive assignment and without a break and executive/managerial knowledges,
in service the employee served under a skills, and abilities, or other qualifica-
career appointment or career-type ap- tions, required for successful perform-
pointment in a position now being des- ance in the position.
ignated a Senior Executive Service po- (b) The standard must be specific
sition then the employee may request enough to enable applicants to be rated
conversion to a career appointment. and ranked according to their degree of
Such request must be made on or be- qualifications when the position is
fore the end of the notice period. being filled on a competitive basis.
(i) If the employee requests conver- (c) Each qualifications criterion in
sion to career, the agency will convert the standard must be job related. The
the employee to a Senior Executive standard may not emphasize agency-re-
Service career appointment. The em- lated experience, however, to the ex-
ployee may be assigned to a general tent that it precludes otherwise well-
or a career reserved position. The qualified candidates from outside the
name of the individual and basis for ap- agency from appointment consider-
proving the request must be published ation.
in the FEDERAL REGISTER. (d) The standard may not include
(ii) If the employee does not request (1) A minimum length of experience
conversion to career, the agency will requirement beyond that authorized
convert the employee as provided for in for similar positions in the General
paragraphs (b) (1) and (2) of this sec- Schedule;
tion. (2) A minimum education require-
(4) In lieu of action under paragraph ment beyond that authorized for simi-
(b) (1), (2), or (3) of this section, the lar positions in the General Schedule;
agency may separate the employee or
from the civil service. (3) Any criterion prohibited by law or
regulation.
Subpart DQualifications
317.403 General positions.
Standards
An agency may apply the criteria in
SOURCE: 54 FR 9758, Mar. 8, 1989, unless oth- 317.402 when developing qualifications
erwise noted. standards for general positions. If it
does not, OPM must be consulted be-
317.401 General. fore the agency develops the standard.
(a) The head of each agency is re- 317.404 Retention of qualifications
sponsible for establishing qualifica- standards.
tions standards for Senior Executive
Service (SES) positions in accordance If a qualifications standard is
with the procedures described in this changed, or a position is cancelled, the
former standard shall be retained for 2
subpart.
years.
(b) A written qualification standard
must be established for a position be-
fore any appointment is made to the Subpart ECareer Appointments
position. If a position is being filled

competitively, the standard must be SOURCE: 54 FR 9758, Mar. 8, 1989, unless oth-
erwise noted.
191
317.501 5 CFR Ch. I (1116 Edition)
317.501 Recruitment and selection didates. For this purpose, eligible can-
for initial SES career appointment didates may be grouped into broad cat-
be achieved from the brightest and egories, such as highly qualified, well
most diverse pool possible. qualified, and qualified. Numerical rat-
(a) Executive Resources Board (ERB). ing and ranking are not required.
The head of each agency shall appoint (4) Provide that the record be ade-
one or more ERBs from among employ- quately documented to show the basis
ees of the agency or commissioned offi- of qualifications, rating, and ranking
cers of the uniformed services serving determinations.
on active duty in the agency. The ERB (5) Provide that the ERB make writ-
shall, in accordance with the require- ten recommendations to the appointing
ments of this section, conduct the authority on the eligible candidates
merit staffing process for initial SES and identify the best qualified can-
career appointment.
didates. Rating sheets may be used to
(b) Recruitment. (1) As a minimum,
satisfy the written recommendation re-
the source of recruitment to fill a SES
quirement for individual candidates,
position by career appointment must
include all groups of qualified individ- but the ERB must certify in writing
uals within the civil service (as defined the list of candidates to the appointing
by 5 U.S.C. 2101). It may also include authority.
qualified individuals outside the civil (6) Provide that the appointing au-
service. thority select from among the can-
(2) Before an agency can fill an SES didates identified as best qualified by
vacancy by career appointment, it the ERB and certify the candidates ex-
must post a vacancy announcement in ecutive and technical qualifications.
USAJOBS for at least 14 calendar days, (7) Provide that the appointing au-
including the date of publication. Each thority or the ERB certify in writing
agencys SES vacancy announcement that appropriate merit staffing proce-
must comply with criteria in 330.707 of dures were followed.
subpart G of this chapter. (d) Retention of documentation. Agen-
(c) Merit staffing requirements. As a cies must keep such documentation as
minimum, agencies must OPM prescribes for 2 years to permit
(1) Provide that competition be fair reconstruction of merit staffing ac-
and open, that all candidates compete tions.
and be rated and ranked on the same (e) Applicant inquiries and appeals. In-
basis, and that selection be based sole- dividuals are entitled to obtain infor-
ly on qualifications and not on polit-
mation from an agency regarding the
ical or other non-job-related factors. If
process used to recruit and select can-
a candidate is a current SES career ap-
didates for career appointment to SES
pointee or an SES reinstatement eligi-
positions. Upon request, applicants
ble, an agency may consider the can-
must be told whether they were consid-
didate either competitively or non-
competitively. ered qualified for the position and
(2) Provide that the ERB consider the whether they were referred for appoint-
executive and technical qualifications ment consideration. Also, they may
of each candidate, other than those have access to questionnaires or other
found ineligible because they do not written material regarding their own
meet the requirements of the vacancy qualifications, except for material that
announcement. Preliminary qualifica- would identify a confidential source.
tions screening, rating, and ranking of There is no right of appeal by appli-
candidates may be delegated by the cants to OPM on SES staffing actions
ERB. taken by ERBs, Qualifications Review
(3) Provide that the rating proce- Boards, or appointing authorities.
dures sufficiently differentiate among (f) OPM review. OPM may review pro-
eligible candidates on the basis of the posed career appointments to ensure
knowledges, skills, abilities, and other that they comply with all merit staff-
job-related factors in the qualifications ing requirements and are free of any
standard for the position so as to en- impropriety. An agency shall take such
able the relative ranking of the can- action as OPM may require to correct
192
an action contrary to any law, rule, or (2) The individual completed an SES
regulation. probationary period, or did not have to
serve one, and was removed for a rea-
son that made the individual ineligible
58261, Nov. 1, 1993; 60 FR 6385, Feb. 2, 1995; 65
FR 33740, May 25, 2000; 66 FR 63906, Dec. 11, for reinstatement to the SES under
2001] subpart G of this part.
317.502 Qualifications Review Board 170, Jan. 3, 1991; 60 FR 6385, Feb. 2, 1995; 61 FR
certification. 46533, Sept. 4, 1996; 65 FR 33740, May 25, 2000]
(a) A Qualification Review Board 317.503 Probationary period.
(QRB) convened by OPM must certify
the executive/managerial qualifica- (a) An individuals initial appoint-
tions of a candidate before initial ca- ment as an SES career appointee be-
reer appointment may be made to an comes final only after the individual
SES position. More than one-half of has served a 1-year probationary period
the members of a QRB must be SES ca- as a career appointee; there has been
reer appointees. an assessment of the appointees per-
(b) Agency requests for certification formance during the probationary pe-
of a candidate by a QRB must contain riod; and the appointing authority, or
such information as prescribed by his or her designee, has certified that
OPM, including evidence that merit the appointee performed at the level of
staffing procedures were followed and excellence expected of a senior execu-
that the appointing authority has cer- tive during the probationary period.
tified the candidates qualifications for (b) When a career appointees execu-
the position. tive qualification have been certified
by a Qualifications Review Board on
(c) Qualifications Review Board cer-
the basis of special or unique qualities,
tification of executive qualifications
as described in 317.502(c), the proba-
must be based on demonstrated execu-
tionary assessment must address any
tive experience; successful completion
executive development activities the
of an OPM-approved candidate develop-
agency identified in support of the re-
ment program; or possession of special
quest for QRB certification.
or unique qualities that indicate a
(c) The probationary period begins on
likelihood of executive success. Any
the effective date of the personnel ac-
existing time limit on a previously ap-
tion initially appointing the individual
proved certification is removed.
to the SES as a career appointee and
(d) OPM may determine the disposi- ends one calendar year later.
tion of agency QRB requests where the (d) The following conditions apply to
QRB has not yet acted if the agency crediting service towards completion of
head leaves office or announces an in- the probationary period.
tention to leave office, if the President (1) Time on leave with pay while in
has nominated a new agency head, or if an SES position is credited. Earned
there is a Presidential transition. leave for which the employee is com-
(e) An action to convert a non- pensated by lump-sum payment upon
career-type employee to a career SES separation is not credited.
appointment in the employees current (2) Time in a nonpay status while in
position or a successor to that position an SES position is credited up to a
will not be forwarded to a QRB. A total of 30 calendar days (or 22 work-
noncareer-type employee includes a days). After 30 calendar days, the pro-
noncareer SES appointee, a Schedule C bationary period is extended by adding
appointee, or equivalent. to it time equal to that served in a
(f) A new QRB certification is re- nonpay status.
quired for an individual to be re- (3) Time absent on military duty or
appointed as an SES career appointee due to compensable injury is credited
following separation of the individual upon restoration to the SES when no
from an SES career appointment if: other break in SES service has oc-
(1) The individual was removed dur- curred.

ing the SES probationary period for (4) Time following transfer to an SES
performance or disciplinary reasons; or position in another agency is credited,
193
317.504 5 CFR Ch. I (1116 Edition)
i.e., the individual does not have to 317.601 Authorization.

start a new probationary period. (a) An agency may make a noncareer
(e) Removal of a career appointee or limited appointment only to a gen-
during the probationary period is cov- eral position.
ered by subpart D of part 359 of this (b) Each use of a noncareer appoint-
chapter. ment authority must be approved indi-
(f) A career appointee who resigns or vidually by the Office of Personnel
is removed from the SES before com- Management, and the authority reverts
pletion of the probationary period may to the Office upon departure of the in-
not receive another SES career ap- cumbent, unless otherwise provided by
pointment unless selected under SES the Office.
merit staffing procedures. The indi- (c) Use of a limited appointment au-
vidual, however, need not be recertified thority is subject to the conditions in
by a QRB unless the individual was re- this paragraph.
moved for performance or disciplinary (1) Agencies are provided a pool of
reasons. limited appointment authorities equal
(g) An individual who separated from to 3 percent of their Senior Executive
the SES during the probationary pe- Service (SES) position allocation, or
riod and who has been out of the SES one authority, whichever is greater. An
agency may use the pool to make a
more than 30 calendar days must serve
limited appointment only of an indi-
a new 1-year probationary period upon
vidual who has a career or career-con-
reappointment and may not credit pre-
ditional appointment (or an appoint-
vious time in a probationary period. In ment of equivalent tenure) in a perma-
the following situations, however, nent civil service position outside the
there is an exception and the indi- SES. If necessary, the Office of Per-
vidual is only required to complete the sonnel Management may suspend use
remainder of the previously served proof the pool authority.
bationary period. (2) Each use of a limited appointment
(1) The individual left the SES with- authority other than under paragraph
out a break in service for a Presi- (c)(1) of this section must be approved
dential appointment and is exercising individually by the Office, and the au-
reinstatement rights under 5 U.S.C. thority reverts to the Office upon de-
3593(b). parture of the incumbent, unless other-
(2) The individual left the SES with- wise provided by the Office.
out a break in service for other civilian [60 FR 6386, Feb. 2, 1995, as amended at 65 FR
employment that provides a statutory 33741, May 25, 2000]
or regulatory reemployment right to
the SES when no other break in service 317.602 Conditions of a limited ap-
occurred. pointment.
(3) The break in SES service was the (a) Appointments authorized under
result of military duty or compensable this provision may be deemed provi-
injury, and the time credited under sional appointments for purposes of the
paragraph (c)(3) of this section was not regulations set out in parts 831, 842, 870,
sufficient to complete the probationary and 890 of this chapter if they meet the
period. criteria set out in 316.401 and 316.403
of this chapter.
[54 FR 9758, Mar. 8, 1989, as amended at 60 FR (b) A limited appointment is not re-
6386, Feb. 2, 1995; 65 FR 33740, May 25, 2000] newable. If an agency initially made
the appointment for less than the max-
317.504 [Reserved] imum period authorized by the Office
of Personnel Management, however,
Subpart FNoncareer and Limited the agency may extend the appoint-
Appointments ment to the maximum period without
the approval of the Office. The Office
SOURCE: 45 FR 62414, Sept. 19, 1980, unless must be notified of the extension.
otherwise noted. (c) A limited term or limited emer-
gency appointee may not be appointed
194
to, or continue to hold, a position (b) An agency may terminate a non-

under such an appointment if, within career or limited appointment at any
the preceding 48 months, the individual time, unless a limited appointee is cov-
has served more than 36 months, in the ered under 5 CFR 752.601(c)(2). The
aggregate, under any combination of agency must give the noncareer or lim-
limited term and limited emergency ited appointee a written notice at least
appointments. 1 day prior to the effective date of the
removal.
FR 10142, Mar. 11, 1991; 60 FR 6386, Feb. 2,
(c) The employment of a limited ap-
1995] pointee ends automatically on the ex-
piration of the appointment if the ap-
317.603 Selection. pointment has not been terminated
earlier.
An agency may make a noncareer or
(d) An employee: (1) Who received a
limited appointment without the use of
limited appointment without a break
merit staffing procedures. The ap-
of service in the same agency as the
pointee, however, must meet the quali-
one in which the employee held a ca-
fications requirements for the position,
reer or career conditional appointment
as determined in writing by the ap-
(or an appointment of equivalent ten-
pointing authority.
ure) in a permanent civil service posi-
[45 FR 62414, Sept. 19, 1980, as amended at 60 tion outside the Senior Executive Serv-
FR 6386, Feb. 2, 1995] ice, and
(2) Whose limited appointment is ter-
317.604 Reassignment. minated for reasons other than mis-
(a) An agency may reassign a non- conduct, neglect of duty, or malfea-
career appointee only with the prior sance, shall be entitled to be placed in
approval of the Office unless otherwise his/her former position or a position of
provided by the Office. like status, tenure, and grade.
(b) An agency may make the fol- [45 FR 62414, Sept. 19, 1980, as amended at 60
lowing reassignments of limited ap- FR 6386, Feb. 2, 1995]
pointees to positions for which quali-
fied without the prior approval of the Subpart GSES Career
Office of Personnel Management. The
Office must be notified of the reassign-
Appointment by Reinstatement
ment, however.
(1) An agency may reassign a limited SOURCE: 54 FR 9759, Mar. 8, 1989, unless oth-
erwise noted.
emergency appointee to another gen-
eral position established to meet a 317.701 Agency authority.
bona fide, unanticipated, urgent need,
except that the appointee may not As provided for in 317.702 and
serve in one or more positions in the 317.703, an agency may reinstate a
agency under such appointment in ex- former SES career appointee without
cess of 18 months. regard to the merit staffing require-
(2) An agency may reassign a limited ments established by OPM in
term appointee to another general po- 317.501(c).
sition the duties of which will expire at 317.702 General reinstatement: SES
the end of 3 years or less except that career appointees.
the appointee may not serve in one or
more positions in the agency under (a) Eligibility for general reinstatement.
such appointment in excess of 3 years. A former SES career appointee who
meets the following conditions is eligi-
[45 FR 62414, Sept. 19, 1980, as amended at 60 ble for reinstatement under this sec-
FR 6386, Feb. 2, 1995] tion:
(1) The individual completed an SES
317.605 Tenure of appointees. probationary period under a previous
(a) A noncareer or limited appointee SES career appointment or was ex-
does not acquire status within the Sen- empted from that requirement; and
ior Executive Service on the basis of (2) The individuals separation from
the appointment. his or her last SES career appointment
195
317.703 5 CFR Ch. I (1116 Edition)
was not a removal under subpart C of other Presidential appointment with-

part 359 of this chapter for failure to be out a break in service between the two
recertified as a senior executive; or a appointments, the individual continues
removal under subpart E of part 359 of to be entitled to be reinstated to the
this chapter for less than fully success- SES following termination of the sec-
ful executive performance; or under 5 ond appointment. If there is an interim
U.S.C. 1207 by order of the Merit Sys- period between the two Presidential
tems Protection Board as a result of a appointments, the individual must be
disciplinary action initiated by the reinstated as an SES career appointee
Special Counsel under 5 U.S.C. 1206; or before the effective date of the second
under 5 U.S.C. 7532 (National Security); appointment to preserve reinstatement
or under subpart F of part 752 of this entitlement following termination of
chapter for misconduct, neglect of the second appointment.
duty, or malfeasance; or a resignation (b) Applying for reinstatement; time
after receipt of a notice proposing or limit. Except as provided in paragraph
directing removal under any of the (d) of this section, an application in
above conditions. Removal for failure writing for reinstatement under this
to accept a directed reassignment to section must be made to OPM within 90
another commuting area, or to accom- days after separation from the Presi-
pany a position in a transfer of func- dential appointment. An application
tion to another commuting area, does may be submitted as soon as the Presi-
not preclude reinstatement to the SES dential appointees resignation is re-
unless the appointment to the original quested or submitted.
position included acceptance of a writ- (c) Directing reinstatement. (1) To the
ten nationwide mobility agreement or extent practicable, OPM will direct re-
policy. instatement within 45 days of the date
(b) Applying for reinstatement; time of receipt by OPM of the application
limit. Application for reinstatement for reinstatement or the date of separa-
under this section shall be made dition from the Presidential appoint-
rectly to the agency in which SES em- ment, whichever is later.
ployment is sought. There is no time (2) OPM will use the following order
limit for reinstatement under this sec- of precedence in directing reinstate-
tion. ment of a former Presidential ap-
(c) Qualifications. The individual pointee:
must meet the qualification require- (i) The agency in which the indi-
ments of the position to which rein- vidual last served as an SES career ap-
stated. The agency makes this deter- pointee before accepting the Presi-
mination. dential appointment;
(d) Tenure upon reinstatement. An in- (ii) The successor agency to the one
dividual who is reinstated under in which the individual last served as
317.702 becomes an SES career ap- an SES career appointee;
pointee. (iii) The agency or agencies in which
[54 FR 9759, Mar. 8, 1989, as amended at 56 FR the individual served as a Presidential
172, Jan. 3, 1991] appointee; or
(iv) Any other agency in the Execu-
317.703 Guaranteed reinstatement: tive branch with positions under the
Presidential appointees. SES.
(a) Eligibility for reinstatement. (1) A (3) The agency being directed to take
former SES career appointee who was the reinstatement action is responsible
appointed by the President to a civil for assigning the individual to a posi-
service position outside the SES with- tion for which he or she meets the
out a break in service, and who left the qualifications requirements.
Presidential appointment for reasons (4) When directing the reinstatement
other than misconduct, neglect of of a Presidential appointee, OPM may,
duty, or malfeasance, is entitled by law as appropriate, allocate an additional
to be reinstated to the SES. SES space authority to the agency.
(2) If an individual is serving under a (5) When a Presidential appointee

Presidential appointment with rein- tenders his or her resignation, volun-
statement entitlement and receives an- tarily or upon request, the agency in
196
which the Presidential appointment (f) Compliance. (1) An agency must

was held, upon approval by OPM, may comply with an order to reinstate
place the appointee as an interim issued by OPM under this section as
measure on an SES limited term or promptly as possible, but not more
limited emergency appointment as ap- than 30 calendar days from the date of
propriate, pending reinstatement, to the order.
preclude a break in service after the (2) The agency will notify OPM of a
Presidential appointment has termi- reinstatement action taken under this
nated. section within 5 workdays of the effec-
(6) To preserve reinstatement rights tive date of the reinstatement.
under this section, an individual who (3) An individual who declines a rein-
has been serving in a presidential ap- statement ordered by OPM is not enti-
pointment, if selected by the President tled to further placement assistance by
for another appointment in the same or OPM under this section.
a new agency, must be reinstated to an [54 FR 9759, Mar. 8, 1989, as amended at 60 FR
appropriate position as an SES career 6386, Feb. 2, 1995]
appointee before the effective date of
the new Presidential appointment, un- Subpart HRetention of SES
less service as a Presidential appointee
would be continuous.
Provisions
(d) Reinstatement following direct nego- 317.801 Retention of SES provisions.
tiations with an agency. (1) A Presi-
(a) Coverage. This subpart applies
dential appointee who qualifies under
to
paragraph (a) of this section may ini-
(1) A career appointee in the SES ap-
tiate direct negotiations with an agen-
pointed at any time by the President
cy regarding reinstatement under this
to a civilian position in the executive
section.
branch with the advice and consent of
(2) An agency may voluntarily rein-
the Senate at a rate of basic pay which
state a former Presidential appointee
is equal to or greater than the rate
without an order from OPM directing
payable for Executive Level V; or
such action.
(2) A career appointee in the SES
(3) The agency is responsible for as- who is not covered under paragraph
signing the individual to a position for (a)(1) of this section and who was ap-
which he or she meets the qualification pointed on or after November 1, 1986, to
requirements. a civilian position in the executive
(4) Direct negotiations with an agen- branch which is covered by the Execu-
cy do not extend the time limit stated tive Schedule, or the rate of basic pay
in paragraph (b) of this section for for which is fixed by statute at a rate
making application to OPM. equal to one of the levels of the Execu-
(5) OPM may, when appropriate and tive Schedule.
upon request by the agency, allocate (b) Election. (1) At the time of ap-
an additional SES space authority to pointment, an appointee covered by
an agency that voluntarily reinstates a paragraph (a) of this section may elect
former Presidential appointee under to retain some, all, or none of the fol-
this paragraph. lowing SES provisions related to basic
(6) An individual who is reinstated pay (including the aggregate limita-
under this paragraph because of direct tion on pay established by 5 U.S.C.
negotiations with an agency is not en- 5307), performance awards, awarding of
titled to further assistance by OPM. ranks, severance pay, leave, and retire-
(e) Tenure upon reinstatement. (1) An ment. That election will remain in ef-
individual reinstated under 317.703 be- fect for no less than 1 year, unless the
comes an SES career appointee. appointee leaves the position sooner.
(2) An individual reinstated under (2) The appointing agency is respon-
317.703 who was serving an SES proba- sible for advising the appointee of the
tionary period at the time of his or her election opportunity. The election de-
Presidential appointment is required to cision must be in writing.

complete the 1-year SES probationary (c) Change in election. Except as pro-
period upon reinstatement. vided by paragraph (b) of this section,
197
317.901 5 CFR Ch. I (1116 Edition)
a career appointee is permitted to under subpart C of part 430 of this

make an election for purposes of add- chapter.
ing or dropping coverage no more than (1) In this paragraph
once during any twelve-month period. (i) Head of an agency means the head
[50 FR 6154, Feb. 14, 1985, as amended at 56 of an executive or military department
FR 15273, Apr. 16, 1991; 57 FR 54677, Nov. 20, or the head of an independent estab-
1992; 60 FR 6386, Feb. 2, 1995; 69 FR 2050, Jan. lishment.
13, 2004; 72 FR 12035, Mar. 15, 2007] (ii) Noncareer appointee includes an
SES noncareer or limited appointee, an
Subpart IReassignments, appointee in a position filled by Sched-
Transfers, and Details ule C, or an appointee in an Executive
Schedule or equivalent position that is
SOURCE: 54 FR 9760, Mar. 8, 1989, unless oth- not required to be filled competitively.
erwise noted. (2) These restrictions do not apply to
the involuntary reassignment of a ca-
317.901 Reassignments. reer appointee under 5 U.S.C. 4314(b)(3)
(a) In this section, reassignment based on a final performance rating of
means a permanent assignment to an- Unsatisfactory that was issued be-
other SES position within the employ- fore the appointment of a new agency
ing executive agency or military de- head or a new noncareer supervisor as
partment. (See 5 U.S.C. 105 for a defini- defined in paragraph (c)(1) of this sec-
tion of executive agency and 5 U.S.C. tion. If a moratorium is already under-
102 for a definition of military depart- way at the time the final rating is
ment.) issued, then that moratorium must be
(b) A career appointee may be reas- completed before the reassignment ac-
signed to any SES position for which tion can be effected.
qualified in accordance with the fol- (3) A voluntary reassignment during
lowing conditions: the 120-day period is permitted, but the
(1) Reassignment within a commuting appointee must agree in writing before
area. For reassignment within a com- the reassignment.
muting area, the appointee must re-
(4) For the purpose of calculating the
ceive a written notice at least 15 days
120-day period, any days, not to exceed
before the effective date of the reas-
signment. This notice requirement a total of 60, during which the career
may be waived only when the ap- appointee is serving on a detail or
pointee consents in writing. other temporary assignment apart
(2) Reassignment outside of a com- from the appointees regular position
muting area. For reassignment outside shall not be counted. Any days in ex-
of a commuting area, (i) the agency cess of 60 days on one or more details
must consult with the appointee on the or other temporary assignments shall
reasons for, and the appointees pref- be counted.
erences with respect to, the proposed (5) The prohibition in this paragraph
reassignment; and (ii) following such on involuntary reassignments may be
consultation, the agency must provide applied by an agency, at its discretion,
the appointee a written notice, includ- in the case of a detail of an individual
ing the reasons for the reassignment, as the head of an agency or of a non-
at least 60 days before the effective career appointee as a supervisor, or
date of the reassignment. This notice when a noncareer appointee in a dep-
requirement may be waived only when uty position is acting as the agency
the appointee consents in writing. head or in a vacant supervisory posi-
(c) A career appointee may not be in- tion. If the individual later receives a
voluntarily reassigned within 120 days permanent appointment to the position
after the appointment of the head of an without a break in service, the 120-day
agency, or within 120 days after the ap- moratorium initiated by the perma-
pointment of the career appointees nent appointment shall include any
most immediate supervisor who is a days spent in the position on an acting
noncareer appointee and who has the basis.

authority to make an initial appraisal (d) A 15 or 60-day advance notice de-
of the career appointees performance scribed in paragraph (b) of this section
198
may be issued during the 120-day mora- (ii) An SES employee to a position at
torium on the involuntary reassign- the GS15 or equivalent level or below.
ment of a career appointee described in (c) SES career reserved positions. Only
paragraph (c) of this section, but an in- a career SES appointee or a career-
voluntary reassignment may not be ef- type non-SES appointee may be de-
fected until the moratorium has ended. tailed to a career reserved position.
[54 FR 9760, Mar. 8, 1989, as amended at 57 FR (d) SES general positions. Any SES ap-
10124, Mar. 24, 1992; 58 FR 58261, Nov. 1, 1993; pointee or non-SES appointee may be
60 FR 6387, Feb. 2, 1995; 63 FR 34258, June 24, detailed to a general position.
1998]
6387, Feb. 2, 1995]
317.902 Transfers.
(a) Definition. In this section, transfer 317.904 Change in type of SES ap-
means a permanent assignment or appointment.
pointment to another SES position in a An agency may not require a career
different executive agency or military SES appointee to accept a noncareer or
department. limited SES appointment as a condi-
(b) Requirements. Transfers are vol- tion of appointment to another SES
untary and cannot occur without the position. If a career appointee elects to
consent of the appointee and the gain- accept a noncareer or limited appoint-
ing agency, except transfers connected ment, the voluntary nature of the ac-
with a transfer of functions to another tion must be documented in writing be-
agency. fore the effective date of the new ap-
pointment. A copy of such documenta-
317.903 Details. tion must be retained permanently in
(a) Definition. In this section, detail the appointees Official Personnel
means the temporary assignment of an Folder.
SES member to another position (with-
in or outside of the SES) or the tem- Subpart JCorrective Action
porary assignment of a non-SES mem-
ber to an SES position, with the expec- 317.1001 OPM authority for correc-
tation that the employee will return to tive action.
the official position of record upon ex- If OPM finds that an agency has
piration of the detail. For purposes of taken an action contrary to law or reg-
pay and benefits, the employee con- ulation under this part, it may require
tinues to encumber the position from the agency to take appropriate correc-
which detailed. The provisions of this tive action.
section cover details within or outside
of the employing agency. [54 FR 9761, Mar. 8, 1989]
(b) Time limits. (1) Details within an
executive agency or military depart- PART 319EMPLOYMENT IN SEN-
ment must be made in no more than IOR-LEVEL AND SCIENTIFIC AND
120-day increments. PROFESSIONAL POSITIONS
(2) An agency may not detail an SES
employee to unclassified duties for Subpart AGeneral
more than 240 days.
(3) An agency must use competitive Sec.
procedures when detailing a non-SES 319.101 Coverage.
employee to an SES position for more 319.102 Senior-level positions.
than 240 days unless the employee is el- 319.103 Scientific and professional positions.
igible for a noncompetitive career SES 319.104 Applicable instructions.
appointment. 319.105 Reporting requirements.
(4) An agency must obtain OPM ap-
Subpart BPosition Allocations and
proval for a detail of more than 240
Establishment
days if the detail is of:
(i) A non-SES employee to an SES 319.201 Coverage.

position that supervises other SES po- 319.202 Allocation of positions.
sitions; or 319.203 Establishment of positions.
199
319.101 5 CFR Ch. I (1116 Edition)
Subpart CQualifications Requirements brary, 1900 E Street, NW., Washington

DC 20415.
319.301 Qualifications standards.
(c) An ST position must be engaged
319.302 Individual qualifications.
in research and development in the
Subpart DRecruitment and Examination physical, biological, medical, or engi-
neering sciences, or a closely related
319.401 Senior-level positions. field.
319.402 Scientific and professional positions. (d) ST positions are in the competi-
AUTHORITY: 5 U.S.C. 1104, 3104, 3324, 3325, tive service.
5108, and 5376.
319.104 Applicable instructions.
SOURCE: 60 FR 6387, Feb. 2, 1995, unless oth-
erwise noted. Provisions in statute, Executive
order, or regulations that relate in gen-
Subpart AGeneral eral to competitive and excepted serv-
ice positions and employment apply to
319.101 Coverage. positions and employment under the
SL and ST systems unless there is a
(a) This part covers senior-level (SL) specific provision to the contrary.
and scientific and professional (ST) po-
sitions that are classified above GS15 319.105 Reporting requirements.
and are paid under 5 U.S.C. 5376. See 5
CFR part 534, subpart E, for pay provi- Agencies shall report such informa-
sions. tion as may be requested by OPM relat-
ing to SL and ST positions and employ-
(b) Positions that meet the criteria
ees.
for placement in the Senior Executive
Service (SES) under 5 U.S.C. 3132(a)
may not be placed in the SL or ST sys- Subpart BPosition Allocations
tem and are not covered by this part. and Establishment
319.102 Senior-level positions. 319.201 Coverage.
(a) SL positions are positions classi- This section applies to SL positions
fied above GS15 pursuant to 5 U.S.C. in an executive agency per 5 U.S.C. 5108
5108 that are not covered by other pay and ST positions in any agency per 5
systems (e.g. the SES and ST systems). U.S.C. 3104.
(b) Positions in agencies that are ex-
cluded from 5 U.S.C. chapter 51 (Classi- 319.202 Allocation of positions.
fication) under section 5102(a), or posi- SL and ST positions may be estab-
tions that meet one of the exclusions lished only under a position allocation
in section 5102(c), are excluded from approved by OPM.
the SL system.
(c) SL positions in the executive 319.203 Establishment of positions.
branch are in the competitive service (a) Prior approval of OPM is not re-
unless the position is excepted by stat- quired to establish individual SL and
ute, Executive order, or the Office of ST positions within an allocation, but
Personnel Management (OPM). the positions must be established in ac-
cordance with the standards and proce-
319.103 Scientific and professional dures in paragraph (b) of this section.
positions. OPM reserves the right to require the
(a) ST positions are established under prior approval of individual positions if
5 U.S.C. 3104 to carry out research and the agency is not in compliance with
development functions that require the these standards and procedures.
services of specially qualified per- (b) Before an SL or ST position may
sonnel. be established, an agency must:
(b) Research and development func- (1) Prepare a description of the du-
tions are defined in The Guide to Per- ties, responsibilities, and supervisory
sonnel Data Standards under the data relationships of the position; and
element Functional Classification. (2) Determine, consistent with pub-

The guide is available for inspection at lished position classification standards
the Office of Personnel Management li- and guides and accepted classification
200
principles, that the position is properly 319.302 Individual qualifications.

classified above GS15. In addition, for
Agency heads are delegated author-
an ST position an agency must deter-
ity to approve the qualifications of in-
mine that the position meets the func-
dividuals appointed to SL and ST posi-
tional research and development cri-
tions. The agency head must determine
teria described in 319.103.
that the individual meets the qualifica-
tions standards for the position to
Subpart CQualifications which appointed.
Requirements
319.301 Qualifications standards. Subpart DRecruitment and
(a) General. Agency heads are respon-
Examination
sible for establishing qualifications 319.401 Senior-level positions.
standards in accordance with the cri-
teria in this section. (a) General. SL positions may be in
(1) The standard must be in writing either the competitive or excepted
and identify the breadth and depth of service. This section only applies to ap-
the knowledges, skills, and abilities, or pointments in the competitive service
other qualifications, required for suc- from a civil service register. Reassign-
cessful performance in the position. ments, promotions, transfers, and rein-
(2) Each criterion in the standard statements to SL positions in the com-
must be job related. petitive service shall be made in ac-
(3) The standard may not include any cordance with applicable statutory and
criterion prohibited by law or regula- regulatory provisions. Employment of
tion. SL employees in the excepted service is
(b) Standards for senior-level positions. covered by 5 CFR, part 302.
(1) The standard must be specific (1) Agency heads are delegated au-
enough to enable applicants to be rated thority to recruit and examine appli-
and ranked according to their degree of cants for SL positions in the competi-
qualifications when the position is tive service, establish competitor in-
being filled on a competitive basis. ventories, and issue certificates of eli-
(2) The standard may not include a gibility in conformance with the re-
minimum length of experience or min- quirements of this section, other appli-
imum education requirement beyond cable regulations, and statute.
that authorized for similar positions in (2) Agencies shall take such action as
the General Schedule. OPM may require to correct an action
(c) Standards for scientific and profes- taken under delegated authority.
sional positions. (1) Unless the agency (3) Delegated authority may be ter-
obtains the approval of OPM, the minated or suspended at any time by
standard must provide that the can- OPM for reasons such as, but not lim-
didate have at least 3 years of special- ited to:
ized experience in, or closely related (i) Evidence of unequal treatment of
to, the field in which the candidate will candidates; or
work. At least 1 year of this experience (ii) Identifiable merit system abuses.
must have been in planning and exe- (b) Recruitment. (1) A recruiting plan,
cuting difficult programs of national with appropriate emphasis on affirma-
significance or planning and executing tive recruitment, must be developed
specialized programs that show out- and followed.
standing attainments in the field of re- (2) Vacancy announcements must re-
search or consultation. main open for a minimum of 14 cal-
(2) Agencies may require that at endar days. The closing date may not
least 1 year of the specialized experi- be a nonworkday.
ence must be at least equivalent to ex- (3) State Job Service offices must be
perience at GS15. notified of the vacancy in accordance
(3) Agencies may require applicants with 5 CFR 330.102. Publication in
to furnish positive evidence that they OPMs listing of Senior Executive
have performed highly creative or out- Service and other executive vacancies,
standing research where similar abili- which is provided the offices, will sat-
ties are required in the ST position. isfy this requirement.
201
319.402 5 CFR Ch. I (1116 Edition)
(c) Evaluation and selection. Examina- 330.211 Exceptions to RPL placement pri-
tion and selection procedures, and ority.
rights of applicants, are subject to the 330.212 Agency flexibilities.
330.213 Selection from an RPL.
same provisions in statute and regula- 330.214 Appeal rights.
tion that govern civil service examina-
tions and appointments in general. Subpart C [Reserved]
(d) Records. (1) Agencies must main-
tain records sufficient to allow recon- Subpart DPositions Restricted to
struction of the merit staffing process. Preference Eligibles
(2) Records must be kept for 2 years
330.401 Restricted positions.
after an appointment, or, if no appoint- 330.402 Exceptions to restriction.
ment is made, for 2 years after the 330.403 Positions brought into the competi-
closing date of the vacancy announce- tive service.
ment. 330.404 Displacement of preference eligibles
occupying restricted positions in con-
319.402 Scientific and professional tracting out situations.
positions. 330.405 Agency placement assistance.
330.406 OPM placement assistance.
(a) ST positions are filled without
330.407 Eligibility for the Interagency Ca-
competitive examination under 5 reer Transition Assistance Plan.
U.S.C. 3325.
(b) ST positions are not subject to Subpart ERestrictions To Protect
the citizenship requirements in 5 CFR Competitive Principles
part 338, subpart A. Agencies, however,
must observe any restrictions on the 330.501 Purpose.
330.502 General restriction on movement
employment of noncitizens in applica-
after competitive appointment.
ble appropriations acts. 330.503 Ensuring agency compliance with
(c) ST employees acquire competitive the principles of open competition.
status immediately upon appointment. 330.504 Exception to the general restriction.
They are not required to serve a proba-
tionary or trial period. Subpart FAgency Career Transition As-
sistance Plan (CTAP) for Local Surplus
PART 330RECRUITMENT, SELEC- and Displaced Employees
TION, AND PLACEMENT (GEN- 330.601 Purpose.
ERAL) 330.602 Definitions.
330.603 Requirements for agency CTAPs.
Subpart AFilling Vacancies in the 330.604 Requirements for agency CTAP se-
lection priority.
Competitive Service 330.605 Agency responsibilities for deciding
Sec. who is well-qualified.
330.101 Definitions. 330.606 Minimum criteria for agency defini-
330.102 Methods of filling vacancies. tion of well-qualified.
330.103 Requirement to notify OPM. 330.607 Applying CTAP selection priority.
330.104 Requirements for vacancy announce- 330.608 Other agency CTAP responsibilities.
ments. 330.609 Exceptions to CTAP selection pri-
330.105 Instructions on how to add a va- ority.
cancy announcement to USAJOBS. 330.610 CTAP eligibility period.
330.106 Funding. 330.611 Establishing CTAP selection pri-
ority.
Subpart BReemployment Priority List (RPL) 330.612 Proof of eligibility.
330.613 OPMs role in CTAP.
330.201 Purpose.
330.202 Definitions. Subpart GInteragency Career Transition
330.203 RPL eligibility. Assistance Plan (ICTAP) for Displaced
330.204 Agency requirements and respon- Employees
sibilities.
330.205 Agency RPL applications. 330.701 Purpose.
330.206 RPL registration timeframe and po- 330.702 Definitions.
sitions. 330.703 Agency responsibilities for deciding
330.207 Registration area. who is well-qualified.
330.208 Duration of RPL registration. 330.704 Minimum criteria for agency defini-
330.209 Removal from an RPL. tion of well-qualified.
330.210 Applying RPL placement priority. 330.705 Applying ICTAP selection priority.
202
330.706 Other agency ICTAP responsibil- employees mean agency employees serv-
ities. ing under career or career-conditional
330.707 Exceptions to ICTAP selection pri- appointments, in tenure group I or II,
ority.
330.708 ICTAP eligibility period.
respectively.
330.709 Establishing ICTAP selection pri- Position change has the meaning
ority. given that term in 210.102 of this chap-
330.710 Proof of eligibility. ter.
330.711 OPMs role in ICTAP. Rating of record has the meaning
given that term in 351.203 of this chap-
Subparts HI [Reserved]
ter.
Subpart JProhibited Practices Representative rate has the meaning
given that term in 351.203 of this chap-
330.1001 Withdrawal from competition. ter.
Subparts KL [Reserved] Tenure groups are described in
351.501 of this chapter.
AUTHORITY: 5 U.S.C. 1104, 1302, 3301, 3302, (b) In this subpart:
3304, and 3330; E.O. 10577, 3 CFR, 195458 Vacancy means a vacant position in
Comp., p. 218; Section 330.103 also issued the competitive service, regardless of
under 5 U.S.C. 3327; Subpart B also issued whether the position will be filled by
under 5 U.S.C. 3315 and 8151; Section 330.401 permanent or time-limited appoint-
also issued under 5 U.S.C. 3310; Subparts F ment, for which an agency is seeking
and G also issued under Presidential Memo-
applications from outside its current
randum on Career Transition Assistance for
Federal Employees, September 12, 1995; Sub- permanent competitive service work-
part G also issued under 5 U.S.C. 8337(h) and force.
8456(b).
330.102 Methods of filling vacancies.
SOURCE: 75 FR 67593, Nov. 3, 2010, unless
otherwise noted. An agency may fill a vacancy in the
competitive service by any method au-
Subpart AFilling Vacancies in thorized in this chapter, including
the Competitive Service competitive appointment from a list of
eligibles, noncompetitive appointment
330.101 Definitions. under special authority, reinstatement,
transfer, reassignment, change to
(a) In this part:
lower grade, or promotion. The agency
Agency means:
must exercise its discretion in each
(1) An Executive department listed at
personnel action solely on the basis of
5 U.S.C. 101;
(2) A military department listed at 5 merit and fitness, without regard to
U.S.C. 102; political or religious affiliation, mar-
(3) A Government owned corporation ital status, or race, and veterans pref-
in the executive branch; erence entitlements.
(4) An independent establishment in 330.103 Requirement to notify OPM.
the executive branch as described at 5
U.S.C. 104; and An agency must provide the vacancy
(5) The Government Printing Office. announcement information to OPM
Component means the first major sub- promptly when:
division of an agency, separately orga- (a) Filling a vacancy for more than
nized, and clearly distinguished in 120 days from outside the agencys cur-
work function and operation from rent permanent competitive service
other agency subdivisions (e.g., the In- workforce, as required by the Inter-
ternal Revenue Service under the De- agency Career Transition Assistance
partment of the Treasury or the Na- Plan, subpart G of this part, unless the
tional Park Service under the Depart- action to be taken is listed in subpart
ment of the Interior). G as an exception to that subpart;
Local commuting area has the meaning (b) Filling any vacancy under the
given that term in 351.203 of this chap- agencys merit promotion procedures
ter. when the agency will accept applica-

Permanent competitive service work- tions from outside its permanent com-
force and permanent competitive service petitive service workforce; and
203
330.104 5 CFR Ch. I (1116 Edition)
(c) Filling a vacancy by open com- (2) Agencies may use the rec-
petitive examination, including direct ommended reasonable accommodation
hire procedures under part 337 of this statement located on OPMs USAJOBS
chapter, or in the Senior Executive website.
Service, as required by 5 U.S.C. 3327.
330.105 Instructions on how to add a
330.104 Requirements for vacancy vacancy announcement to
announcements. USAJOBS.
(a) Each vacancy announcement An agency can find the instructions
must contain the following informa- to add a vacancy announcement to
tion: USAJOBS on OPMs Web site at http://
(1) Name of issuing agency; www.usajobs.gov. An electronic file of
(2) Announcement number; the complete vacancy announcement
(3) Position title, series, pay plan, must be included within USAJOBS.
and grade (or pay rate);
(4) Duty location; 330.106 Funding.
(5) Number of vacancies; Each year, OPM will charge a fee for
(6) Opening date and application the agencys share of the cost of pro-
deadline (closing date) and any other viding employment information to the
information concerning how receipt of public and to Federal employees as au-
applications will be documented, such thorized by 5 U.S.C. 3330(f).
as by date of receipt or postmark, and
considered, such as by cut-off dates in
open continuous announcements;
Subpart BReemployment Priority
(7) Qualification requirements, in- List (RPL)
cluding knowledge, skills, and abilities
330.201 Purpose.
or competencies;
(8) Starting pay; (a) The Reemployment Priority List
(9) Brief description of duties; (RPL) is a required component of an
(10) Basis of rating; agencys placement programs to assist
(11) What to file; its current and former competitive
(12) Instructions on how to apply; service employees who will be or were
(13) Information on how to claim vet- separated by reduction in force (RIF)
erans preference, if applicable; under part 351 of this chapter, or who
(14) Definition of well-qualified, as have recovered from a compensable
required by subparts F and G of this work-related injury after more than 1
part; year, as required by part 353 of this
(15) Information on how candidates chapter. In filling vacancies, an agency
eligible under subparts F and G of this must give its RPL registrants place-
part may apply, including required ment priority for most competitive
proof of eligibility; service vacancies before hiring some-
(16) Contact person or contact point; one from outside its own permanent
(17) Equal employment opportunity competitive service workforce. An
statement (Agencies may use the rec- agency may choose to consider RPL
ommended equal employment oppor- placement priority candidates before
tunity statement located on OPMs other agency permanent competitive
USAJOBS website.); and service employees under its Career
(18) Reasonable accommodation Transition Assistance Plan (CTAP) es-
statement. tablished under subpart F of this part,
(b)(1) An agency may use wording of after fulfilling agency obligations to
its choice in its statement that con- its CTAP selection priority candidates.
veys the availability of reasonable ac- (b) Agencies must use an RPL to give
commodation required by placement priority to their:
330.104(a)(18). In its reasonable accom- (1) Current competitive service em-
modation statement, an agency may ployees with a specific notice of RIF
not list types of medical conditions or separation or a Certification of Ex-

impairments appropriate for accommo- pected Separation issued under part 351
dation. of this chapter;
204
(2) Former competitive service em- (3) Is physically qualified, with or

ployees separated by RIF under part without reasonable accommodation, to
351 of this chapter; and perform the duties of the position;
(3) Former competitive service em- (4) Meets any special OPM-approved
ployees fully recovered from a compen- qualifying conditions for the position;
sable injury (as defined in part 353 of and
this chapter) after more than 1 year. (5) Meets any other applicable re-
(c) All agency components within the quirements for competitive service ap-
local commuting area use a single RPL pointment.
and are responsible for giving place- RPL eligible means a current or
ment priority to the agencys RPL reg- former employee of the agency who
istrants.
meets the conditions in either para-
(d) With prior OPM approval, an
graph (a) or (b) of 330.203. As used in
agency may operate an alternate place-
this subpart, RPL eligible and eli-
ment program which satisfies the basic
gible are synonymous.
requirements of this subpart, including
veterans preference, as an exception to RPL placement priority candidate
the RPL regulations under this sub- means an RPL registrant who is quali-
part. This provision is limited to reem- fied and available for a specific agency
ployment priority because of RIF sepa- vacancy.
ration and allows agencies to adopt dif- RPL registrant means an RPL eligible
ferent placement strategies that are ef- who submitted a timely RPL applica-
fective for their programs and satisfy tion and who is registered on the agen-
employee entitlements to reemploy- cys RPL. As used in this subpart,
ment priority. RPL registrant and registrant are
synonymous.
330.202 Definitions. Vacancy means any vacant position
In this subpart: to be filled by a competitive service
Competitive area means a competitive permanent or time-limited appoint-
area as described in 351.402 of this ment.
chapter.
Competitive service appointment in- 330.203 RPL Eligibility.
cludes new appointments, reinstate- An employee must meet the condi-
ments, reemployment, and transfers as tions in either paragraph (a) or (b) of
defined in 210.102 of this chapter, and this section to be an RPL eligible.
conversions as defined in OPMs Guide (a) For eligibility based on part 351 of
to Processing Personnel Actions. this chapter, the employee:
Injury, in relation to the RPL, has
(1) Must be serving in an appoint-
the meaning given that term in 353.102
ment in the competitive service in ten-
of this chapter.
ure group I or II;
Overseas has the meaning given that
term in 210.102 of this chapter. (2) Must have received either a spe-
Qualified refers to an RPL registrant cific notice of separation or a Certifi-
who: cation of Expected Separation under
(1) Meets OPM-established or -ap- part 351 of this chapter that has not
proved qualification standards and re- been cancelled, rescinded, or modified
quirements for the position, including so that the employee is no longer under
minimum educational requirements, notice of separation;
and agency-established selective fac- (3) Must have received a rating of
tors (as this term is used in OPMs record of at least fully successful
Operating Manual: Qualification (Level 3) or equivalent as the most re-
Standards for General Schedule Posi- cent performance rating of record; and
tions); (4) Must not have declined an offer
(2) Will not cause an undue interrup- under part 351, subpart G, of this chap-
tion, as defined in 351.203 of this chapter of a position with the same type of
ter, that would prevent the completion work schedule and with a representa-
of required work by the registrant 90 tive rate at least as high as that of the
days after the registrant is placed in position from which the employee will
the position; be separated.
205
330.204 5 CFR Ch. I (1116 Edition)
(b) For eligibility based on part 353 of positions within the agency for which
this chapter, the employee or former they are qualified and interested.
employee: (e) An agency must give RPL reg-
(1) Must be serving in, or separated istrants placement priority for per-
from, an appointment in the competi- sonnel actions as described in 330.210.
tive service in tenure group I or II; (f) An agency must not remove an in-
(2) Must either have accepted a posi- dividual from the RPL under
tion at a lower grade or pay level in 330.209(a)(1), (b)(1), or (b)(2) without
lieu of separation or have been sepa- evidence (such as a Postal Service re-
rated because of a compensable injury turn receipt signed by addressee only)
or disability. (For the purposes of this showing that the offer, inquiry, or
subpart, any reference to the position scheduled interview was made in writ-
from which an individual was or will be ing. The written offer, inquiry, or
separated includes the position from scheduled interview must clearly state
which the RPL eligible accepted the that failure to respond will result in re-
lower graded or pay level position moval from the RPL for positions at
under this paragraph.); that grade or pay level and for posi-
(3) Must have fully recovered more tions at lower grades and pay levels for
than 1 year after compensation began; which registered.
and
(4) Must have received notification 330.205 Agency RPL applications.
from the Office of Workers Compensa- Agencies may develop their own ap-
tion Programs, Department of Labor, plication format which must, at a min-
that injury compensation benefits have imum:
ceased or will cease. (a) Allow an RPL eligible to register
for positions at the same representa-
330.204 Agency requirements and re- tive rate and work schedule (full-time,
sponsibilities. part-time, seasonal, or intermittent) as
(a) An agency must establish policies the position from which the RPL eligi-
and maintain an RPL for each local ble was, or will be, separated; and
commuting area in which the agency (b) Allow an RPL eligible to specify
has RPL eligibles. the conditions under which he or she
(b) An agency must give each RPL el- will accept a position, including grades
igible information about its RPL pro- or pay levels, appointment type (per-
gram, including Merit Systems Protec- manent or time-limited), occupations
tion Board appeal rights under 330.214, (e.g., position classification series or
when: career groups), and minimum number
(1) The agency issues a RIF separa- of hours of work per week, as applica-
tion notice or a Certification of Ex- ble.
pected Separation under part 351 of
this chapter; or 330.206 RPL registration timeframe
(2) The employee accepts a position and positions.
at a lower grade or pay level or is sepa- (a) To register, an RPL eligible must:
rated from the agency because of a (1) Meet the eligibility conditions
compensable work-related injury. under 330.203(a) or (b);
(c) An agency must register an RPL (2) Complete an RPL application pre-
eligible on the appropriate RPL no scribed by the current or former agen-
later than 10 calendar days after re- cy and keep the agency informed of
ceiving the eligibles written applica- any significant changes in the informa-
tion. tion provided; and
(d) Agencies must include in their (3) Submit the RPL application on or
RPL policies established under this before the RIF separation date or, if an
subpart how they will assist RPL eligi- RPL eligible under 330.203(b), within
bles who: 30 calendar days after the:
(1) Request an RPL application; (i) Date injury compensation benefits
(2) Request help in completing the cease; or
RPL application; and (ii) Date the Department of Labor de-

(3) Request help in identifying and nies an appeal for continuation of in-
listing on the RPL application those jury compensation benefits.
206
(b) RPL eligibles may register and re- eligible and the agency, up to agency-
ceive placement priority for positions wide as required by 5 U.S.C. 8151. (For
for which they are qualified and that: example, an agency could consider the
(1) Have a representative rate no number and location(s) of its positions
higher than the position from which and funding availability when estab-
they were, or will be, separated unless lishing its policies on expanding con-
the eligible was demoted as a tenure sideration.) In lieu of expanded reg-
group I or II employee in a previous istration, the agency policy may pro-
RIF. If the eligible was so demoted, the vide for the RPL eligible to elect to re-
eligible can register for positions with ceive placement priority for the next
a representative rate up to the rep- best available position in the former
resentative rate of the position held on local commuting area.
a permanent appointment immediately (e) If the RPL eligible was, or will be,
before the RIF demotion was effective; separated from an overseas position
(2) Have no greater promotion poten- (see part 301 of this chapter), RPL reg-
tial than the position from which they istration is limited to the local com-
were, or will be, separated; and muting area in which the eligible was,
(3) Have the same type of work sched- or will be, separated, unless:
ule as the position from which they (1) The agency approves a written re-
were, or will be, separated. quest by the RPL eligible for registra-
tion in the local commuting area from
330.207 Registration area. which employed for overseas service, or
(a) Except as provided in paragraphs in another area within the United
(b) through (e) of this section, RPL reg- States that is mutually acceptable to
istration is limited to the local com- the eligible and the agency; or
muting area in which the eligible was, (2) The agency has a formal program
or will be, separated. for rotating employees between over-
(b) If the agency has, or will have, no seas areas and the United States, and
competitive service positions remain- the RPL eligibles preceding and pro-
ing in the local commuting area from spective overseas service would exceed
which the RPL eligible will be sepa- the maximum duration of an overseas
rated under part 351 of this chapter, the duty tour in the rotation program. In
agency may designate a different local this case, the eligible may register for
commuting area where there are con- a local commuting area within the
tinuing positions for the RPL eligible United States that is mutually accept-
to exercise placement priority. The able to the eligible and the agency.
agency has sole discretion over wheth-
er to offer this option and which local 330.208 Duration of RPL registration.
commuting area to designate, taking (a) RPL registration expires 2 years
into consideration the size and loca- from the date of reduction in force sep-
tions of its workforce, available vacan- aration under part 351 of this chapter,
cies, and available funds. or 2 years from the date the agency
(c) If the RPL eligible agreed to registers the RPL eligible because of
transfer with his or her function under recovery from a compensable work in-
part 351 of this chapter but will be sep- jury under 330.206(a)(3)(i) or (ii). An
arated by RIF from the gaining com- RPL eligible remains registered for the
petitive area, registration is limited to full 2-year period unless the registrant
the RPL covering the gaining competi- is removed from the RPL for a reason
tive areas local commuting area. specified in 330.209.
(d) For an individual who is eligible (b)(1) OPM may extend the registra-
under 330.203(b), registration is inition period when an RPL eligible does
tially limited to the RPL covering the not receive a full 2 years of placement
local commuting area of the position priority, for example, because of an
from which the employee was sepa- agencys administrative or procedural
rated. The agency must establish a fair error.
and consistent policy that permits (2) Either the agency or the RPL eli-
RPL eligibles to expand their registra- gible may request OPM to extend the
tion to available local commuting registration period under paragraph
areas mutually acceptable to the RPL (b)(1) of this section. The request must
207
330.209 5 CFR Ch. I (1116 Edition)
describe the administrative or proce- (b) An RPL registrant is removed

dural error that caused the RPL eligi- from the RPL at registered grades or
ble to be registered for less than the pay levels with a representative rate at
full 2-year period. OPM may request and below the representative rate of a
additional information either from the position offered by the agency if the of-
agency or the RPL eligible in connec- fered position is below the last grade or
tion with any such request. OPM will pay level held and the registrant:
notify both the agency and the RPL el- (1) Declines or fails to reply to the
igible of the decision to approve or agencys inquiry about an RPL offer of
deny an extension request. OPMs deci- a career, career-conditional, or ex-
sion regarding an extension request is
cepted appointment without time limit
not subject to appeal under 330.214.
for a position meeting the acceptable
330.209 Removal from an RPL. conditions shown on the RPL reg-
istrants application; or
(a) An RPL registrant is removed (2) Declines or fails to appear for a
from the RPL at all registered grades
scheduled interview.
or pay levels if the registrant:
(c) An RPL registrant removed from
(1) Declines or fails to reply to the
the RPL under paragraph (b) of this
agencys inquiry about an RPL offer of
a career, career-conditional, or ex- section at lower grades or pay levels
cepted appointment without time limit than the last grade or pay level held re-
for a position having the same type of mains on the RPL for positions with a
work schedule and a representative representative rate higher than the of-
rate at least as high as the position fered position up to the grade or pay
from which the registrant was, or will level last held, unless registration ex-
be, separated; pires or otherwise terminates.
(2) Receives a written cancellation, (d) Declination of time-limited em-
rescission, or modification to: ployment does not affect RPL eligi-
(i) The RIF separation notice or Cer- bility.
tification of Expected Separation so
that the employee no longer meets the 330.210 Applying RPL placement pri-
conditions for RPL eligibility in ority.
330.203(a); or (a) RPL placement priority applies
(ii) The notification of cessation of to:
injury compensation benefits so that (1) Permanent and time-limited posi-
injury compensation benefits continue; tions to be filled by competitive serv-
(3) Separates from the agency for any ice appointment; and
other reason (such as retirement, res- (2) The grade or pay level at which
ignation, or transfer) before the RIF the agency fills the position. If a posi-
separation effective date. Registration tion is available at multiple grades or
continues if the RPL registrant retires pay levels, placement priority applies
on or after the RIF separation effective at the grade or pay level at which the
date. This paragraph does not apply to position is ultimately filled.
an RPL registrant under 330.203(b);
(b) An agency must not effect a per-
(4) Requests the agency to remove his
manent or time-limited competitive
or her name from the RPL;
service appointment of another indi-
(5) Is placed in a position without
vidual if there is an RPL placement
time limit at any grade or pay level
priority candidate registered for the
within the agency;
vacancy, unless the action is listed as
(6) Is placed in a position under a ca-
reer, career-conditional, or excepted an exception in 330.211.
appointment without time limit at any (c) An agency must document that
grade or pay level in any agency; or there are no RPL placement priority
(7) Leaves the area covered by an candidates for the vacancy when re-
overseas RPL (see 5 CFR part 301) or is questing a competitive certificate of
eligibles under part 332 of this chapter.
ineligible for continued overseas em-

ployment because of previous service Similarly, an agency must offer the va-
or residence. cancy to any RPL placement priority
208
candidate(s) before effecting an ap- less (only to another temporary ap-

pointment under a noncompetitive appointment not to exceed 1 year or less);
pointing authority, such as under part (h) Extend an employees temporary
315 of this chapter. or term appointment up to the max-
(d) Once an agency has ensured there imum permitted by the appointment
are no RPL placement priority can- authority or as authorized by OPM; or
didates for a particular vacancy and (i) Appoint an individual under an ex-
documents in writing an employment cepted service appointing authority.
offer that is accepted by another indi-
vidual, the agency may fulfill that em- FR 28215, May 11, 2012]
ployment offer to that individual.
330.212 Agency flexibilities.
330.211 Exceptions to RPL placement
priority. An agency may provide the following
flexibilities within its written RPL
An agency may effect the following policies established under this subpart:
personnel actions as exceptions to
(a) Allow RPL eligibles to register
330.210:
only for certain sub-areas of a local
(a) Fill a vacancy with an employee commuting area when the agency has
of the agencys current permanent components dispersed throughout a
competitive service workforce through large commuting area. However, an
detail or position change, subject to agency cannot deny registration
the requirements of subpart F of this throughout the local commuting area
part; if the RPL eligible requests it.
(b) Appoint a 10-point preference eli- (b) Suspend an RPL registration for
gible through an appropriate appoint- all positions, permanent and time-lim-
ing authority; ited, if the agency is unable, through
(c) Appoint a current or former em- documented written means, to contact
ployee exercising restoration rights the RPL registrant; however, the agen-
under part 353 of this chapter based on cy must reactivate an RPL registra-
return from military service or recov- tion when the registrant submits an
ery from a compensable injury or dis- updated application or otherwise re-
ability within 1 year; quests reactivation in writing. Reg-
(d) Appoint a current or former em- istration suspension and reactivation
ployee exercising other statutory or do not change the expiration date of
regulatory reemployment rights; the original registration period set in
(e) Fill a specific position when all 330.208.
RPL placement priority candidates de- (c)(1) Modify the OPM or OPM-ap-
cline an offer of the position or fail to proved qualification standard used to
respond to a written agency inquiry determine if an RPL eligible is quali-
about their availability; fied for a position, provided the:
(f) Convert an employee serving (i) Exception is applied consistently
under an appointment that provides and equitably in filling a position;
noncompetitive conversion eligibility (ii) RPL registrant meets any min-
to a competitive service appointment, imum educational requirements for the
including from: position; and
(1) A Veterans Recruitment Appoint- (iii) RPL registrant has the capacity,
ment under part 307 of this chapter; adaptability, and special skills needed
(2) An appointment under 5 U.S.C. to satisfactorily perform the duties and
3112 and part 316 of this chapter of a responsibilities of the position, as de-
veteran with a compensable service- termined by the agency.
connected disability of 30 percent or (2) Any modification to the qualifica-
more; and tion standard under paragraph (c)(1) of
(3) An excepted service appointment this section does not authorize a waiv-
under part 213 of this chapter; er of the selection order required under
(g) Reappoint without a break in 330.213.
service to the same position currently (d) Permit RPL eligibles to register
held by an employee serving under a for positions with work schedules dif-
temporary appointment of 1 year or ferent from the work schedule of the
209
330.213 5 CFR Ch. I (1116 Edition)
position from which they were, or will 5 additional points to veterans pref-
be, separated. erence eligibles under 5 U.S.C.
(e) Permit RPL registrants to update 2108(3)(A) and (B), and 10 additional
their qualifications or conditions for points to veterans preference eligibles
accepting positions during the RPL under 5 U.S.C. 2108(3) (C) through (G).
registration period. If an agency pro- (2) RPL placement priority can-
vides this flexibility in its RPL poli- didates with an eligible numerical
cies, the agency must update the RPL score are ranked in the following order:
registrants registration information (i) Veterans preference eligibles hav-
within 10 calendar days of receipt of ing a compensable service-connected
the registrants written request. The disability of 10 percent or more in the
updated registration information order of their augmented ratings, un-
would apply only to those vacancies be- less the position to be filled is a profes-
coming available after the agency up- sional or scientific position at or above
dates the RPL registrants registra- the GS9 level, or equivalent; and
tion. (ii) All other candidates in the order
of their augmented ratings. At each
330.213 Selection from an RPL. score, candidates entitled to 10-point
(a) Methods. An agency must adopt veterans preference will be entered
one of the selection methods in para- ahead of all other candidates, and
graphs (b), (c), or (d) of this section for those entitled to 5-point veterans pref-
a single RPL. The agency may adopt erence will be entered ahead of those
the same method for each RPL it es- candidates not entitled to veterans
tablishes or may vary the method by preference.
location, but it must adopt a written (3) The agency must make its selec-
policy for each RPL it establishes and tion from among the highest three can-
maintains. While an agency may not didates available and may not pass
vary the method used for an individual over a veterans preference eligible to
vacancy, it may at any time change select a nonpreference eligible.
the selection method for all positions (d) Alternative rating and selection. (1)
covered by a single RPL. For each vacancy to be filled, the agen-
(b) Retention standing order. For each cy may use alternative rating and se-
vacancy to be filled, the agency places lection procedures (also called cat-
qualified RPL placement priority can- egory rating) as described in 5 U.S.C.
didates in tenure group and subgroup 3319 and part 337 of this chapter. The
order in accordance with part 351 of agency assesses RPL placement pri-
this chapter. In making a selection, an ority candidates against job-related
agency may not pass over a candidate evaluation criteria and then places
in tenure group I to select from tenure them into two or more pre-defined
group II and, within a tenure group, quality categories.
may not pass over a candidate in a (2) To use this method, the agency
higher subgroup to select from a lower must:
subgroup. Within a subgroup, an agen- (i) Establish a system for evaluating
cy may select any candidate without RPL placement priority candidates
regard to order of retention standing. that provides for two or more quality
(c) Numerical scoring. (1) For each va- categories;
cancy to be filled, the agency rates (ii) Define each quality category
RPL placement priority candidates ac- through job analysis conducted in ac-
cording to their job experience and cordance with the Uniform Guidelines
education. The agency must use job-re- on Employee Selection Procedures at
lated evaluation criteria for the posi- 29 CFR part 1607 and part 300 of this
tion to be filled that can distinguish chapter. Each quality category must
differences in qualifications measured have a clear definition that distin-
and must apply the criteria in a fair guishes it from other quality cat-
and consistent manner. The agency as- egories; and
signs the candidates a numerical score (iii) Place candidates into the appro-
of at least 70 on a scale of 100, based on priate quality categories based upon

the evaluation criteria developed under their job-related competencies, knowl-
this paragraph. The agency must grant edge, skills, and abilities.
210
(3) Veterans preference must be ap- Subpart DPositions Restricted to

plied as prescribed in 5 U.S.C. 3319(b) Preference Eligibles
and (c)(2). Veterans preference points
as prescribed in paragraph (c)(1) of this 330.401 Restricted positions.
section are not applied under this Under 5 U.S.C. 3310, competitive ex-
method. aminations for the positions of custo-
(4) The agency must make its selec- dian, elevator operator, guard, and
tion from the highest quality category messenger (referred to in this subpart
in accordance with its category rating as restricted positions) are restricted to
policy established under part 337 of this preference eligibles as long as a pref-
chapter. erence eligible is available. For more
(e) Application-based procedure. (1) An information on these restricted posi-
agency may adopt an application-based tions, refer to the OPM Delegated Ex-
procedure which allows RPL reg- amining Operations Handbook.
istrants to apply directly for RPL 330.402 Exceptions to restriction.
placement priority under an advertised
(a) An agency may fill a restricted
vacancy announcement. Before using
position with a nonpreference eligible
this procedure, the agency must estab-
under the following circumstances:
lish policies and procedures for: (1) By competitive examination when
(i) Informing RPL registrants of no preference eligible applies;
available vacancies; (2) By position change (promotion,
(ii) Informing RPL registrants of ac- demotion, or reassignment) to a posi-
ceptable application formats, including tion in the organizational entity (i.e.,
how to permanently change initial reg- the part of an agency from which selec-
istration information and how to apply tions are normally made for promotion
changes only to the specific vacancy or reassignment to the position in
announcement for which the applica- question) in which the nonpreference
tion is made; eligible is employed;
(iii) Determining the method under (3) By reemployment in the agency
which the RPL registrant will be rated where the nonpreference eligible was
and ranked (paragraph (b), (c), or (d) of formerly employed when he or she is
being appointed from the Reemploy-
this section); and
ment Priority List under subpart B of
(iv) Informing each RPL registrant this part;
who applies under this method whether (4) By reinstatement in the agency
he or she was determined to be an RPL where the nonpreference eligible was
placement priority candidate and the formerly employed when he or she was
outcome of the selection process, if the last separated because of disability re-
candidate was referred for selection. tirement; or
(2) RPL registrants may not be re- (5) By reappointment of certain tem-
moved from the RPL for failure to porary employees as provided for in
apply for a vacancy under this para- part 316 of this chapter.
graph. Registration continues until it (b) Except as indicated in paragraph
expires or the registrant is removed (a) of this section, OPM must authorize
from the RPL under 330.209. any other agency noncompetitive ac-
tion (e.g., under an authority specified
330.214 Appeal rights. in part 315 of this chapter) to fill a re-
An RPL registrant who believes the stricted position with a nonpreference
eligible.
agency violated his or her reemploy-
ment rights under this subpart by em- 330.403 Positions brought into the
ploying another person who otherwise competitive service.
could not have been appointed properly An agency may convert the appoint-
may appeal to the Merit Systems Pro- ment of a nonpreference eligible whose
tection Board under the Boards regu- restricted position was brought into
lations in part 1200 of this chapter.
the competitive service under part 316

of this chapter, and who meets the re-
Subpart C [Reserved] quirements for conversion under part
211
330.404 5 CFR Ch. I (1116 Edition)
315 of this chapter, to career or career displaced preference eligibles in apply-

conditional appointment. ing for other Federal positions, includ-
ing positions with the U.S. Postal
330.404 Displacement of preference Service.
eligibles occupying restricted posi-
tions in contracting out situations. 330.407 Eligibility for the Inter-
An individual agency and OPM both agency Career Transition Assist-
have additional responsibilities when ance Plan.
the agency decides, in accordance with (a) A preference eligible who is sepa-
the Office of Management and Budget rated from a restricted position by re-
(OMB) Circular A76, to contract out duction in force under part 351 of this
the work of a preference eligible who chapter because of a contracting out
holds a restricted position. These addi- situation covered in 330.404 has inter-
tional responsibilities as described in agency selection priority under the
330.405 and 330.406 are applicable if a Interagency Career Transition Assist-
preference eligible holds a competitive ance Plan, which is authorized by sub-
service position (other than in the Gov- part G of this part.
ernment Printing Office) that is: (b) A preference eligible covered by
(a) A restricted position as des- this subpart is eligible for the Inter-
ignated in 5 U.S.C. 3310 and 330.401; agency Career Transition Assistance
and Plan for 2 years following separation
(b) In tenure group I or II, as defined by reduction in force from a restricted
in 351.501(b)(1) and (2) of this chapter. position.
330.405 Agency placement assistance. Subpart ERestrictions To Protect

An agency that separates a pref- Competitive Principles
erence eligible from a restricted posi-
tion by reduction in force under part 330.501 Purpose.
351 of this chapter because of a con- The restrictions in this subpart are
tracting out situation covered in designed to prevent circumvention of
330.404 must, consistent with 330.603, the open competitive examination sys-
advise the employee of the opportunity tem defined in Civil Service Rule 1.3 (5
to participate in available career tran- CFR 1.3). These restrictions limit an
sition programs. The agency is also re- appointees immediate movement to
sponsible for: another position after appointment
(a) Applying OMBs policy directives from a competitive certificate of eligi-
on the preference eligibles right of bles.
first refusal for positions that are con-
tracted out to the private sector; and 330.502 General restriction on move-
(b) Cooperating with State units as ment after competitive appoint-
designated or created under title I of ment.
the Workforce Investment Act of 1998 (a) An agency must wait at least 90
to retrain displaced preference eligibles days after an employees latest non-
for other continuing positions. temporary competitive appointment
before the agency may take the fol-
330.406 OPM placement assistance. lowing actions:
OPMs responsibilities include: (1) Promote an employee;
(a) Assisting agencies in operating (2) Transfer, reinstate, reassign, or
positive placement programs, such as detail an employee to a different posi-
the Career Transition Assistance Plan, tion; or
which is authorized by subpart F of (3) Transfer, reinstate, reassign, or
this part; detail an employee to a different geo-
(b) Providing interagency selection graphical area.
priority through the Interagency Ca- (b) Upon written request from an
reer Transition Assistance Plan, which agency, OPM may waive the restriction
is authorized by subpart G of this part; against movement to a different geo-
and graphical area when moving such an

(c) Encouraging cooperation between employee is consistent with open com-
local Federal activities to assist these petition principles.
212
330.503 Ensuring agency compliance Agency means an Executive agency as

with the principles of open competi- defined in 5 U.S.C. 105.
tion. CTAP eligible means an agency sur-
OPM will review appointments made plus or displaced employee who has a
from competitive examinations and current performance rating of record of
subsequent position changes to deter- at least fully successful (Level 3) or
mine if agencies are complying with equivalent. As used in this subpart,
open competition principles. The fact CTAP eligible and eligible are
that an agency waited 90 days to make synonymous.
the changes, as required under this CTAP selection priority candidate
subpart, is not an absolute protection. means a CTAP eligible who applied for
If OPM finds that an agency has not and was determined to be well-quali-
complied with these principles, either fied by the agency and whom the agen-
in an individual instance or on a pro- cy must select over any other appli-
gram-wide basis, OPM will order an cant for the vacancy, unless the action
agency to correct the situation. to be taken is listed as an exception
330.504 Exception to the general re- under 330.609.
striction. Displaced describes an agency em-
ployee in one of the following two cat-
The restrictions in this subpart do
egories:
not apply to a person who is eligible for
a competitive appointment from a cer- (1) A current career or career-condi-
tificate of eligibles under part 332 of tional (tenure group I or II) competi-
this chapter. tive service employee at grade GS15
(or equivalent) or below who:
(i) Received a reduction in force
Subpart FAgency Career Transi- (RIF) separation notice under part 351
tion Assistance Plan (CTAP) for of this chapter and has not declined an
Local Surplus and Displaced offer under part 351, subpart G, of this
Employees chapter of a position with the same
type of work schedule and a represent-
330.601 Purpose.
ative rate at least as high as that of
(a) An agencys Career Transition As- the position from which the employee
sistance Plan (CTAP) provides intra- will be separated; or
agency selection priority for the agen- (ii) Received a notice of proposed re-
cys eligible surplus and displaced em- moval under part 752 of this chapter for
ployees. This subpart sets forth min- declining a directed geographic reloca-
imum requirements for agency plans tion outside of the local commuting
and establishes requirements for CTAP area (e.g., a directed reassignment or
selection priority.
change in duty station).
(b) Consistent with these regulations
(2) A current excepted service em-
and at their discretion, an agency may
supplement these requirements to ex- ployee on an appointment without
pand career transition opportunities to time limit at grade level GS15 (or
its surplus and displaced workers. equivalent) or below who:
(c) With prior OPM approval, an (i) Is covered by a law providing both
agency may operate an alternate place- noncompetitive appointment eligi-
ment program that satisfies the basic bility to, and selection priority for,
requirements of this subpart as an ex- competitive service positions; and
ception to CTAP selection priority (ii) Received a RIF separation notice
under this subpart. This provision al- under part 351 of this chapter or a no-
lows agencies to adopt different place- tice of proposed removal under part 752
ment strategies that are effective for of this chapter for declining a directed
their programs while satisfying em- geographic relocation outside the local
ployee entitlements to selection pri- commuting area (e.g., a directed reas-
ority. signment or a change in duty station).
Surplus describes an agency employee

330.602 Definitions. in one of the following three cat-
For purposes of this subpart: egories:
213
330.603 5 CFR Ch. I (1116 Edition)
(1) A current career or career-condi- 330.603 Requirements for agency

tional (tenure group I or II) competi- CTAPs.
tive service employee at grade GS15 (a) Each agency must establish a
(or equivalent) or below who received a CTAP for its surplus and displaced em-
Certification of Expected Separation ployees. Each agency must send its
under part 351 of this chapter or other plan, and any modifications, to OPM,
official agency certification or notifi- Employee Services, after approval by
cation indicating that the employees an authorized agency official.
position is surplus (for example, a no- (b) Each agency must uniformly and
tice of position abolishment or a notice consistently apply its CTAP and these
of eligibility for discontinued service regulations to all surplus and displaced
retirement). employees.
(2) A current excepted service em- (c) In addition to a description of the
ployee on an appointment without agencys selection priority policies re-
time limit at grade GS15 (or equiva- quired by 330.604, a CTAP must de-
lent) or below who: scribe the agencys policies with regard
(i) Is covered by a law providing both to how it will provide career transition
noncompetitive appointment eligi- services to all its surplus and displaced
bility to, and selection priority for, agency employees, including excepted
competitive service positions; and service and Senior Executive Service
(ii) Received a Certification of Ex- employees. The plan must describe:
pected Separation under part 351 of (1) The types of career transition
this chapter or other official agency services the agency will provide;
certification or notification indicating (2) Policies on employees and former
that the employees position is surplus employees use of transition services
(for example, a notice of position abol- and facilities, including:
ishment or a notice of eligibility for (i) Excused absences for transition-
discontinued service retirement). related activities;
(3) A current excepted service em- (ii) Access to services or facilities
ployee on a Schedule A or B appoint- after separation;
ment without time limit at grade level (iii) Orientation sessions on career
GS15 (or equivalent) or below who is transition services and information as
in an agency offering CTAP selection described in 330.608(a) and (b), respec-
priority to its excepted service employ- tively;
ees and who: (iv) Retraining policies;
(i) Received a Certification of Ex- (v) Access to agency CTAP services
pected Separation under part 351 of and resources by all employees, includ-
this chapter or other official agency ing those with disabilities, those in
certification indicating that the em- field offices, and those in remote sites;
ployee is surplus (for example, a notice (vi) Access to other Federal, State,
of position abolishment, or notice of and local resources available to sup-
eligibility for discontinued service report career transition for employees
tirement); or with disabilities; and
(ii) Received a RIF notice of separa- (vii) Availability of employee assist-
tion under part 351 of this chapter or a ance programs and services.
notice of proposed removal under part (d) An agencys CTAP must also de-
752 of this chapter for declining a di- scribe the agencys policies and proce-
rected geographic relocation outside dures for its Reemployment Priority
the local commuting area (e.g., a di- List established under subpart B of this
rected reassignment or a change in part and the Interagency Career Tran-
duty station). sition Placement Plan established
Vacancy means a vacant competitive under subpart G of this part.
service position at grade GS15 (or
equivalent) or below to be filled for a 330.604 Requirements for agency
total of 121 days or more, including all CTAP selection priority.
extensions, regardless of whether the In addition to the overall require-

agency issues a specific vacancy an- ments of 330.603, an agencys CTAP
nouncement. must describe:
214
(a) How the agency will provide (1) Meets the basic eligibility re-
CTAP selection priority to surplus and quirements (including employment
displaced employees for vacancies in suitability requirements under part 731
the local commuting area before se- of this chapter and any medical quali-
lecting any other candidate from either fications requirements), qualification
within or outside the agency; standards (including minimum edu-
(b) Procedures for reviewing CTAP cational and experience requirements),
eligibles qualifications and resolving and any applicable selective factors;
qualification issues or disputes; (2) Is physically qualified, with or
(c) Decisions involving discretionary without reasonable accommodation, to
areas under 330.607 (such as whether perform the essential duties of the po-
excepted service employees will receive sition;
CTAP selection priority, priority of (3) Meets any special qualifying con-
surplus versus displaced employees, ditions of the position;
designation of agency components, and (4) Is able to satisfactorily perform
selection priority beyond the local the duties of the position upon entry;
commuting area); and and
(d) When and how the agency will in- (5) At agency discretion, either:
form its surplus and displaced employ- (i) Rates at or above specified level(s)
ees about CTAP eligibility criteria, as on all quality ranking factors; or
required by 330.608(b), how to apply (ii) Rates above minimally qualified
for agency vacancies, and how to rein the agencys rating and ranking
quest CTAP selection priority. process.
330.605 Agency responsibilities for
deciding who is well-qualified. 330.607 Applying CTAP selection pri-
ority.
(a) An agency must define what con-
(a) An agency must not place any
stitutes a well-qualified candidate for
other candidate from within or outside
its specific vacancies, consistent with
the agency into a vacancy if there is an
this subpart, and uniformly apply that
available CTAP selection priority can-
definition to all CTAP eligibles being
didate, unless the personnel action to
considered for the vacancy.
be effected is an exception under
(b) An agency must conduct an inde-
330.609.
pendent second review and document
the specific job-related reasons when- (b) In accordance with the conditions
ever a CTAP eligible is determined to of part 300, subpart E, of this chapter,
be not well-qualified under the agen- an agency may not procure temporary
cys definition. The agency must give help services under that subpart until a
the CTAP eligible the written results determination is made that no CTAP
of this review as required by 330.608(e). eligible is available.
(c) CTAP selection priority applies to
330.606 Minimum criteria for agency a vacancy that:
definition of well-qualified. (1) Is at a grade or pay level with a
(a) At a minimum, the agency must representative rate no higher than the
define well-qualified as having representative rate of the grade or pay
knowledge, skills, abilities, and/or level of the CTAP eligibles permanent
competencies clearly exceeding the position of record;
minimum qualification requirements (2) Has no greater promotion poten-
for the vacancy. The agency definition tial than the CTAP eligibles perma-
may or may not equate to the highly nent position of record;
or best qualified assessment criteria (3) Is in the same local commuting
established for the vacancy; however, area as the CTAP eligibles permanent
the agency definition of well-quali- position of record;
fied must satisfy the criteria in para- (4) Is filled during the CTAP eligi-
graph (b) of this section. bles eligibility period; and, if applica-
(b) Under an agencys definition of ble,
well-qualified, the agency must be (5) Is filled under the same excepted
able to determine whether a CTAP eli- appointing authority as the CTAP eli-
gible: gibles permanent position of record if
215
330.608 5 CFR Ch. I (1116 Edition)
the CTAP eligible is an excepted serv- agency must follow the requirements
ice employee and the agency CTAP of subparts B and G of this part.
provides selection priority in the ex-
cepted service. 330.608 Other agency CTAP respon-
(d) An agency may take actions sibilities.
under 335.102 of this chapter to place a (a) An agency must make a career
permanent competitive service em- transition orientation session available
ployee into a vacancy if there are no to all agency surplus and displaced em-
CTAP eligible employees in the local ployees with information on selection
commuting area or if no CTAP eligi- priority under this subpart and sub-
bles apply for the vacancy. parts B and G. Such orientation ses-
(e) An agency component may place a sions may be in person or web-based
component employee within the local through an agency automated training
commuting area in the vacancy after system or intranet.
the component applies CTAP selection (b) An agency must give each agency
priority to its employees. CTAP eligible written information on
(f) If there are two or more CTAP se- selection priority under its plan, ex-
lection priority candidates for a va- plaining how to locate and apply for
cancy, the agency may place any of agency vacancies and request selection
them. An agency may decide the spe- priority. The agency may meet this re-
cific order of selection among CTAP se- quirement by providing a copy of its
lection priority candidates. For exam- CTAP established under 330.603.
ple, an agency may: (c) An agency must take reasonable
(1) Provide a displaced candidate steps to ensure that agency CTAP eli-
higher priority than a surplus can- gibles have access to information on
didate; or all vacancies, including how CTAP eli-
(2) Provide an internal component gibles can apply, what proof of eligi-
candidate higher priority than another bility is required, and the agency defi-
components candidate. nition of well-qualified for the va-
(g) After an agency makes the vacancy.
cancy available to its CTAP eligibles (d) If the agency can document that
and meets its obligation to any CTAP there are no CTAP eligibles in a local
selection priority candidates, the agen- commuting area, the agency need not
cy may place into the vacancy any post the vacancy for CTAP eligibles.
other permanent competitive service (e) An agency must provide a CTAP
candidate from within its workforce, eligible who applied for a specific va-
under appropriate staffing procedures. cancy written notice of the final status
(h) An agency may provide CTAP se- of his or her application, including
lection priority to eligible employees whether the eligible was determined to
from another commuting area after be well-qualified. The agency notice
fulfilling its obligation to CTAP selec- must include the results of the inde-
tion priority candidates in the local pendent, second review under
commuting area. 330.605(b), if applicable; whether an-
(i) An agency may deny a CTAP eligi- other CTAP selection priority can-
ble future selection priority if the eli- didate was hired; whether the position
gible: was filled under an exception listed in
(1) Declines an offer of a permanent 330.609; and whether the recruitment
appointment at any grade or pay level was cancelled.
in the competitive or excepted service;
or 330.609 Exceptions to CTAP selection
(2) Fails to respond within a reason- priority.
able period of time, as defined by the An agency may take the following
agency, to an offer of a permanent ap- personnel actions as exceptions to
pointment at any grade or pay level in 330.607:
the competitive or excepted service. (a) Reemploy a former agency em-
(j) Before appointing an individual ployee with regulatory or statutory re-

from outside the agencys permanent employment rights, including the re-
competitive service workforce, the employment of an injured worker who
216
either has been restored to earning ca- (m) Effect a position change of a sur-
pacity by the Office of Workers Com- plus or displaced employee in the local
pensation Programs, Department of commuting area;
Labor, or has received a notice that his (n) Effect a position change of an em-
or her compensation benefits will cease ployee under 5 U.S.C. 8337 or 8451 to
because of full recovery from the disallow continued employment of an em-
abling injury or illness; ployee who is unable to provide useful
(b) Reassign or demote an employee and efficient service in his or her cur-
under part 432 or 752 of this chapter; rent position because of a medical con-
(c) Appoint an individual for a period dition;
limited to 120 or fewer days, including (o) Effect a position change of an em-
all extensions; ployee to a position that constitutes a
reasonable offer as defined in 5 U.S.C.
(d) Reassign agency employees be-
8336(d) and 8414(b);
tween or among positions in the local
(p) Effect a position change of an em-
commuting area (sometimes called job
ployee resulting from a reclassification
swaps) when there is no change in
action (such as accretion of duties or
grade or promotion potential and no
an action resulting from application of
actual vacancy results; new position classification standards);
(e) Convert an employee currently (q) Promote an employee to the next
serving under an appointment pro- higher grade or pay level of a des-
viding noncompetitive conversion eli- ignated career ladder position;
gibility to a competitive service ap- (r) Recall a seasonal or intermittent
pointment, including from: employee from nonpay status;
(1) A Veterans Recruitment Appoint- (s) Effect a position change of an in-
ment under part 307 of this chapter; jured or disabled employee to a posi-
(2) An appointment under 5 U.S.C. tion in which he or she can be reason-
3112 and part 316 of this chapter of a ably accommodated;
veteran with a compensable service- (t) Effect a personnel action pursuant
connected disability of 30 percent or to the settlement of a formal com-
more; and plaint, grievance, appeal, or other liti-
(3) Make an excepted service appoint- gation;
ment under part 213 of this chapter; (u) Reassign or demote an employee
(f) Effect a personnel action under, or under 315.907 of this chapter for fail-
specifically in lieu of, part 351 of this ure to complete a supervisory or mana-
chapter; gerial probationary period;
(g) Effect a position change of an em- (v) Retain an individual whose posi-
ployee into a different position as a re- tion is brought into the competitive
sult of a formal reorganization, as long service under part 316 of this chapter
as the former position ceases to exist and convert that individual, when ap-
and no actual vacancy results; plicable, under part 315 of this chapter;
(w) Retain an employee covered by
(h) Assign or exchange an employee
an OPM-approved variation under Civil
under a statutory program, such as
Service Rule 5.1 (5 CFR 5.1);
subchapter VI of chapter 33 of title 5,
(x) Reemploy a former agency em-
United States Code (also called the
ployee who retired under a formal trial
Intergovernmental Personnel Act), or
retirement and reemployment program
the Information Technology Exchange and who requests reemployment under
Program under chapter 37 of title 5, the programs provisions and applica-
United States Code; ble time limits;
(i) Appoint an individual under an ex- (y) Extend a time-limited promotion
cepted service appointing authority; or appointment up to the maximum pe-
(j) Effect a position change of an em- riod allowed (including any OPM-ap-
ployee within the excepted service; proved extensions beyond the regu-
(k) Detail an employee within the latory limit on the time-limited pro-
agency; motion or appointment), if the original
(l) Promote an employee for a period action was made subject to CTAP se-
limited to 120 or fewer days, including lection priority and the original an-
all extensions; nouncement or notice stated that the
217
330.610 5 CFR Ch. I (1116 Edition)
promotion or appointment could be ex- without time limit in any agency at

tended without further announcement; any grade or pay level.
(z) Transfer an employee between
agencies under appropriate authority 330.611 Establishing CTAP selection
during an interagency reorganization, priority.
interagency transfer of function, or (a) CTAP selection priority for a spe-
interagency mass transfer; cific agency vacancy begins when:
(aa) Appoint a member of the Senior (1) The CTAP eligible submits all re-
Executive Service into the competitive quired application materials, including
service under 5 U.S.C. 3594; proof of eligibility, within agency-es-
(bb) Transfer an employee volun- tablished timeframes; and,
tarily from one agency to another (2) The agency determines the eligi-
under a Memorandum of Understanding ble is well-qualified for the vacancy.
or similar agreement under appropriate (b) An agency may allow CTAP eligi-
authority resulting from an inter- ble employees to become CTAP selec-
agency reorganization, interagency tion priority candidates for positions
transfer of function, or interagency in other local commuting areas only if
mass transfer, when both the agencies there are no CTAP selection priority
and the affected employee agree to the candidates within the local commuting
transfer; area of the vacancy.
(cc) Reassign an employee whose po- (c) An agency may deny future CTAP
sition description or other written mo- selection priority for agency positions
bility agreement provides for reassign- if the CTAP eligible declines an offer of
ment outside the commuting area as permanent appointment at any grade
part of a planned agency rotational level (whether it is a competitive or ex-
program; or cepted appointment).
(dd) Transfer or a position change of
an employee under part 412 of this 330.612 Proof of eligibility.
chapter. (a) The CTAP eligible must submit a
(ee) Convert an employees time-lim-
copy of one of the documents listed
ited appointment in the competitive or
under the definition of displaced or sur-
excepted service to a permanent ap-
plus in 330.602 to establish selection
pointment in the competitive service if
priority under 330.611.
the employee accepted the time-lim-
(b) The CTAP eligible may also sub-
ited appointment while a CTAP eligi-
mit a copy of a RIF notice with an
ble.
offer of another position, accompanied
[75 FR 67593, Nov. 3, 2010, as amended at 77 by the signed declination of the offer.
FR 28215, May 11, 2012] The RIF notice must state that dec-
lination of the offer will result in sepa-
330.610 CTAP eligibility period. ration under RIF procedures.
(a) CTAP eligibility begins on the
date the employee meets the definition 330.613 OPMs role in CTAP.
of surplus or displaced in 330.602. OPM has oversight of CTAP and may
(b) CTAP eligibility ends on the date conduct reviews of agency compliance
the employee: and require corrective action at any
(1) Separates from the agency either time.
voluntarily or involuntarily;
(2) Receives a notice rescinding, can-
celing, or modifying the notice which
Subpart GInteragency Career
established CTAP eligibility so that Transition Assistance Plan
the employee no longer meets the defi- (ICTAP) for Displaced Employ-
nition of surplus or displaced; ees
(3) Is placed in another position with-
in the agency at any grade or pay level, 330.701 Purpose.
either permanent or time-limited, be- The Interagency Career Transition
fore the agency separates the em- Assistance Program (ICTAP) provides
ployee; or eligible displaced Federal employees

(4) Is appointed to a career, career- with interagency selection priority for
conditional, or excepted appointment vacancies in agencies that are filling
218
positions from outside their respective commuting area (e.g., a directed reas-
permanent competitive service signment or a change in duty station).
workforces. The ICTAP selection pri- (3) A former career or career-condi-
ority does not apply in the ICTAP eli- tional employee of any agency who was
gibles current or former agency and it separated because of a compensable
does not prohibit movement of perma- work-related injury or illness as pro-
nent competitive service employees vided under 5 U.S.C. chapter 81, sub-
within an agency, as permitted by subchapter I, whose compensation was ter-
part F of this part. This subpart estab- minated and who has received certifi-
lishes requirements for ICTAP selec- cation from the former employing
tion priority. agency that it is unable to place the
employee as required by part 353 of this
330.702 Definitions. chapter.
In this subpart: (4) A former career or career-condi-
Agency means an Executive agency as tional (tenure group I or II) competi-
defined in 5 U.S.C. 105. tive service employee of any agency
who retired with a disability annuity
Displaced describes an individual in
under 5 U.S.C. 8337 or 8451 and who has
one of the following categories:
received notification from OPM that
(1) A current career or career-condi-
the disability annuity has been or will
tional (tenure group I or II) competi-
be terminated.
tive service employee of any agency at
(5) A former Military Reserve Tech-
grade GS15 (or equivalent) or below
nician or National Guard Technician
whose current performance rating of
receiving a special disability retire-
record is at least fully successful
ment annuity under 5 U.S.C. 8337(h) or
(Level 3) or equivalent and who:
8456 and who has certification of such
(i) Received a reduction in force annuity from the military department
(RIF) separation notice under part 351 or National Guard Bureau.
of this chapter and has not declined an (6) A current or former excepted serv-
offer under part 351, subpart G, of this ice employee on an appointment with-
chapter of a position with the same out time limit at grade GS15 (or
type of work schedule and a represent- equivalent) or below whose current or
ative rate at least as high as that of last performance rating of record is or
the position from which the employee was at least fully successful (Level 3)
will be separated; or or equivalent and who:
(ii) Received a notice of proposed re- (i) Has been provided by law with
moval under part 752 of this chapter for both noncompetitive appointment eli-
declining a directed geographic reloca- gibility and selection priority for com-
tion outside the local commuting area petitive service positions; and
(e.g., a directed reassignment or a (ii) Has received a RIF separation no-
change in duty station). tice under part 351 of this chapter or
(2) A former career or career-condi- notice of proposed removal under part
tional (tenure group I or II) competi- 752 of this chapter for declining a di-
tive service employee of any agency at rected geographic relocation outside
grade GS15 (or equivalent) or below the local commuting area (e.g., a di-
whose last performance rating of rected reassignment or a change in
record was at least fully successful duty station) or has been separated by
(Level 3) or equivalent who was either: RIF procedures or removed for declin-
(i) Separated by RIF under part 351 of ing a geographic relocation outside the
this chapter and did not decline an local commuting area.
offer under part 351, subpart G, of this ICTAP eligible means an individual
chapter of a position with the same who meets the definition of displaced.
type of work schedule and a represent- As used in this subpart, ICTAP eligi-
ative rate at least as high as that of ble and eligible are synonymous.
the position from which the employee ICTAP selection priority candidate
was separated; or means an ICTAP eligible who applied
(ii) Removed under part 752 of this for a vacancy, was determined by the
chapter for declining a directed geo- agency to be well-qualified for that va-
graphic relocation outside the local cancy, and who the agency must select
219
330.703 5 CFR Ch. I (1116 Edition)
over any other candidate from outside (3) Meets any special qualifying con-
the agencys current competitive serv- ditions of the position;
ice workforce for the vacancy, unless (4) Is able to satisfactorily perform
the action to be taken is listed as an the duties of the position upon entry;
exception under 330.707. and
Vacancy means a vacant competitive (5) At agency discretion, either:
service position at grade GS15 (or (i) Rates at or above specified level(s)
equivalent) or below to be filled for 121 on all quality ranking factors; or
days or more, including extensions. (ii) Rates above minimally qualified
in the agencys rating and ranking
330.703 Agency responsibilities for process.
deciding who is well-qualified.
(a) Agencies must define well-quali- 330.705 Applying ICTAP selection
fied for their specific vacancies, con- priority.
sistent with this subpart, and uni- (a) An agency must not appoint any
formly apply that definition to all candidate from outside its permanent
ICTAP eligibles being considered for competitive service workforce if there
the vacancy. is an ICTAP selection priority can-
(b) Agencies must conduct an inde- didate available for the vacancy, unless
pendent second review and document the personnel action to be effected is
the specific job-related reasons when- an exception under 330.707.
ever an ICTAP eligible is determined (b) ICTAP selection priority applies
to be not well-qualified for the vacancy to a vacancy that:
under the agencys definition. An agen- (1) Is at a grade or pay level with a
cy must give the ICTAP eligible the representative rate no higher than the
written results of this review as re- representative rate of the grade or pay
quired by 330.706(d). level of the ICTAP eligibles current or
last permanent position of record;
330.704 Minimum criteria for agency (2) Has no greater promotion poten-
definition of well-qualified. tial than the ICTAP eligibles current
(a) At a minimum, agencies must de- or last permanent position of record;
fine well-qualified as having knowl- (3) Is in the same local commuting
edge, skills, abilities, and/or com- area as the ICTAP eligibles current or
petencies clearly exceeding the min- last permanent position of record; and
imum qualification requirements for (4) Is filled during the ICTAP eligi-
the vacancy. The agency definition bles eligibility period.
may or may not equate to the highly (c) An agency may appoint any
or best qualified assessment criteria ICTAP selection priority candidate for
established for the vacancy; however, a vacancy.
the agency definition of well-quali- (d)(1) After an agency announces the
fied must satisfy the criteria in para- vacancy and meets its obligation to
graph (b) of this section. any ICTAP selection priority can-
(b) Under an agencys definition of didates, the agency may appoint any
well-qualified, the agency must be other candidate from outside its cur-
able to determine whether an ICTAP rent permanent competitive service
eligible: workforce, under appropriate staffing
(1) Meets the basic eligibility re- procedures.
quirements (including employment (2) An agency may make additional
suitability requirements under part 731 selections or reissue selection certifi-
of this chapter and any medical quali- cates in accordance with its merit pro-
fication requirements), qualification motion program without readvertising
standards (including minimum edu- for ICTAP eligibles only if the addi-
cational and experience requirements), tional selections are made from the ap-
and any applicable selective factors; plicant pool established by the original
(2) Is physically qualified, with or vacancy announcement, including re-
without reasonable accommodation, to advertisements for the same vacancy,

perform the essential duties of the po- under which ICTAP eligibles had an op-
sition; portunity to apply.
220
(e) An agency may deny an ICTAP el- 330.707 Exceptions to ICTAP selec-
igible future selection priority for va- tion priority.
cancies in that agency if the ICTAP el- An agency may take the following
igible: personnel actions as exceptions to
(1) Declines an offer of a permanent 330.705:
appointment at any grade or pay level (a) Place a current or reinstate a
in the competitive or excepted service; former agency employee with RPL se-
or lection priority under subpart B of this
(2) Fails to respond within a reason- part;
able period of time, as defined by the (b) Effect a position change of a cur-
agency, to an offer or official inquiry rent permanent competitive service
of availability for a permanent ap- agency employee;
pointment at any grade or pay level in (c) Appoint a 10-point veteran pref-
erence eligible through an appropriate
the competitive or excepted service.
appointing authority;
(f) An agency may deny an ICTAP el- (d) Reemploy a former agency em-
igible future selection priority for a po- ployee with regulatory or statutory re-
sition previously obtained through employment rights, including the re-
ICTAP if the eligible was terminated or employment of an injured worker who
removed from that position under part either has been restored to earning ca-
432 or 752 of this chapter. pacity by the Office of Workers Com-
pensation Programs, Department of
330.706 Other agency ICTAP respon- Labor, or has received a notice that his
sibilities. or her compensation benefits will cease
(a) Before appointing any other can- because of recovery from disabling in-
didate from outside the agencys perjury or illness;
manent competitive service workforce, (e) Appoint an individual for a period
the agency must first fulfill its obliga- limited to 120 or fewer days, including
tion to any employees entitled to se- all extensions;
lection priority under subparts B and F (f) Effect a personnel action under, or
of this part. specifically in lieu of, part 351 of this
(b) In accordance with the conditions chapter;
(g) Appoint an individual under an
of part 300, subpart E, of this chapter,
excepted service appointing authority;
an agency may not procure temporary
(h) Convert an employee serving
help services under that subpart until a under an appointment that provides
determination is made that no ICTAP noncompetitive conversion eligibility
eligible is available. to a competitive service appointment,
(c) An agency must announce all va- including from:
cancies it intends to fill from outside (1) A Veterans Recruitment Appoint-
its permanent competitive service ment under part 307 of this chapter;
workforce. Vacancy announcements (2) An appointment under 5 U.S.C.
must meet the requirements of subpart 3112 and part 316 of this chapter of a
A of this part. veteran with a compensable service-
(d) An agency must provide an connected disability of 30 percent or
ICTAP eligible who applied for a spe- more; and
cific vacancy written notice of the (3) An excepted service appointment
final status of his or her application, under part 213 of this chapter;
including whether the eligible was de- (i) Transfer an employee between
termined to be well-qualified. The agencies under appropriate authority
agency notice must include the results during an interagency reorganization,
interagency transfer of function, or
of the independent second review under
interagency mass transfer;
330.703(b), if applicable; whether an-
(j) Reemploy a former agency em-
other ICTAP selection priority can- ployee who retired under a formal trial
didate was hired; whether the position retirement and reemployment program
was filled under an exception listed in
and who requests reemployment under

330.707; and whether the recruitment the programs provisions and applica-
was cancelled. ble time limits;
221
330.708 5 CFR Ch. I (1116 Edition)
(k) Effect a personnel action pursu- (v) Transfer or a position change of

ant to the settlement of a formal com- an employee under part 412 of this
plaint, grievance, appeal, or other liti- chapter.
gation;
(l) Extend a time-limited appoint-
FR 28215, May 11, 2012]
ment up to the maximum period al-
lowed (including any OPM-approved ex- 330.708 ICTAP eligibility period.
tension past the regulatory limit on
the time-limited appointment), if the (a) ICTAP eligibility begins on the
original action was made subject to date the employee or former employee
ICTAP selection priority and the origi- meets the definition of displaced in
nal vacancy announcement stated that 330.702.
the appointment could be extended (b) ICTAP eligibility ends 1 year from
without further announcement; the date of:
(m) Reappoint a former agency em- (1) Separation by RIF under part 351
ployee into a hard-to-fill position re- of this chapter;
quiring unique skills and experience to (2) Removal by the agency under part
conduct a formal skills-based agency 752 of this chapter for declining a di-
training program; rected geographic relocation outside
(n) Retain an individual whose posi- the local commuting area (e.g., a di-
tion is brought into the competitive rected reassignment or a change in
service under part 316 of this chapter duty station);
and convert that individual, when ap- (3) Agency certification that it can-
plicable, under part 315 of this chapter; not place the employee under part 353
(o) Retain an employee covered by an of this chapter; or
OPM-approved variation under Civil (4) OPM notification that an employ-
Service Rule 5.1 (5 CFR 5.1); ees disability annuity has been, or will
(p) Appoint an appointee of the Sen- be, terminated.
ior Executive Service into the competi- (c) ICTAP eligibility ends 2 years
tive service under 5 U.S.C. 3594; after RIF separation if eligible under
(q) Assign or exchange an employee
subpart D of this part.
under a statutory program, such as
(d) ICTAP eligibility also ends on the
subchapter VI of chapter 33 of title 5,
date the eligible:
United States Code (also called the
Intergovernmental Personnel Act), or (1) Receives a notice rescinding, can-
the Information Technology Exchange celing, or modifying the notice which
Program under chapter 37 of title 5, established ICTAP eligibility so that
United States Code; the employee no longer meets the defi-
(r) Detail an employee to another nition of displaced in 330.702;
agency; (2) Separates from the agency for any
(s) Transfer employees under an reason before the RIF or removal effec-
OPM-approved interagency job swap tive date; or
plan designed to facilitate the ex- (3) Is appointed to a career, career-
change of employees between agencies conditional, or excepted appointment
to avoid or minimize involuntary sepa- without time limit in any agency at
rations; any grade or pay level.
(t) Transfer or reinstate an ICTAP el- (e) OPM may extend the eligibility
igible who meets the agencys defini- period when an ICTAP eligible does not
tion of well-qualified; receive a full 1 year (or 2 years under
(u) Transfer an employee voluntarily subpart D of this part) of eligibility,
from one agency to another under a for example, because of administrative
Memorandum of Understanding or or procedural error.
similar agreement under appropriate (f) ICTAP eligibility for a former
authority resulting from an inter- Military Reserve Technician or Na-
agency reorganization, interagency tional Guard Technician described in
transfer of function, or interagency re- 330.702 ends when the Technician no
alignment, when both the agencies and longer receives the special disability
the affected employee agree to the retirement annuity under 5 U.S.C.
transfer; or 8337(h) or 8456.
222
330.709 Establishing ICTAP selection appointment. OPM will cancel the ap-
priority. plication or eligibility of an applicant
ICTAP selection priority for a spe- or eligible who violates this section,
cific vacancy begins when: and will impose such other penalty as
(a) The ICTAP eligible submits all re- it considers appropriate.
quired application materials, including
proof of eligibility, within agency-es- Subparts KL [Reserved]
tablished timeframes; and
(b) The agency determines the eligi- PART 332RECRUITMENT AND SE-
ble is well-qualified for the vacancy. LECTION THROUGH COMPETITIVE
330.710 Proof of eligibility. EXAMINATION
(a) The ICTAP eligible must submit a Subpart AGeneral Provisions
copy of one of the documents listed
under paragraphs (1) or (3) through (6) Sec.
of the definition of displaced in 330.702, 332.101 General policy of competition.
as applicable, to establish selection 332.102 Definitions.
priority under 330.709. To establish se-
Subpart B [Reserved]
lection priority under the paragraph (2)
of the definition of displaced in 330.702, Subpart CPeriod of Competition and
the ICTAP eligible must submit docu- Eligibility
mentation of the separation or re-
moval, as applicable, for example, the GENERAL
Notification of Personnel Action, SF 332.301 Termination of eligibility.
50.
(b) The ICTAP eligible may also sub- ACCEPTANCE OF APPLICATIONS AFTER CLOSING
mit a copy of the RIF notice with an DATE OF EXAMINATIONS
offer of another position accompanied 332.311 Quarterly examinations.
by the signed declination of that offer. 332.312 Applicants in military or overseas
The RIF notice must state that dec- service.
lination of the offer will result in sepa- 332.313 Preference eligibles separated from
ration under RIF procedures. competitive positions.
332.314 [Reserved]
330.711 OPMs role in ICTAP. RESTORATION OF ELIGIBILITY
OPM has oversight of ICTAP and 332.321 Preference eligibles who resigned
may conduct reviews of agency compli- from competitive positions.
ance and require corrective action at 332.322 Persons who lost eligibility because
any time. of military service.
332.323 Employees separated during proba-
Subparts HI [Reserved] tion.
Subpart DConsideration for Appointment

Subpart JProhibited Practices
332.401 Order on registers.
330.1001 Withdrawal from competi- 332.402 Referring candidates for appoint-
tion. ment.
332.403 Selective certification.
An applicant for competitive exam- 332.404 Order of selection from certificates.
ination, an eligible on a register, and 332.405 Three considerations for appoint-
an officer or employee in the executive ment.
branch of the Government may not 332.406 Objections to eligibles.
persuade, induce, or coerce, or attempt 332.407 Restriction of consideration to one
to persuade, induce, or coerce, directly sex.
or indirectly, a prospective applicant AUTHORITY: 5 U.S.C. 1103, 1104, 1302, 2108,
to withhold filing application, or an ap- 3301, 3302, 3304, 3312, 3317, 3318, 3319; E.O.
plicant or eligible to withdraw from 10577; 3 CFR, 19541958 Comp., p. 218;
competition or eligibility, for a posi- SOURCE: 33 FR 12426, Sept. 4, 1968, unless
otherwise noted.
tion in the competitive service, for the

purpose of improving or injuring the SOURCE: 33 FR 12426, Sept. 4, 1968, unless
prospects of an applicant or eligible for otherwise noted.
223
332.101 5 CFR Ch. I (1116 Edition)
Subpart AGeneral Provisions ACCEPTANCE OF APPLICATIONS AFTER

CLOSING DATE OF EXAMINATIONS
332.101 General policy of competi-
tion. 332.311 Quarterly examinations.
(a) Examinations for entrance into (a) A 10-point preference eligible is
the competitive service shall be open entitled to file an application at any
competitive, except that OPM may au- time for an examination for any posi-
thorize noncompetitive examinations tion for which OPM maintains a reg-
when sufficient competent persons do ister, for which a register is about to
not compete. be established, or for which a non-
(b) An examination for promotion, temporary appointment was made in
demotion, reassignment, transfer, or the preceding three years. For the pur-
reinstatement may be a noncompeti- poses of this paragraph OPM shall hold
tive examination. an examination not later than the
quarterly period succeeding that in
332.102 Definitions. which the application is filed.
In this part: (b) When there is no appropriate ex-
isting register, OPM may establish spe-
Active military duty has the meaning
cial registers containing the names of
given that term in 5 CFR 211.102(f).
eligibles from the quarterly examina-
Certificate means a list of eligibles tions authorized by paragraph (a) of
from which an appointing officer se- this section, together with the names
lects one or more applicants for ap- of eligibles described in 332.322, and
pointment. use these registers for certification to
Objection means an agencys request fill appropriate vacancies.
to remove a candidate from consider-
ation on a particular certificate. [35 FR 414, Jan. 13, 1970, as amended at 41 FR
Pass over request means an objection 22549, June 4, 1976]
filed against a preference eligible that
332.312 Applicants in military or
results in the selection of a non-pref- overseas service.
erence eligible.
Subject to the time limits and other
[74 FR 30461, June 26, 2009] conditions published by OPM in its op-
erating manuals, the following persons
Subpart B [Reserved] are entitled to file applications for
open competitive examinations after
Subpart CPeriod of Competition the closing date for receipt of applica-
and Eligibility tions when there is an existing register
or a register about to be established:
GENERAL (a) A person who could not file an ap-
plication during the filing period, or
332.301 Termination of eligibility. appear for an assembled examination,
because of military service, or hos-
(a) Except as provided in paragraph
pitalization continuing for 1 year or
(b) of this section, a persons eligibility
less following discharge from military
on a register is terminated when:
service;
(1) He accepts a career or career-con-
(b) An employee of the Federal Gov-
ditional appointment from the reg-
ernment who, as a member of a reserve
ister; or
unit of the military service, could not
(2) OPM terminates the eligibility of file an application during the filing pe-
all persons on the register. riod, or appear for an assembled exam-
(b) OPM may determine that in par- ination, because of active duty beyond
ticular types of cases eligibility may 15 days with the military service even
not be terminated in less than 1 year. though the duty is designated for
OPM shall publish the conditions under training purposes; and
which eligibility may not be termi- (c) A United States citizen who could
nated in less than 1 year.
not file an application during the filing

[33 FR 12426, Sept. 4, 1968, as amended at 66 period, or appear for an assembled ex-
FR 66710, Dec. 27, 2001] amination, because of overseas service
224
with a Federal agency or with an inter- (2) He is honorably separated from

national organization in which the active military duty.
United States Government partici- (3) He applies for restoration of eligi-
pates. bility within 90 days after discharge
from active military duty or from hos-
FR 66710, Dec. 27, 2001]
pitalization continuing for 1 year or
less following separation from active
332.313 Preference eligibles sepa- military duty.
rated from competitive positions. (4) He is still qualified to perform the
duties of the position for which the
The following persons are entitled to register is used.
have their names entered on an appro- (b) When a person is entitled to have
priate existing register in the order his name restored to a register under
prescribed by 332.401 if they were last paragraph (a) of this section, OPM
employed under career or career-condi- shall enter his name at the top of the
tional appointments: appropriate group on the register if an-
(a) A preference eligible who is de- other eligible standing lower on the
clared eligible therefor after appeal register on which his name formerly
from furlough or discharge; and appeared was given a career or career-
(b) A preference eligible who has been conditional appointment from that
furloughed or separated without delin- register. For professional and scientific
quency or misconduct and who applies positions in GS9 and above and in
within 90 days after furlough or separa- comparable pay levels under other pay-
tion. fixing authorities, all eligibles are in
one group. For all other positions, pref-
332.314 [Reserved] erence eligibles with a compensable
service-connected disability of 10 per-
RESTORATION OF ELIGIBILITY
cent or more are in one group and all
332.321 Preference eligibles who re- other eligibles in another.
signed from competitive positions. (c) When there is no appropriate ex-
isting register, OPM may establish spe-
A qualified preference eligible who cial registers containing the names of
resigned without delinquency or mis- persons entitled to priority of certifi-
conduct from career or career-condi- cation under paragraph (b) of this sec-
tional employment is entitled to have tion, together with the names of eligi-
his name reentered on each register on bles described in 332.311, and use these
which his name formerly appeared (or registers for certification to fill appro-
on a successor register) if he applies priate vacancies.
within 90 days after separation.
332.322 Persons who lost eligibility FR 414, Jan. 13, 1970]
because of military service.
332.323 Employees separated during
(a) A person who lost a period of eli- probation.
gibility on a register because he has
served on active military duty since An employee who is separated (volun-
June 30, 1950, is entitled to have his tarily or involuntarily) without delin-
name restored to that register or a suc- quency or misconduct during his proba-
cessor register when he meets the fol- tionary period is entitled to have his
lowing conditions: name restored to the register of eligi-
bles from which he was appointed, if he
(1) He has not served more than four
applies for restoration while the reg-
years following the date of his entrance
ister is still in use.
on active military duty, exclusive of
any additional service imposed pursu-
ant to law. The date of entrance on Subpart DConsideration for
duty means the first date between June Appointment
30, 1950, and July 1, 1971, on which he
332.401 Order on registers.
began a new period of active military

duty, whether it was by original entry, Subject to apportionment, residence,
reentry or extension. and other requirements of law and this
225
332.402 5 CFR Ch. I (1116 Edition)
chapter, OPM shall enter the names of (a) The first vacancy from the high-
eligibles on the appropriate register in est three eligibles on the certificate
accordance with their numerical rat- who are available for appointment; and
ings, except that the names of: (b) The second and each succeding va-
(a) Preference eligibles shall be en- cancy from the highest three eligibles
tered in accordance with their aug- on the certificate who are unselected
mented ratings and ahead of others and available for appointment.
having the same rating; and
(b) Preference eligibles who have a 332.405 Three considerations for ap-
compensable service-connected dis- pointment.
ability of 10 percent or more shall be An appointing officer is not required
entered at the top of the register in the to consider an eligible who has been
order of their ratings unless the reg- considered by him for three separate
ister is for professional or scientific po- appointments from the same or dif-
sitions in GS9 and above and in com- ferent certificates for the same posi-
parable pay levels under other pay-fix- tion.
ing authorities.
332.406 Objections to eligibles.
332.402 Referring candidates for ap-
pointment. (a) Delegated authority. Except as
specified in paragraphs (a)(1) and (a)(2)
OPM or a Delegated Examining Unit of this section, OPM has delegated to
(DEU) will refer candidates for consid- agencies the authority to adjudicate
eration by simultaneously listing a objections to eligibles, including pass
candidate on all certificates for which over requests.
the candidate is interested, eligible, (1) OPM retains exclusive authority
and within reach, except that, when it to approve the sufficiency of an agen-
is deemed in the interest of good ad- cys request to pass over preference eli-
ministration and candidates have been gibles who are thirty percent (30%) or
so notified, OPM or a DEU may choose more compensably disabled. Such per-
to refer candidates for only one va- sons have the right, in accordance with
cancy at a time. Selecting officials will 5 U.S.C. 3318, to respond to the pass
receive sufficient names, when avail- over request before OPM makes a final
able, to allow them to consider at least decision.
3 candidates for each vacancy. (2) OPM also retains the exclusive au-
[67 FR 7056, Feb. 15, 2002] thority to approve the sufficiency of an
agencys reasons to medically dis-
332.403 Selective certification. qualify or medically pass over a pref-
When there is no register appropriate erence eligible or disabled veteran in
as a whole for the certification of eligi- certain circumstances, in accordance
bles for a particular position, OPM with part 339 of this chapter.
may prepare a certificate from the (3) An agency must refer any objec-
most nearly appropriate existing reg- tion (including a pass over request)
ister by the selective certification of that is based on material, intentional
eligibles qualified for the particular po- false statement or deception or fraud
sition in the order of their ranking on in examination or appointment to OPM
the register. Special overseas selection for a suitability action where war-
factors may also be used as a basis for ranted, under part 731 of this chapter.
selective certification from a register (b) Standard for objections. An agency
used for filling overseas positions. is not required to consider an indi-
When appropriate, OPM may rerate the vidual for a position when an objection
eligibles on the register on the basis of to (including a request to pass over)
the particular requirements of the po- the particular individual is sustained
sition. or granted. An objection, including a
pass over request, may be sustained
332.404 Order of selection from cer- only if it is based on a proper and ade-
tificates. quate reason. The reasons set forth for
An appointing officer, with sole re- disqualification by OPM in part 339 of

gard to merit and fitness, shall select this chapter constitute proper and ade-
an eligible for: quate reasons to sustain an objection.
226
Similarly, the criteria for making suit- 332.407 Restriction of consideration

ability determinations in part 731 of to one sex.
this chapter constitute proper and ade- An appointing officer may not re-
quate reasons to sustain an objection. strict his consideration of eligibles or
In addition, reasons published by OPM employees for competitive appoint-
in the Delegated Examining Operations ment or appointment by noncompeti-
Handbook constitute proper and ade- tive action to a position in the com-
quate reasons to sustain an objection. petitive service to one sex, except in
(c) Sufficiency of the reasons for a pass unusual circumstances when OPM finds
over. Subject to the exception set forth the action justified.
in paragraph (e) of this section, an [34 FR 5367, Mar. 19, 1969. Redesignated at 42
agency may not pass over a preference FR 61240, Dec. 2, 1977]
eligible to select a non-preference eli-
gible unless OPM or an agency with PART 333 [RESERVED]
delegated authority also makes a de-
termination that the sufficiency of the PART 334TEMPORARY ASSIGN-
reasons is supported by the evidence
submitted for the pass over request.
MENTS UNDER THE INTERGOV-
(d) Agencys obligation while request for
ERNMENTAL PERSONNEL ACT
objection is pending. Subject to the ex-
(IPA)
ception set forth in paragraph (e) of
Sec.
this section, if an agency makes an ob- 334.101 Purpose.
jection against an applicant for a posi- 334.102 Definitions.
tion (including seeking to pass over the 334.103 Requirements for approval of instru-
applicant), and the individual that the mentalities or authorities of State and
agency wishes to select would be with- local governments and other organiza-
in reach of selection only if the objections.
334.104 Length of assignment.
tion is sustained, or the pass over 334.105 Obligated service requirement.
granted, that agency may not make a 334.106 Requirement for written agreement.
selection for the position until a final 334.107 Termination of agreement.
ruling is made. 334.108 Reports required.
(e) Applicability of paragraphs (c) and AUTHORITY: 5 U.S.C. 3376; E.O. 11589, 3 CFR
(d). Paragraphs (c) and (d) of this sec- 557 (19711975)
tion do not apply if the agency has SOURCE: 71 FR 54565, Sept. 18, 2006, unless
more than one position to fill from the otherwise noted.
same certificate and holds open (in the
event the objection is not sustained or 334.101 Purpose.
the pass over request is denied) a posi- The purpose of this part is to imple-
tion that could be filled by the indi- ment title IV of the Intergovernmental
vidual against whom an objection or a Personnel Act (IPA) of 1970 and title VI
pass over request has been filed. of the Civil Service Reform Act. These
(f) Procedures for objections and pass statutes authorize the temporary as-
overs. Agencies must follow the proce- signment of employees between the
dures for objecting to or requesting to Federal Government and State, local,
pass over an eligible that are published and Indian tribal governments, institu-
by OPM in the Delegated Examining Op- tions of higher education and other eli-
erations Handbook. gible organizations.
(g) No appeal rights to Merit Systems 334.102 Definitions.
Protection Board (MSPB). An individual
may not appeal to the MSPB a decision In this part:
by OPM or an agency with delegated Assignment means a period of service
authority to sustain an objection pur- under chapter 33, subchapter VI of title
suant to this part, including a decision 5, United States Code;
to grant a pass over request, irrespec- Employee, for purposes of participa-
tion in this Program, means an indi-

tive of the reason for the decision.
vidual serving in a Federal agency
[74 FR 30461, June 26, 2009] under a career or career-conditional
227
334.103 5 CFR Ch. I (1116 Edition)
appointment, including a career ap- (2) An association of State or local

pointee in the Senior Executive Serv- public officials;
ice, an individual under an appoint- (3) A nonprofit organization which of-
ment of equivalent tenure in an ex- fers, as one of its principal functions,
cepted service position, or an indi- professional advisory, research, edu-
vidual employed for at least 90 days in cational, or development services, or
a career position with a State, local, or related services, to governments or
Indian tribal government, institution universities concerned with public
of higher education, or other eligible management; or
organization; (4) A federally funded research and
Federal agency as defined in 5 U.S.C. development center.
3371(3) means an Executive agency, State as defined in 5 U.S.C. 3371(1)
military department, a court of the
means a State of the United States, the
United States, the Administrative Of-
District of Columbia, the Common-
fice of the United States Courts, the
wealth of Puerto Rico, the Trust Terri-
Library of Congress, the Botanic Gar-
tory of the Pacific Islands, the North-
den, the Government Printing Office,
ern Mariana Islands, and a territory or
the Congressional Budget Office, the
United States Postal Service, the Post- possession of the United States; an in-
al Rate Commission, the Office of the strumentality or authority of a State
Architect of the Capitol, the Office of or States; and a Federal-State author-
Technology Assessment, and such ity or instrumentality.
other similar agencies of the legisla- [71 FR 54565, Sept. 18, 2006, as amended at 77
tive and judicial branches as deter- FR 28215, May 11, 2012]
mined appropriate by the Office of Per-
sonnel Management; 334.103 Requirements for approval of
Indian tribal government as defined in instrumentalities or authorities of
5 U.S.C. 3371(2)(c) means any Indian State and local governments and
tribe, band, nation, or other organized other organizations.
group or community, including any (a) Organizations interested in par-
Alaska Native village as defined in the ticipating in the IPA mobility program
Alaska Native Claims Settlement Act as an instrumentality or authority of a
(85 Stat. 668), which is recognized as el- State or local government or as an
igible for the special programs and other organization as set out in this
services provided by the United States part must have their eligibility cer-
to Indians because of their status as In- tified by the Federal agency with
dians and includes any tribal organiza- which they are entering into an assign-
tion as defined in section 4(c) of the In- ment.
dian Self-Determination and Education (b) Written requests for certification
Assistance Act; must include a copy of the organiza-
Institution of higher education means a tions:
domestic, accredited public or private
(1) Articles of incorporation;
4-year and/or graduate level college or
university, or a technical or junior col- (2) Bylaws;
lege; (3) Internal Revenue Service non-
Local government as defined in 5 profit statement; and
U.S.C. 3371(2)(A) and (B) means: (4) Any other information which indi-
(1) Any political subdivision, instru- cates that the organization has as a
mentality, or authority of a State or principal function the offering of pro-
States; and fessional advisory, research, edu-
(2) Any general or special purpose cational, or development services, or
agency of such a political subdivision, related services to governments or uni-
instrumentality, or authority; versities concerned with public man-
Other organization as defined in 5 agement.
U.S.C. 3371(4) means: (c) Federally funded research and de-
(1) A national, regional, Statewide, velopment centers which appear on a
area wide, or metropolitan organiza- master list maintained by the National

tion representing member State or Science Foundation are eligible to par-
local governments; ticipate in the program.
228
(d) An organization denied certifi- sibilities of the parties, as specified in

cation by an agency may request re- 5 U.S.C. 33733375.
consideration by the Office of Per- (b) Federal agencies must maintain a
sonnel Management (OPM). copy of each assignment agreement
form established under this part, in-
334.104 Length of assignment. cluding any modification to the agree-
(a) The head of a Federal agency, or ment. The agency may determine the
his or her designee, may make an as- appropriate time period for retaining
signment for up to 2 years, which may copies of its written agreements.
be extended for up to 2 more years if
the parties agree. 334.107 Termination of agreement.
(b) A Federal agency may not send an (a) An assignment may be terminated
employee on an assignment if that per- at any time at the request of the Fed-
son is a Federal employee and has par- eral agency or the State, local, Indian
ticipated in this program for more than tribal government, institution of high-
a total of 6 years during his or her Fed- er education, or other organization
eral career. OPM may waive this re-
participating in this program. Where
striction upon the written request of
possible, the party terminating the as-
the agency head, or his or her designee.
signment prior to the agreed upon date
(c) A Federal agency may not send or
should provide 30-days advance notice
receive an employee on an assignment
along with a statement of reasons, to
if the employee has participated in this
program for 4 continuous years with- the other parties to the agreement.
out at least a 12-month return to duty (b) Federal assignees continue to en-
with the organization from which the cumber the positions they occupied
employee was originally assigned. Suc- prior to assignment, and the position is
cessive assignments with a break of no subject to any personnel actions that
more than 60 calendar days will be re- might normally occur. At the end of
garded as continuous service under the the assignment, the employee must be
mobility authority. allowed to resume the duties of the em-
ployees position or must be reassigned
334.105 Obligated service require- to another position of like pay and
ment. grade.
(a) A Federal employee assigned (c) An assignment is terminated
under this part must agree, as a condi- automatically when the employer-em-
tion of accepting an assignment, to ployee relationship ceases to exist be-
serve with the Federal Government tween the assignee or original em-
upon completion of the assignment for ployer.
a period equal to the length of the as- (d) OPM has the authority to direct
signment. Federal agencies to terminate assign-
(b) If the employee fails to carry out ments or take other corrective actions
this agreement, he or she must reim- when OPM finds assignments have been
burse the Federal agency for its share made in violation of the requirements
of the costs of the assignment (exclu- of the Intergovernmental Personnel
sive of salary and benefits). The head of Act or this part.
the Federal agency, or his or her des-
ignee, may waive this reimbursement 334.108 Reports required.
for good and sufficient reason.
A Federal agency which assigns an
334.106 Requirement for written employee to or receives an employee
agreement. from a State, local, Indian tribal gov-
(a) Before the assignment begins, the ernment, institution of higher edu-
assigned employee and the Federal cation, or other eligible organization in
agency, the State, local, Indian tribal accordance with this part must submit
government, institution of higher edu- to OPM such reports as OPM may re-
quest.
cation, or other eligible organization

must enter into a written agreement
recording the obligations and respon-
229
PART 335PROMOTION AND 335.102 Agency authority to promote,

INTERNAL PLACEMENT demote, or reassign.
Subject to 335.103 and, when applica-
Subpart AGeneral Provisions ble, to part 319 of this chapter, an agen-
cy may:
Sec. (a) Promote, demote, or reassign a
335.101 Effect of position change on status career or career-conditional employee;
and tenure. (b) Reassign an employee serving
335.102 Agency authority to promote, de- under a temporary appointment pend-
mote, or reassign. ing establishment of a register to a po-
335.103 Agency promotion programs. sition to which his original assignment
335.104 Eligibility for career ladder pro- could have been made by the same ap-
motion. pointing officer from the same recruit-
335.105 Notice of job announcements to ing list under the same order of consid-
OPM.
eration;
335.106 Special selection procedures for cer-
(c) Promote, demote, or reassign an
tain veterans under merit promotion.
employee serving under an overseas
Subpart B [Reserved] limited appointment of indefinite dura-
tion or an overseas limited term ap-
pointment to another position to which
AUTHORITY: 5 U.S.C. 2301, 2302, 3301, 3302,
3330; E.O. 10577, E.O. 11478, 3 CFR 19661970
an initial appointment under 301.201,
Comp., page 803, unless otherwise noted, E.O. 301.202, or 301.203 of this chapter is
13087; and E.O. 13152, 3 CFR 195458 Comp., p. authorized;
218; 5 U.S.C. 3304(f), and Pub. L. 106117. (d) Promote, demote, or reassign (1) a
status quo employee and (2) an em-
ployee serving under an indefinite ap-
Subpart AGeneral Provisions pointment in a competitive position,
335.101 Effect of position change on except that this authority may not be
status and tenure. used to move an employee:
(i) From a position in which an ini-
(a) Status. A position change author- tial overseas limited appointment is
ized by 335.102 does not change the authorized to another position; or
competitive status of an employee. (ii) To a position in which an initial
(b) Tenure. Except as provided in overseas limited appointment is au-
paragraph (c) of this section and thorized from another position; and
316.703 of this chapter, a position (e) Promote, demote, or reassign a
change authorized by 335.102 does not term employee serving on a given
change the tenure of an employee. project to another position within the
(c) Exceptions. (1) A career-condi- project which the agency has been au-
tional employee who is promoted, de- thorized to fill by term appointment;
moted, or reassigned to a position paid (f) Make time-limited promotions to
under chapter 45 of title 39, United fill temporary positions, accomplish
project work, fill positions temporarily
States Code, or required by law to be
pending reorganization or downsizing,
filled on a permanent basis becomes a
or meet other temporary needs for a
career employee. specified period of not more than 5
(2) A career employee who is pro- years, unless OPM authorizes the agen-
moted, demoted, or reassigned from a cy to make and/or extend time-limited
position paid under chapter 45 of title promotions for a longer period.
39, United States Code, or required by (1) The agency must give the em-
law to be filled on a permanent basis to ployee advance written notice of the
a position under the career-conditional conditions of the time-limited pro-
employment system becomes a career- motion, including the time limit of the
conditional employee unless he has promotion; the reason for a time limit;
completed the service requirement for the requirement for competition for
career tenure. promotion beyond 120 days, where ap-
plicable; and that the employee may be

[33 FR 12428, Sept. 4, 1968]
returned at any time to the position
from which temporarily promoted, or
230
to a different position of equivalent efits, or retaliation for exercising

grade and pay, and the return is not rights with respect to the categories
subject to the procedures in parts 351, enumerated above, where retaliation
432, 752, or 771 of this chapter. When an rights are available, and must be based
agency effects a promotion under a solely on job-related criteria.
nondiscretionary provision and is un- (2) Requirement 2. Areas of consider-
able to give advance notice to the em- ation must be sufficiently broad to en-
ployee, it must provide the notice as sure the availability of high quality
soon as possible after the promotion is candidates, taking into account the na-
made. ture and level of the positions covered.
(2) This paragraph applies to a ca- Agencies must also ensure that em-
reer, career-conditional, status quo, in- ployees within the area of consider-
definite, or term employee and to an ation who are absent for legitimate
employee serving under an overseas reason, e.g., on detail, on leave, at
limited appointment of indefinite dura- training courses, in the military serv-
tion, or an overseas limited term ap- ice, or serving in public international
pointment. organizations or on Intergovernmental
[33 FR 12428, Sept. 4, 1968, as amended at 35 Personnel Act assignments, receive ap-
FR 13075, Aug. 18, 1970; 45 FR 24855, Apr. 11, propriate consideration for promotion.
1980; 57 FR 10124, Mar. 24, 1992; 58 FR 59347, (3) Requirement 3. To be eligible for
Nov. 9, 1993] promotion or placement, candidates
must meet the minimum qualification
335.103 Agency promotion programs. standards prescribed by the Office of
(a) Merit promotion plans. Except as Personnel Management (OPM). Meth-
otherwise specifically authorized by ods of evaluation for promotion and
OPM, an agency may make promotions placement, and selection for training
under 335.102 of this part only to posi- which leads to promotion, must be con-
tions for which the agency has adopted sistent with instructions in part 300,
and is administering a program de- subpart A, of this chapter. Due weight
signed to insure a systematic means of shall be given to performance apprais-
selection for promotion according to als and incentive awards.
merit. These programs shall conform (4) Requirement 4. Selection proce-
to the requirements of this section. dures will provide for managements
(b) Merit promotion requirements(1) right to select or not select from
Requirement 1. Each agency must estab- among a group of best qualified can-
lish procedures for promoting employ- didates. They will also provide for
ees that are based on merit and are managements right to select from
available in writing to candidates. other appropriate sources, such as re-
Agencies must list appropriate excep- employment priority lists, reinstate-
tions, including those required by law ment, transfer, handicapped, or Vet-
or regulation, as specified in paragraph eran Recruitment Act eligibles or
(c) of this section. Actions under a pro- those within reach on an appropriate
motion planwhether identification, OPM certificate. In deciding which
qualification, evaluation, or selection source or sources to use, agencies have
of candidatesmust be made without an obligation to determine which is
regard to race, color, religion, sex (in- most likely to best meet the agency
cluding pregnancy and gender iden- mission objectives, contribute fresh
tity), national origin, age (as defined ideas and new viewpoints, and meet the
by the Age Discrimination in Employ- agencys affirmative action goals.
ment Act of 1967, as amended), dis- (5) Requirement 5. Administration of
ability, genetic information (including the promotion system will include rec-
family medical history), marital sta- ordkeeping and the provision of nec-
tus, political affiliation, sexual ori- essary information to employees and
entation, labor organization affiliation the public, ensuring that individuals
or nonaffiliation, status as a parent, or rights to privacy are protected. Each
any other non-merit-based factor, un- agency must maintain a temporary
less specifically designated by statute record of each promotion sufficient to

as a factor that must be taken into allow reconstruction of the promotion
consideration when awarding such ben- action, including documentation on
231
335.103 5 CFR Ch. I (1116 Edition)
how candidates were rated and ranked. (2) Noncompetitive actions. Competi-
These records may be destroyed after 2 tive procedures do not apply to:
years or after the program has been (i) A promotion resulting from the
formally evaluated by OPM (whichever upgrading of a position without signifi-
comes first) if the time limit for griev- cant change in the duties and respon-
ance has lapsed before the anniversary sibilities due to issuance of a new clas-
date. sification standard or the correction of
(c) Covered personnel actions(1) Com- an initial classification error; and
petitive actions. Except as provided in (ii) A position change permitted by
paragraphs (c)(2) and (3) of this section, reduction-in-force procedures in part
competitive procedures in agency pro- 351 of this chapter.
motion plans apply to all promotions (3) Discretionary actions. Agencies
under 335.102 of this part and to the may at their discretion except the fol-
following actions: lowing actions from competitive proce-
(i) Time-limited promotions under dures of this section:
335.102(f) of this part for more than 120 (i) A promotion without current com-
days to higher graded positions (prior petition of an employee who was ap-
service during the preceding 12 months pointed in the competitive from a civil
under noncompetitive time-limited service register, by direct hire, by non-
promotions and noncompetitive details competitive appointment or non-
to higher graded positions counts to- competitive conversion, or under com-
ward the 120-day total). A temporary petitive promotion procedures for an
promotion may be made permanent assignment intended to prepare the
without further competition provided employee for the position being filled
the temporary promotion was origi- (the intent must be made a matter of
nally made under competitive proce- record and career ladders must be doc-
dures and the fact that might lead to a umented in the promotion plan);
permanent promotion was made known (ii) A promotion resulting from an
to all potential candidates; employees position being classified at
(ii) Details for more than 120 days to a higher grade because of additional
a higher grade position or to a position duties and responsibilies;
with higher promotion potential (prior (iii) A temporary promotion, or de-
service during the preceding 12 months tail to a higher grade position or a po-
under noncompetitive details to higher sition with known promotion poten-
graded positions and noncompetitive tial, of 120 days or less;
time-limited promotions counts toward (iv) Promotion to a grade previously
the 120-day total); held on a permanent basis in the com-
(iii) Selection for training which is petitive service (or in another merit
part of an authorized training agree- system with which OPM has an inter-
ment, part of a promotion program, or change agreement approved under 6.7
required before an employee may be of this chapter) from which an em-
considered for a promotion as specified ployee was separated or demoted for
in 410.302 of this chapter; other than performance or conduct rea-
(iv) Reassignment or demotion to a sons;
position with more promotion poten- (v) Promotion, reassignment, demo-
tial than a position previously held on tion, transfer, reinstatement, or detail
a permanent basis in the competitive to a position having promotion poten-
service (except as permitted by reduc- tial no greater than the potential of a
tion-in-force regulations); position an employee currently holds
(v) Transfer to a position at a higher or previously held on a permanent
grade or with more promotion poten- basis in the competitive service (or in
tial than a position previously held on another merit system with which OPM
a permanent basis in the competitive has an interchange agreement ap-
service; and proved under 6.7 of this chapter) and
(vi) Reinstatement to a permanent or did not lose because of performance or
temporary position at a higher grade conduct reasons; and
or with more promotion potential than (vi) Consideration of a candidate not

a position previously held on a perma- given proper consideration in a com-
nent basis in the competitive service. petitive promotion action.
232
(vii) Appointments of career SES ap- 335.106 Special selection procedures

pointees with competitive service rein- for certain veterans under merit
statement eligibility to any position promotion.
for which they qualify in the competi- Preference eligibles or veterans who
tive service at any grade or salary have been separated under honorable
level, including Senior-Level positions conditions from the armed forces after
established under 5 CFR Part 319Em- completing (as determined by the agen-
ployment in Senior-Level and Sci- cy) 3 or more years of continuous ac-
entific and Professional positions. tive military service may compete for
(d) Grievances. Employees have the vacancies under merit promotion when
right to file a complaint relating to a an agency accepts applications from
promotion action. Such complaints individuals outside its own workforce.
shall be resolved under appropriate Those veterans selected will be given
grievance procedures. The standards career or career conditional appoint-
for adjudicating complaints are set ments under 315.611 of this chapter.
forth in part 300, subpart A, of this [65 FR 14432, Mar. 17, 2000]
chapter. While the procedures used by
an agency to identify and rank quali- Subpart B [Reserved]
fied candidates may be proper subjects
for formal complaints or grievances,
nonselection from among a group of PART 337EXAMINING SYSTEM
properly ranked and certified can-
didates is not an appropriate basis for
a formal complaint or grievance. There Sec.
is no right of appeal of OPM, but OPM 337.101 Rating applicants.
may conduct investigations of substan- 337.102 Evaluating qualifications for em-
tial violations of OPM requirements. ployees who are in a retained grade.
[59 FR 67121, Dec. 29, 1994, as amended at 63 Subpart BDirect-Hire Authority

FR 34258, June 24, 1998; 70 FR 72067, Dec. 1,
2005; 79 FR 43922, July 29, 2014] 337.201 Coverage and purpose.
335.104 Eligibility for career ladder 337.203 Public notice requirements.
promotion. 337.204 Severe shortage of candidates.
337.205 Critical hiring needs.
No employee shall receive a career 337.206 Terminations, modifications, exten-
ladder promotion unless his or her cur- sions, and reporting.
rent rating of record under part 430 of
this chapter is Fully Successful Subpart CAlternative Rating and
(level 3) or higher. In addition, no em- Selection Procedures
ployee may receive a career ladder pro-
337.301 Coverage and purpose.
motion who has a rating below Fully 337.302 Definitions.
Successful on a critical element that 337.303 Agency responsibilities.
is also critical to performance at the 337.304 Veterans preference.
next higher grade of the career ladder. 337.305 Reporting requirements.
[51 FR 8411, Mar. 11, 1986] AUTHORITY: 5 U.S.C. 1104(a)(2), 1302, 2302,
3301, 3302, 3304, 3319, 5364; E.O. 10577, 3 CFR
335.105 Notice of job announcements 19541958 Comp., p. 218; 33 FR 12423, Sept. 4,
to OPM. 1968; 45 FR 18365, Mar. 21, 1980; 116 Stat. 2290,
sec. 1413 of Public Law 108136 (117 Stat.
Under 5 U.S.C. 3330, agencies are re- 1665), as amended by sec. 853 of Public Law
quired to report job announcements to 110181 (122 Stat. 250).
OPM for vacancies for which an agency
will accept applications from outside Subpart AGeneral Provisions
the agencys work force. This require-
ment is implemented through part 330, 337.101 Rating applicants.
subpart A of this chapter.
(a) OPM shall prescribe the relative

[66 FR 63906, Dec. 11, 2001, as amended at 75 weights to be given subjects in an ex-
FR 67605, Nov. 3, 2010] amination, and shall assign numerical
233
337.102 5 CFR Ch. I (1116 Edition)
ratings on a scale of 100. Except as oth- (b) Agencies must determine which
erwise provided in this chapter, each experience to consider on the basis of
applicant who meets the minimum re- which will most likely result in place-
quirements for entrance to an exam- ment. For placements or promotions
ination and is rated 70 or more in the after the retained grade period, the ex-
examination is eligible for appoint- perience is considered only at the grade
ment. level and in the series of the position
(b) OPM shall add to the earned nu- to which the employee was down-
merical ratings of applicants who graded.
make a passing grade:
(1) Five points for applicants who are [45 FR 18365, Mar. 21, 1980]
preference eligibles under section
2108(3)(A) and (B) of title 5, United Subpart BDirect-Hire Authority
States Code; and
(2) Ten points for applicants who are SOURCE: 69 FR 33275, June 15, 2004, unless
preference eligibles under section otherwise noted.
2108(3)(C)(G) of that title.
(c) When experience is a factor in de- 337.201 Coverage and purpose.
termining eligibility, OPM shall credit
OPM will permit an agency with del-
a preference eligible with:
egated examining authority under 5
(1) Time spent in the military service
(i) as an extension of time spent in the U.S.C. 1104(a)(2) to use direct-hire au-
position in which he was employed im- thority under 5 U.S.C. 3304(a)(3) for a
mediately before his entrance into the permanent or nonpermanent position
military service, or (ii) on the basis of or group of positions in the competi-
actual duties performed in the military tive service at GS15 (or equivalent)
service, or (iii) as a combination of and below, if OPM determines that
both methods. OPM shall credit time there is either a severe shortage of can-
spent in the military service according didates or a critical hiring need for
to the method that will be of most ben- such positions. It is not required that
efit to the preference eligible. this direct-hire authority be exercised
(2) All valuable experience, including by a delegated examining unit. Re-
experience gained in religious, civic, quests for direct-hire authority must
welfare, service, and organizational ac- be submitted by the agencys Chief
tivities, regardless of whether pay was Human Capital Officer (or equivalent)
received therefor. at the agency headquarters level. OPM
will determine the length of the direct-
[33 FR 12423, Sept. 4, 1968, as amended at 72 hire authority based on the justifica-
FR 12954, Mar. 20, 2007] tion.
337.102 Evaluating qualifications for
employees who are in a retained 337.202 Definitions.
grade. In this subpart:
(a) Employees who are in a retained (a) A direct-hire authority permits hir-
grade must have the experience they ing without regard to the provisions of
gain subsequent to the downgrading ac- 5 U.S.C. 3309 through 3318; part 211 of
tion that placed them in a retained this chapter; and subpart A of part 337
grade considered in the following man- of this chapter.
ner. For placements during the period (b) A severe shortage of candidates for
the employee is in a retained grade, a particular position or group of posi-
agencies must consider the experience tions means that an agency is having
subsequent to the downgrading action difficulty identifying candidates pos-
to be either: sessing the competencies or the knowl-
(1) At the level of the retained grade edge, skills, and abilities required to
and in the series of the position which perform the job requirements despite
he or she occupied at the time of the extensive recruitment, extended an-
downgrading; or nouncement periods, and the use, as
(2) At the grade and in the series of applicable, of hiring flexibilities such
the position to which the employee is as recruitment or relocation incentives
downgraded. or special salary rates.
234
(c) A critical hiring need for a par- (5) The availability and quality of
ticular position or group of positions candidates;
means that an agency has a need to fill (6) The desirability of the geographic
the position(s) to meet mission relocation of the position(s);
quirements brought about by cir- (7) The desirability of the duties and/
cumstances such as, but not limited to, or work environment associated with
a national emergency, threat, potential the position(s); and
threat, environmental disaster, or un- (8) Other pertinent information such
anticipated or unusual event or mis-
as selective placement factors or other
sion requirement, or to conform to the
special requirements of the position, as
requirements of law, a Presidential di-
rective or Administration initiative. well as agency use of hiring flexibili-
ties such as recruitment or retention
337.203 Public notice requirements. allowances or special salary rates.
(c) A department or agency head
Agencies must comply with public
notice requirements as prescribed in 5 (other than the Secretary of Defense)
U.S.C. 3327 and 3330, and subpart A of may determine, pursuant to section
part 330 of this chapter with respect to 1413(a) of Public Law 108136, as amend-
any position that an agency seeks to ed by section 853 of Public Law 110181,
fill using direct-hire authority. that a shortage of highly qualified can-
didates exists for certain Federal ac-
[69 FR 33275, June 15, 2004, as amended at 75 quisition positions (covered under sec-
FR 67605, Nov. 3, 2010]
tion 433(g)(1)(A) of title 41, United
337.204 Severe shortage of can- States Code). To make such a deter-
didates. mination, the deciding agency official
must use the supporting evidence pre-
(a) OPM will determine when a severe
scribed in 5 CFR 337.204(b)(1)(8) and
shortage of candidates exists for par-
ticular occupations, grades (or equiva- must maintain a file of the supporting
lent), and/or geographic locations. OPM evidence for documentation and report-
may decide independently that such a ing purposes.
shortage exists, or may make this deci- [69 FR 33275, June 15, 2004, as amended at 70
sion in response to a written request FR 44847, Aug. 4, 2005; 74 FR 61263, Nov. 24,
from an agency. 2009]
(b) An agency when requesting di-
rect-hire authority under this section, 337.205 Critical hiring needs.
or OPM when deciding independently, (a) OPM will determine when there is
must identify the position or positions a critical hiring need for particular oc-
that are difficult to fill and must pro- cupations, grades (or equivalent) and/or
vide supporting evidence that dem- geographic locations. OPM may decide
onstrates the existence of a severe independently that such a need exists
shortage of candidates with respect to or may make this decision in response
the position(s). The evidence should in- to a written request from an agency.
clude, as applicable, information
(b) An agency when requesting di-
about:
rect-hire authority under this section,
(1) The results of workforce planning
or OPM when deciding on its own,
and analysis;
must:
(2) Employment trends including the
local or national labor market; (1) Identify the position(s) that must
(3) The existence of nationwide or ge- be filled;
ographic skills shortages; (2) Describe the event or cir-
(4) Agency efforts, including recruit- cumstance that has created the need to
ment initiatives, use of other appoint- fill the position(s);
ing authorities (e.g., schedule A, sched- (3) Specify the duration for which the
ule B) and flexibilities, training and de- critical need is expected to exist; and
velopment programs tailored to the po- (4) Include supporting evidence that
sition(s), and an explanation of why demonstrates why the use of other hir-
these recruitment and training efforts ing authorities is impracticable or in-
have not been sufficient; effective.
235
337.206 5 CFR Ch. I (1116 Edition)
337.206 Terminations, modifications, 337.301 Coverage and purpose.

extensions, and reporting.
This subpart implements the cat-
(a) Termination and modification. On a egory rating and selection procedures
periodic basis, for each direct-hire au- at 5 U.S.C. 3319. This law authorizes
thority, OPM will review agency use of agencies with delegated examining au-
the authority to ensure proper admin- thority under 5 U.S.C. 1104(a)(2) to de-
istration and to determine if continued velop a category rating method as an
use of the authority is supportable. alternative process to assess applicants
OPM will terminate or modify a direct- for jobs filled through competitive ex-
hire authority if it determines that amining.
there is no longer a severe shortage of
candidates or a critical hiring need. 337.302 Definitions.
Likewise, when an agency finds there In this subpart:
are adequate numbers of qualified can- (a) Category rating is synonymous
didates for positions previously filled with alternative rating as described at
under direct-hire authorities, based on 5 U.S.C. 3319, and is a process of evalu-
severe shortage of candidates, the ating qualified eligibles by quality cat-
agency is required to report this egories rather than by assigning indi-
change of events to OPM. OPM may vidual numeric scores. The agency as-
also terminate an agencys authority sesses candidates against job-related
when the agency has used an authority criteria and then places them into two
improperly. or more pre-defined categories.
(b) Extension. OPM may extend di- (b) Quality categories are groupings of
rect-hire authority if OPM determines, individuals with similar levels of job-
based on relevant, recent, and support- related competencies or similar levels
able data, that there is or will continue of knowledge, skills, and abilities.
to be a severe shortage of candidates or
a critical hiring need for particular po- 337.303 Agency responsibilities.
sitions as of the date the authority is
To use a category rating procedure,
due to expire. In their requests for ex-
agencies must:
tensions of direct-hire authorities,
(a) Establish a system for evaluating
agencies must include an update of the
applicants that provides for two or
supporting evidence that demonstrated
more quality categories;
the need for the original authority.
(b) Define each quality category
(c) Reporting requirement. On a peri-
through job analysis conducted in ac-
odic basis, OPM may request informa-
cordance with the Uniform Guidelines
tion from agencies regarding their use
on Employee Selection Procedures at 29
of these direct-hire authorities. The re-
CFR part 1607 and part 300 of this chap-
quested information may include num-
ter. Each category must have a clear
bers of positions, title, series, and
definition that distinguishes it from
grade of positions advertised under the
other categories;
direct-hire authority, the number of
(c) Describe each quality category in
qualified applicants, the specific quali-
the job announcement and apply the
fication criteria, and the number of ap-
provisions of part 330, subparts B, F,
plicants appointed under the authority.
and G of this chapter;
(d) No new appointments may be
(d) Place applicants into categories
made under the provisions of section
based upon their job-related com-
1413 of Public Law 108136 after Sep-
petencies or their knowledge, skills,
tember 30, 2012.
and abilities; and
[69 FR 33275, June 15, 2004, as amended at 70 (e) Establish documentation and
FR 44847, Aug. 4, 2005; 74 FR 61263, Nov. 24, record keeping procedures for recon-
2009] struction purposes.
Subpart CAlternative Rating and 337.304 Veterans preference.

Selection Procedures In this subpart:
(a) Veterans preference must be ap-

SOURCE: 69 FR 33276, June 15, 2004, unless plied as prescribed in 5 U.S.C. 3319(b)
otherwise noted. and (c)(2);
236
(b) Veterans preference points as Subpart ACitizenship

prescribed in section 337.101 of this part Requirements
are not applied in category rating; and
(c) Sections 3319(b) and 3319(c)(2) of 338.101 Citizenship.
title 5, U.S.C. constitute veterans pref- (a) A person may be admitted to com-
erence requirements for purposes of 5 petitive examination only if he is a cit-
U.S.C. 2302(b)(11)(A) and (B). izen of or owes permanent allegiance to
[71 FR 3409, Jan. 23, 2006] the United States.
(b) A person may be given an ap-
337.305 Reporting requirements. pointment in the competitive service
only if he or she is a citizen of or owes
Any agency that uses category rating
permanent allegiance to the United
must forward to OPM a copy of the an- States. However, a noncitizen may be
nual report that it must submit to given an appointment in rare cases
Congress pursuant to 5 U.S.C. 3319(d). under 316.601 of this chapter, unless
Agencies must send their annual re- the appointment is prohibited by stat-
ports to the Speaker of the House and ute.
the President of the Senate. The report (c) Paragraph (b) of this section ap-
must include the following informa- plies to reinstatement and transfer as
tion: well as to other noncompetitive ap-
(a) The number of employees hired pointments, and to conversion to ca-
under the system; reer or career-conditional employment.
(b) The impact that system has had
on the hiring of veterans and minori- FR 10124, Mar. 24, 1992]
ties, including those who are American
Indian or Alaska Natives, Asian, Black
Subpart B [Reserved]
or African American, and native Ha-
waiian or other Pacific Islanders; and
(c) The way managers were trained in Subpart CConsideration for
the administration of category rating. Appointment
EFFECTIVE DATE NOTE: At 80 FR 75786, Dec. 338.301 Competitive service appoint-
4, 2015, 337.305 was removed, effective Jan. 4, ment.
2016. Agencies must ensure that employees
who are given competitive service ap-
PART 338QUALIFICATION pointments meet the requirements in-
REQUIREMENTS (GENERAL) cluded in the Office of Personnel Man-
agements Operating Manual: Quali-
Subpart ACitizenship Requirements fication Standards for General Sched-
ule Positions. The Operating Manual is
Sec. available to the public for review at
338.101 Citizenship. agency personnel offices and Federal
depository libraries, and for purchase
Subpart B [Reserved] from the Government Printing Office.
Subpart CConsideration for Appointment [62 FR 44535, Aug. 22, 1997]
338.301 Competitive service appointment.

Subparts DE [Reserved]
Subparts DE [Reserved]
Subpart FAge Requirements
Subpart FAge Requirements
338.601 Prohibition of maximum-age
338.601 Prohibition of maximum-age re- requirements.
quirements.
A maximum-age requirement may
AUTHORITY: 5 U.S.C. 3301, 3302, 3304; E.O. not be applied in either competitive or
10577, 3 CFR, 19541958 comp., p. 218.
noncompetitive examinations for posi-

tions in the competitive service except
as provided by:
237
(a) Section 3307 of title 5, United 339.102 Purpose and effect.

States Code; or
(a) This part defines the cir-
(b) Public Law 93259 which author- cumstances under which medical docu-
izes OPM to establish a maximum-age mentation may be acquired and exami-
requirement after determining that age nations and evaluations conducted to
is an occupational qualification nec- determine the nature of a medical con-
essary to the performance of the duties dition which may affect safe and effi-
of the position. cient performance.
[40 FR 42734, Sept. 16, 1975] (b) Personnel decisions based wholly
or in part on the review of medical doc-
PART 339MEDICAL umentation and the results of medical
QUALIFICATION DETERMINATIONS examinations and evaluations shall be
made in accordance with appropriate
parts of this title.
Subpart AGeneral
(c) Failure to meet a properly estab-
Sec. lished medical standard or physical re-
339.101 Coverage. quirement under this part means that
339.102 Purpose and effect. the individual is not qualified for the
339.103 Compliance with EEOC regulations. position unless a waiver or reasonable
339.104 Definitions. accommodation is indicated, as de-
scribed in 339.103 and 339.204. An em-
Subpart BPhysical and Medical ployees refusal to be examined in ac-
Qualifications cordance with a proper agency order
339.201 Disqualification by OPM. authorized under this part is grounds
339.202 Medical standards. for appropriate disciplinary or adverse
339.203 Physical requirements. action.
339.204 Waiver of standards and require-
ments.
3061, Jan. 13, 1995]
339.205 Medical evaluation programs.
339.206 Disqualification on the basis of med- 339.103 Compliance with EEOC regu-
ical history. lations.
Subpart CMedical Examinations Actions under this part must be con-
sistent with 29 CFR 1613. 701 et seq. Par-
339.301 Authority to require an examina- ticularly relevant to medical qualifica-
tion.
tion determinations are 1613.704 (re-
339.302 Authority to offer examinations.
quiring reasonable accommodation of
339.303 Examination procedures.
339.304 Payment for examination.
individuals with handicaps); 1613.705
339.305 Records and reports. (prohibiting use of employment cri-
339.306 Processing medical eligibility deter- teria that screen out individuals with
minations on certificates of eligibles. handicaps unless shown to be related to
the job in question) and 1614.706 (pro-
AUTHORITY: 5 U.S.C. 3301, 3302, 5112; E.O.
9830, February 24, 1947.
hibiting pre-employment inquiries re-
lated to handicap and pre-employment
SOURCE: 54 FR 9763, Mar. 8, 1989, unless oth- medical examinations, except under
erwise noted. specified circumstances). In addition,
use of the term qualified in these
Subpart AGeneral regulations shall be interpreted con-
sistently with 1613.702(f), which pro-
339.101 Coverage. vides that a qualified handicapped
This part applies to all applicants for person is a handicapped person who,
and employees in competitive service with or without reasonable accommo-
positions; and to excepted service em- dation, can perform the essential func-
ployees when medical issues arise in tions of the position in question with-
connection with an OPM regulation out endangering the health and safety
which governs a particular personnel of the individual or others.
decision, for example, removal of a

preference eligible employee in the ex- 339.104 Definitions.
cepted service under part 752. For purposes of this part
238
Accommodation means reasonable ac- and activities, including the basis for
commodation as described in 29 CFR any conclusion that restrictions or ac-
1613.704. commodations are or are not war-
Arduous of hazardous positions means ranted, and where they are warranted,
positions that are dangerous or phys- an explanation of their therapeutic of
ically demanding to such a degree that risk avoiding value;
an incumbents medical condition is (f) An explanation of the medical
necessarily an important consideration basis for any conclusion which indi-
in determining ability to perform safe- cates the likelihood that the individual
ly and efficiently. is or is not expected to suffer sudden or
Medical condition means health im- subtle incapacitation by carrying out,
pairment which results from injury or with or without accommodation, the
disease, including psychiatric disease. tasks or duties of a specific position;
Medical documentation or documenta- (g) Narrative explanation of the med-
tion of a medical condition means a ical basis for any conclusion that the
statement from a licensed physician or medical condition has or has not be-
other appropriate practitioner which come static or well stabilized and the
provides information the agency con- likelihood that the individual may ex-
siders necessary to enable it to make perience sudden or subtle incapacita-
an employment decision. To be accept- tion as a result of the medical condi-
able, the diagnosis or clinical impres- tion. In this context, static or well-
sion must be justified according to es- stabilized medical condition means a
tablished diagnostic criteria and the medical condition which is not likely
conclusions and recommendations to change as a consequence of the nat-
must not be inconsistent with gen- ural progression of the condition, spe-
erally accepted professional standards. cifically as a result of the normal
The determination that the diagnosis aging process, or in response to the
meets these criteria is made by or in work environment or the work itself.
coordination with a physician or, if ap- Subtle incapacitation means grad-
propriate, a practitioner of the same ual, initially imperceptible impairment
discipline as the one who issued the of physical or mental function whether
statement. An acceptable diagnosis reversible or not which is likely to re-
must include the following informa- sult in performance or conduct defi-
tion, or parts identified by the agency ciencies. Sudden incapacitation
as necessary and relevant: means abrupt onset of loss of control of
(a) The history of the medical condi- physical or mental function.
tions, including references to findings Medical evaluation program means a
from previous examinations, treat- program of recurring medical examina-
ment, and responses to treatment; tions or tests established by written
(b) Clinical findings from the most agency policy or directive, to safeguard
recent medical evaluation, including the health of employees whose work
any of the following which have been may subject them or others to signifi-
obtained: Findings of physical exam- cant health or safety risks due to occu-
ination; results of laboratory tests; X- pational or environmental exposure or
rays; EKGs and other special evalua- demands.
tions or diagnostic procedures; and, in Medical standard is a written descrip-
the case of psychiatric evaluation of tion of the medical requirements for a
psychological assessment, the findings particular occupation based on a deter-
of a mental status examination and the mination that a certian level of fitness
results of psychological tests, if appro- of health status is required for success-
priate; ful performance.
(c) Diagnosis, including the current Physical requirement is a written de-
clinical status; scription of job-related physical abili-
(d) Prognosis, including plans for fu- ties which are normally considered es-
ture treatment and an estimate of the sential for successful performance in a
expected date of full or partial recov- specific position.
ery; Physician means a licensed Doctor of

(e) An explanation of the impact of Medicine or Doctor of Osteopathy, or a
the medical condition on overall health physician who is serving on active duty
239
339.201 5 CFR Ch. I (1116 Edition)
in the uniformed services and is des- 339.203 Physical requirements.

ignated by the uniformed service to
Agencies are authorized to establish
conduct examinations under this part.
physical requirements for individual
Practitioner means a person providing
health services who is not a medical positions without OPM approval when
doctor, but who is certified by a na- such requirements are considered es-
tional organization and licensed by a sential for successful job performance.
State to provide the service in ques- The requirements must be clearly sup-
tion. ported by the actual duties of the posi-
tion and documented in the position
Subpart BPhysical and Medical description.
Qualifications 339.204 Waiver of standards and re-
quirements.
339.201 Disqualification by OPM.
Subject to subpart C of part 731 of Agencies must waive a medical
this chapter, OPM may deny an appli- standard or physical requirement es-
cant examination, deny an eligible ap- tablished under this part when there is
pointment, and instruct an agency to sufficient evidence that an applicant or
remove an appointee by reason of phys- employee, with or without reasonable
ical or mental unfitness for the posi- accommodation, can perform the es-
tion for which he or she has applied, or sential duties of the position without
to which he or she has been appointed. endangering the health and safety of
An OPM decision under this section is the individual or others.
separate and distinct from a deter-
mination of disability under 831.502, 339.205 Medical evaluation programs.
844.103, 844.202, or subpart L of part Agencies may establish periodic ex-
831 of this title, and does not nec- amination or immunization programs
essarily entitle the employee to dis- by written policies or directives to
ability retirement under sections 8337 safeguard the health of employees
or 8451 of title 5, United States Code. whose work may subject them or oth-
339.202 Medical standards. ers to significant health or safety risks
due to occupational or environmental
OPM may establish or approve med- exposure or demands. The need for a
ical standards for a Governmentwide
medical evaluation program must be
occupation (i.e., an occupation common
clearly supported by the nature of the
to more than one agency). An agency
may establish medical standards for work. The specific positions covered
positions that predominate in that must be identified and the applicants
agency (i.e., where the agency has 50 or incumbents notified in writing of
percent or more of the positions in a the reasons for including the positions
particular occupation). Such standards in the program.
must be justified on the basis that the
duties of the position are arduous or 339.206 Disqualification on the basis
of medical history.
hazardous, or require a certain level of
health status or fitness because the na- A candidate may not be disqualified
ture of the positions involve a high de- for any position solely on the basis of
gree of responsibility toward the public medical history. For positions with
or sensitive national security concerns. medical standards or physical require-
The rationale for establishing the ments, or positions subject to medical
standard must be documented. Stand- evaluation programs, a history of a
ards established by OPM or an agency particular medical problem may result
must be: in medical disqualification only if the
(a) Established by written directive condition at issue is itself disquali-
and uniformly applied, fying, recurrence cannot medically be
(b) Directly related to the actual re- ruled out, and the duties of the posi-
quirements of the position.
tion are such that a recurrence would

[54 FR 9763, Mar. 8, 1989, as amended at 66 FR pose a reasonable probability of sub-
66710, Dec. 27, 2001] stantial harm.
240
Subpart CMedical Examinations ical evaluation program established

under this part.
339.301 Authority to require an ex- (2) A psychiatric examination or psy-
amination. chological assessment authorized under
(a) A routine preappointment exam- (i) or (ii) above must be conducted in
ination is appropriate only for a posi- accordance with accepted professional
tion which has specific medical stand- standards, by a licensed practitioner or
ards, physical requirements, or is cov- physician authorized to conduct such
ered by a medical evaluation program examinations, and may only be used to
established under these regulations. make legitimate inquiry into a per-
sons mental fitness to successfully
(b) Subject to 339.103 of this part, an
perform the duties of his or her posi-
agency may require an individual who
tion without undue hazard to the indi-
has applied for or occupies a position
vidual or others.
which has medical standards or phys-
ical requirements or which is part of an 339.302 Authority to offer examina-
established medical evaluation pro- tions.
gram, to report for a medical examina-
An agency may, at its option, offer a
tion:
medical examination (including a psy-
(1) Prior to appointment or selection chiatric evaluation) in any situation
(including reemployment on the basis where the agency needs additional
of full or partial recovery from a med- medical documentation to make an in-
ical condition); formed management decision. This
(2) On a regularly recurring, periodic may include situations where an indi-
basis after appointment; or vidual requests for medical reasons a
(3) Whenever there is a direct ques- change in duty status, assignment,
tion about an employees continued ca- working conditions, or any other ben-
pacity to meet the physical or medical efit or special treatment (including
requirements of a position. reasonable accommodation or reem-
(c) An agency may require an employment on the basis of full or partial
ployee who has applied for or is receiv- recovery from a medical condition) or
ing continuation of pay or compensa- where the individual has a performance
tion as a result of an on-the-job injury or conduct problem which may require
or disease to report for an examination agency action. Reasons for offering an
to determine medical limitations that examination must be documented. An
may affect placement decisions. offer of an examination shall be carried
(d) An agency may require an em- out and used in accordance with 29
ployee who is released from his or her CFR 1613.706.
competitive level in a reduction in
force to undergo a relevant medical 339.303 Examination procedures.
evaluation if the position to which the (a) When an agency orders or offers a
employee has reassignment rights has medical examination under this sub-
medical standards or specific physical part, it must inform the applicant or
requirements which are different from employee in writing of its reasons for
those required in the employees cur- doing so and the consequences of fail-
rent position. ure to cooperate. (A single notification
(e)(1) An agency may order a psy- is sufficient to cover a series of regu-
chiatric examination (including a psy- larly recurring or periodic examina-
chological assessment) only when: tions ordered under this subpart.)
(i) The result of a current general (b) The agency designates the exam-
medical examination which the agency ining physician or other appropriate
has the authority to order under this practitioner, but must offer the indi-
section indicates no physical expla- vidual an opportunity to submit med-
nation for behavior or actions which ical documentation from his or her per-
may affect the safe and efficient personal physician or practitioner. The
formance of the individual or others, or agency must review and consider all
(ii) A phychiatric examination is spe- such documentation supplied by the in-

cifically called for in a position having dividuals personal physician or practi-
medical standards or subject to a med- tioner.
241
339.304 5 CFR Ch. I (1116 Edition)
339.304 Payment for examination. Postal Service in favor of a non-

preference eligible,
Agencies shall pay for all examina-
tions ordered or offered under this sub- (3) Medically disqualify a 30 percent
part, whether conducted by the agen- or more compensably disabled veteran
cys physician or the applicants or em- for assignment to another position in a
ployees physician. Applicants and em- reduction in force, or
ployees must pay for a medical exam- (4) Medically disqualify a 30 percent
ination conducted by a private physi- or more disabled veteran for non-
cian (or practitioner) where the pur- competitive appointment.
pose of the examination is to secure a
benefit sought by the applicant or em- PART 340OTHER THAN FULL-TIME
ployee. CAREER EMPLOYMENT (PART-
TIME, SEASONAL, ON-CALL, AND
339.305 Records and reports. INTERMITTENT)
(a) Agencies will receive and main-
tain all medical documentation and Subpart APrincipal Statutory
records of examinations obtained under RequirementsPart-Time Employment
this part in accordance with instruc-
tions provided by OPM, under provi- Sec.
sions of 5 CFR part 293, subpart E. 340.101 Principal statutory requirements.
(b) The report of an examination con-
Subpart BRegulatory Requirements
ducted under this subpart must be
Part-Time Employment
made available to the applicant or em-
ployee under the provisions of part 297 340.201 Regulatory requirements.
of this chapter. 340.202 General.
(c) Agencies must forward to the Of- 340.203 Technical assistance.
fice of Workers Compensation Pro- 340.204 Agency reporting.
grams (OWCP), Department of Labor, a
copy of all medical documentation and Subpart C [Reserved]
reports of examinations of individuals
who are receiving or have applied for Subpart DSeasonal and Intermittent
injury compensation benefits including Employment
continuation of pay. The agency must 340.401 Definitions.
also report to the OWCP the failure of 340.402 Seasonal employment.
such individuals to report for examina- 340.403 Intermittent employment.
tions that the agency orders under this
AUTHORITY: 5 U.S.C. 3401 et seq., unless oth-
subpart. When the individual has ap- erwise noted.
plied for disability retirement, this in-
formation must be forwarded to OPM. SOURCE: 44 FR 57380, Oct. 5, 1979, unless
otherwise noted.
339.306 Processing medical eligibility
determinations on certificates of Subpart APrincipal Statutory Re-
eligibles.
quirementsPart-Time Em-
(a) In accordance with the provisions ployment
of this part, agencies are authorized to
medically disqualify a nonpreference 340.101 Principal statutory require-
eligible. A nonpreference eligible so ments.
disqualified has a right to a higher This subpart incorporates for the
level review of the determination with- benefit of the user of the principal stat-
in the agency. utory requirements governing part-
(b) OPM must approve the sufficiency time career employment, as contained
of the agencys reasons to: in 5 U.S.C. 34013408, and related provi-
(1) Medically disqualify or pass over sions of Public Law 95437.
a preference eligible on a certificate in
place of a nonpreference eligible, SHORT TITLE
(2) Medically disqualify or pass over SEC. 1. This Act may be cited as the Fed-
a 30 percent or more compensably dis- eral Employees Part-Time Career Employ-
abled veteran for a position in the U.S. ment Act of 1978.
242
CONGRESSIONAL FINDINGS AND PURPOSE 3402. Establishment of part-time career
employment programs
SEC. 2. (a) The Congress finds that
(1) many individuals in our society possess (a) (1) In order to promote part-time ca-
great productive potential which goes un- reer employment opportunities in all grade
used because they cannot meet the require- levels, the head of each agency, by regula-
ments of a standard workweek; and tion, shall establish and maintain a program
(2) part-time permanent employment for part-time career employment within
(A) provides older individuals with a grad- such agency. Such regulations shall provide
ual transition into retirement; for
(A) the review of positions which, after
(B) provides employment opportunities to
such positions become vacant, may be filled
handicapped individuals or others who re-
on a part-time career employment basis (in-
quire a reduced workweek;
cluding the establishment of criteria to be
(C) provides parents opportunities to bal-
used in identifying such positions);
ance family responsibilities with the need
(B) procedures and criteria to be used in
for additional income;
connection with establishing or converting
(D) benefits students who must finance
positions for part-time career employment,
their own education or vocational training;
subject to the limitations of section 3393 of
(E) benefits the Government, as an em- this title;
ployer, by increasing productivity and job (C) annual goals for establishing or con-
satisfaction, while lowering turnover rates verting positions for part-time career em-
and absenteeism, offering management more ployment, and a timetable setting forth in-
flexibility in meeting work requirements, terim and final deadlines for achieving such
and filling shortages in various occupations; goals;
and
(D) a continuing review and evaluation of
(F) benefits society by offering a needed al- the part-time career employment program
ternative for those individuals who require established under such regulations; and
or prefer shorter hours (despite the reduced (E) procedures for notifying the public of
income), thus increasing jobs available to re- vacant part-time positions in such agency,
duce unemployment while retaining the utilizing facilities and funds otherwise avail-
skills of individuals who have training and able to such agency for the dissemination of
experience. information.
(b) The purpose of this Act is to provide in- (2) The head of each agency shall provide
creased part-time career employment oppor- for communication between, and coordina-
tunities throughout the Federal Govern- tion of the activities of, the individuals with-
ment. in such agency whose responsibilities relate
3401. Definitions to the part-time career employment program
For the purpose of this subchapter established within that agency.
(3) Regulations established under para-
(1) agency means
graph (1) of this subsection may provide for
(A) an Executive agency;
such exceptions as may be necessary to carry
(B) a military department;
out the mission of the agency.
(C) an agency in the judicial branch;
(b) (1) The Civil Service Commission, by
(D) the Library of Congress; regulation, shall establish and maintain a
(E) the Botanic Garden; and program under which it shall, on the request
(F) the Office of the Architect of the Cap- of an agency, advise and assist such agency
itol; but does not include in the establishment and maintenance of its
(i) a Government controlled corporation; part-time career employment program under
(ii) the Tennessee Valley Authority; this subchapter.
(iii) the Alaska Railroad; (2) The Commission shall conduct a re-
(iv) the Virgin Island Corporation; search and demonstration program with re-
(v) the Panama Canal Company; spect to part-time career employment within
(vi) the Federal Bureau of Investigation, the Federal Government. In particular, such
Department of Justice; program shall be directed to
(vii) the Central Intelligence Agency; and (A) determining the extent to which part-
(viii) the National Security Agency, De- time career employment may be used in fill-
partment of Defense; and ing positions which have not traditionally
(2) part-time career employment means been open for such employment on any ex-
part-time employment of 16 to 32 hours a tensive basis, such as supervisory, manage-
week under a schedule consisting of an equal rial, and professional positions;
or varied number of hours per day, whether (B) determining the extent to which job-
in a position which would be part-time with- sharing arrangements may be established for
out regard to this section or one established various occupations and positions; and
to allow job-sharing or comparable arrange- (C) evaluating attitudes, benefits, costs,

ments, but does not include employment on efficiency, and productivity associated with
a temporary or intermittent basis. part-time career employment, as well as its
243
340.101 5 CFR Ch. I (1116 Edition)
various sociological effects as a mode of em- chapter, and a description and evaluation of
ployment. the activities of agencies in carrying out the
provisions of this subchapter.
3403. Limitations
(a) An agency shall not abolish any posi- 3408. Employee organization representa-
tion occupied by an employee in order to tion
make the duties of such position available to If an employee organization has been ac-
be performed on a part-time career employ- corded exclusive recognition with respect to
ment basis. a unit within an agency, then the employee
(b) Any person who is employed on a full- organization shall be entitled to represent
time basis in an agency shall not be required all employees within that unit employed on
to accept part-time employment as a condi- a part-time career employment basis..
tion of continued employment.
(b) Subpart B of the table of chapters of
3404. Personnel ceilings part III of the analysis of chapter 33 of title
In administering any personnel ceiling 5, United States Code, is amended by insert-
applicable to an agency (or unit therein), an ing after the item relating to section 3385 the
employee employed by such agency on a following:
part-time career employment basis shall be
counted as a fraction which is determined by SUBCHAPTER VIIPART-TIME CAREER
dividing 40 hours into the average number of EMPLOYMENT OPPORTUNITIES
hours of such employees regularly scheduled Sec.
workweek. This section shall become effec- 3401. Definitions.
tive on October 1, 1980. 3402. Establishment of part-time career
340.101 Nonapplicability employment programs.
3403. Limitations.
(a) If, on the date of enactment of this 3404. Personnel ceilings.
subchapter, there is in effect with respect to 3405. Nonapplicability.
positions within an agency a collective-bar- 3406. Regulations.
gaining agreement which establishes the 3407. Reports.
number of hours of employment a week, then 3408. Employee organization representa-
this subchapter shall not apply to those position.
tions. SEC. 4. (a) Section 8347(g) of title 5, United
(b) This subchapter shall not require part- States Code, is amended by adding at the end
time career employment in positions the thereof the following: However, the Com-
rate of basic pay for which is fixed at a rate mission may not exclude any employee who
equal to or greater than the minimum rate occupies a position on a part-time career em-
fixed for GS16 of the General Schedule. ployment basis (as defined in section 3391(2)
340.101 Regulations of this title)..
Before any regulation is prescribed under (b) Section 8716(b) of such title 5 is amend-
this subchapter, a copy of the proposed regu- ed
lation shall be published in the FEDERAL (1) by striking out of the second sentence
REGISTER and an opportunity provided to in- or part-time;
terested parties to present written comment (2) by striking out or at the end of
and, where practicable, oral comment. Ini- clause (1);
tial regulations shall be prescribed not later (3) by striking out the period at the end of
than 180 days after the date of the enactment clause (2) and inserting in lieu thereof ; or;
of this subchapter. and
(4) by adding at the end thereof the fol-
3407. Reports lowing:
(a) Each agency shall prepare and trans- (3) an employee who is occupying a posi-
mit on a biannual basis a report to the Office tion on a part-time career employment basis
of Personnel Management on its activities (as defined in section 3391(2) of this title)..
under this subchapter, including (c) (1) Section 8913(b) of such title 5 is
(1) details on such agencys progress in amended
meeting part-time career employment goals (A) by striking out or at the end of
established under section 3392 of this title; clause (1);
and (B) by striking out the period at the end of
(2) an explanation of any impediments ex- clause (2) and inserting in lieu thereof ; or;
perienced by such agency in meeting such and
goals or in otherwise carrying out the provi- (C) by adding at the end thereof the fol-
sions of this subchapter, together with a lowing:
statement of the measures taken to over- (3) an employee who is occupying a posi-
come such impediments. tion on a part-time career employment basis
(b) The Commission shall include in its (as defined in section 3391(2) of this title)..
annual report under section 1308 of this title (2) (A) Section 8906(b) of such title 5 is
a statement of its activities under this sub- amended
244
(i) by striking out paragraph (2) in para- ployed on such part-time basis on or
graph (1) and inserting in lieu thereof para- after April 8, 1979.
graphs (2) and (3); and
Tenure group I applies to employees
(ii) by adding at the end thereof the fol-
lowing new paragraph:
in the competitive service under career
(3) In the case of an employee who is oc-
appointments who are not serving pro-
cupying a position on a part-time career em- bation and permanent employees in the
ployment basis (as defined in section 3391 (2) excepted service whose appointments
of this title), the biweekly Government con- carry no restrictions or conditions.
tribution shall be equal to the percentage Tenure group II applies to employees
which bears the same ratio to the percentage in the competitive service serving pro-
determined under this subsection (without
bation, career-conditional employees,
regard to this paragraph) as the average
number of hours of such employees regu- and career employees in obligated posi-
larly scheduled workweek bears to the aver- tions. It also includes employees in the
age number of hours in the regularly sched- excepted service serving trial periods,
uled workweek of an employee serving in a whose tenure is indefinite solely be-
comparable position on a full-time career cause they occupy obligated positions;
basis (as determined under regulations pre- or whose tenure is equivalent to ca-
scribed by the Commission).
reer-conditional in the competitive
(B) The amendments made by subpara-
graph (A) shall not apply with respect to any
service.
employee serving in a position on a part- (b) Agency Exceptions. As an excep-
time career employment basis on the date of tion to the general definition of part-
the enactment of this Act for such period as time employment in 340.202(a) and
the employee continues to serve without a under the authority provided in 5
break in service in that or any other position U.S.C. 3402(a)(3), an agency may permit
on such part-time basis.
an employee who has an appointment
SEC. 5. Each report prepared by an agency
under section 3397(a) of title 5, United States
in tenure group I or II to perform regu-
Code (as added by this Act), shall, to the ex- larly scheduled work of from 1 to 15
tent to which part-time career employment hours per week.
opportunities have been extended by such (c) Mixed Tours of Duty. The provi-
agency during the period covered by such re- sions of this subpart and the term
port to each group referred to in subpara- part-time career employment do not
graphs (A), (B), (C), and (D), of section 2(a)(2)
apply to employees with appointments
of this Act.
in tenure groups I or II who work under
[44 FR 57380, Oct. 5, 1979, as amended at 49 FR mixed tours of duty. For this purpose,
17722, Apr. 25, 1984] a mixed tour of duty consists of annu-
ally recurring periods of full-time,
Subpart BRegulatory Require- part-time, or intermittent service as
mentsPart-Time Employ- long as the employee does not work
ment part-time more than 6 pay periods per
calendar year.
SOURCE: 44 FR 57380, Oct. 5, 1979; 49 FR [44 FR 57380, Oct. 5, 1979, as amended at 49 FR
17722, Apr. 25, 1984, unless otherwise noted. 17722, Apr. 25, 1984; 60 FR 3061, Jan. 13, 1995]
340.201 Regulatory requirements. 340.203 Technical assistance.

This subpart contains the regulations (a) The Office of Personnel Manage-
of the Office of Personnel Management ment shall provide, within available re-
which implement the above sections of sources, consultation and technical ad-
chapter 34 (as set out in 340.101). vice and assistance to agencies to aid
them in expanding career part-time
340.202 General. employment opportunities. This assist-
(a) Definitions. Part-time career em- ance shall include but not be limited
ployment means regularly scheduled to:
work of from 16 to 32 hours per week (1) Help in developing part-time ca-
performed by an employee of an agency reer employment programs;
as defined in 5 U.S.C. 3401 (a) through (2) Information on public and private
(f), who has an appointment in tenure sector part-time employment prac-
group I or II and who becomes em- tices;
245
340.204 5 CFR Ch. I (1116 Edition)
(3) Development of special recruit- which recurs predictably year-to-year.

ment and selection techniques for fill- Consistent with the career nature of
ing part-time positions; the appointments, seasonal employees
(4) Interpretations of part-time em- receive the full benefits authorized to
ployment law, regulations and policy; attract and retain a stable workforce.
(5) Guidance on job sharing and posi- As a result, seasonal employment is ap-
tion restructuring. propriate when the work is expected to
(b) Request for information and as- last at least 6 months during a cal-
sistance should be directed to the Asso- endar year. Recurring work that lasts
ciate Director for Staffing Services, Of- less than 6 months each year is nor-
fice of Personnel Management, 1900 E mally best performed by temporary
Street, NW., Washington, DC 20415, or employees. Seasonal employment may
the nearest OPM regional office. not be used as a substitute for full-time
340.204 Agency reporting. employment or as a buffer for the full-
time workforce.
(a) Agency reports required under 5
(b) Length of the season. Agencies de-
U.S.C. 3407 shall be based on data as of
termine the length of the season, sub-
March 31 and September 30 each year
ject to the condition that it be clearly
and shall be provided to the Office of
tied to nature of the work. The season
Personnel Management no later than
May 15 and November 15 respectively. must be defined as closely as prac-
(b) Each agency shall include with ticable so that an employee will have a
such reports a copy of any agencywide reasonably clear idea of how much
part-time career employment program work he or she can expect during the
regulations and instructions issued year. To minimize the adverse impact
during the 6-month period preceding of seasonal layoffs, an agency may as-
the report date. sign seasonal employees to other work
(c) Reports should be sent to the As- during the projected layoff period.
sociate Director for Staffing Services, While in nonpay status, a seasonal em-
Office of Personnel Management, 1900 E ployee may accept other employment,
Street, NW., Washington, DC 20415. Federal or non-Federal, subject to the
regulations on political activity (part
Subpart C [Reserved] 733 of this title) and on employee re-
sponsibilities and conduct (part 735), as
well as applicable agency policies. Sub-
Subpart DSeasonal and
ject to the limitation on pay from
intermittent Employment more than one position (5 U.S.C. 5533),
a seasonal employee may hold more
SOURCE: 60 FR 3061, Jan. 13, 1995, unless than one appointment.
otherwise noted.
(c) Employment agreement. An employ-
340.401 Definitions. ment agreement must be executed be-
tween the agency and the seasonal em-
(a) Seasonal employment means annu-
ployee prior to the employees entering
ally recurring periods of work of less
on duty. At a minimum, the agreement
than 12 months each year. Seasonal
must inform the employee:
employees are permanent employees
who are placed in nonduty/nonpay sta- (1) That he or she is subject to peri-
tus and recalled to duty in accordance odic release and recall as a condition of
with preestablished conditions of em- employment,
ployment. (2) The minimum and maximum pe-
(b) Intermittent employment means em- riod the employee can expect to work,
ployment without a regularly sched- (3) The basis on which release and re-
uled tour of duty. call procedures will be effected, and
(4) The benefits to which the em-
340.402 Seasonal employment. ployee will be entitled while in a non-
(a) Appropriate use. Seasonal employ- pay status.
ment allows an agency to develop an (d) Release and recall procedures. A

experienced cadre of employees under seasonal employee is released to non-
career appointment to perform work pay status at the end of a season and
246
recalled to duty the next season. Re- 351.303 Identification of positions with a
lease and recall procedures must be es- transferring function.
tablished in advance and uniformly ap-
Subpart DScope of Competition
plied. They may be based on perform-
ance, seniority, veterans preference, 351.401 Determining retention standing.
other appropriate indices, or a com- 351.402 Competitive area.
bination of factors. A seasonal layoff is 351.403 Competitive level.
not subject to the procedures for fur- 351.404 Retention register.
351.405 Demoted employees.
lough prescribed in parts 351 and 752 of
this title. Reduction in force or adverse Subpart ERetention Standing
action procedures, as applicable, are
required for a seasonal layoff that is 351.501 Order of retentioncompetitive
not in accordance with the employ- service.
351.502 Order of retentionexcepted service.
ment agreement, for example, if an 351.503 Length of service.
agency intends to have an employee 351.504 Credit for performance.
work less than the minimum amount 351.505 Records.
of time specified in the employment 351.506 Effective date of retention standing.
agreement. However, an agency may
develop a new employment agreement Subpart FRelease From Competitive
to reflect changing circumstances. Level
(e) Noncompetitive movement. Seasonal 351.601 Order of release from competitive
employees serving under career ap- level.
pointment may move to other posi- 351.602 Prohibitions.
tions in the same way as other regular 351.603 Actions subsequent to release from
career employees. competitive level.
351.604 Use of furlough.
340.403 Intermittent employment. 351.605 Liquidation provisions.
351.606 Mandatory exceptions.
(a) Appropriate use. An intermittent 351.607 Permissive continuing exceptions.
work schedule is appropriate only when 351.608 Permissive temporary exceptions.
the nature of the work is sporadic and
unpredictable so that a tour of duty Subpart GAssignment Rights (Bump and
cannot be regularly scheduled in ad- Retreat)
vance. When an agency is able to 351.701 Assignment involving displacement.
schedule work in advance on a regular 351.702 Qualifications for assignment.
basis, it has an obligation to document 351.703 Exception to qualifications.
the change in work schedule from 351.704 Rights and prohibitions.
intermittent to part-time or full-time 351.705 Administrative assignment.
to ensure proper service credit.
(b) Noncompetitive movement. Inter- Subpart HNotice to Employee
mittent employees serving under ca- 351.801 Notice period.
reer appointment may move to other 351.802 Content of notice.
positions in the same way as other reg- 351.803 Notice of eligibility for reemploy-
ular career employees. ment and other placement assistance.
351.804 Expiration of notice.
351.805 New notice required.
PART 351REDUCTION IN FORCE 351.806 Status during notice period.
351.807 Certification of Expected Separa-
Subpart A [Reserved] tion.
Subpart BGeneral Provisions Subpart IAppeals and Corrective Action

Sec. 351.901 Appeals.
351.201 Use of regulations. 351.902 Correction by agency.
351.202 Coverage.
351.203 Definitions. Subpart J [Reserved]
351.204 Responsibility of agency.
351.205 Authority of OPM. AUTHORITY: 5 U.S.C. 1302, 3502, 3503; sec.
351.801 also issued under E.O. 12828, 58 FR
Subpart CTransfer of Function 2965.
351.301 Applicability. SOURCE: 51 FR 319, Jan. 3, 1986, unless oth-

351.302 Transfer of employees. erwise noted.
247
351.201 5 CFR Ch. I (1116 Edition)
Subpart A [Reserved] under the special plans authorized by

this paragraph.
Subpart BGeneral Provisions 351.202 Coverage.
351.201 Use of regulations. (a) Employees covered. Except as pro-
vided in paragraph (b) of this section,
(a)(1) Each agency is responsible for
this part applies to each civilian em-
determining the categories within
ployee in:
which positions are required, where
they are to be located, and when they (1) The executive branch of the Fed-
are to be filled, abolished, or vacated. eral Government; and
This includes determining when there (2) Those parts of the Federal Gov-
is a surplus of employees at a par- ernment outside the executive branch
ticular location in a particular line of which are subject by statute to com-
work. petitive service requirements or are de-
(2) Each agency shall follow this part termined by the appropriate legislative
when it releases a competing employee or judicial administrative body to be
from his or her competitive level by covered hereunder. Coverage includes
furlough for more than 30 days, separa- administrative law judges except as
tion, demotion, or reassignment requir- modified by part 930 of this chapter.
ing displacement, when the release is (b) Employees excluded. This part does
required because of lack of work; short- not apply to an employee:
age of funds; insufficient personnel (1) In a position in the Senior Execu-
ceiling; reorganization; the exercise of tive Service; or
reemployment rights or restoration (2) Whose appointment is required by
rights; or reclassification of an em- Congress to be confirmed by, or made
ployees position die to erosion of du- with the advice and consent of, the
ties when such action will take effect United States Senate, except a post-
after an agency has formally an- master.
nounced a reduction in force in the em- (c) Actions excluded. This part does
ployees competitive area and when the not apply to:
reduction in force will take effect with- (1) The termination of a temporary
in 180 days. or term promotion or the return of an
(b) This part does not require an employee to the position held before
agency to fill a vacant position. How- the temporary or term promotion or to
ever, when an agency, at its discretion, one of equivalent grade and pay.
chooses to fill a vacancy by an em- (2) A change to lower grade based on
ployee who has been reached for release the reclassification of an employees
from a competitive level for one of the position due to the application of new
reasons in paragraph (a)(2) of this sec- classification standards or the correc-
tion, this part shall be followed. tion of a classification error.
(c) Each agency is responsible for as- (3) A change to lower grade based on
suring that the provisions in this part reclassification of an employees posi-
are uniformly and consistently applied tion due to erosion of duties, except
in any one reduction in force. that this exclusion does not apply to
(d) An agency authorized to admin- such reclassification actions that will
ister foreign national employee pro- take effect after an agency has for-
grams under section 408 of the Foreign mally announced a reduction in force
Service Act of 1980 (22 U.S.C. 3968) may in the employees competitive area and
include special plans for reduction in when the reduction in force will take
force in its foreign national employee effect within 180 days. This exception
programs. In these special plans an ends at the completion of the reduction
agency may give effect to the labor in force.
laws and practices of the locality of (4) The change of an employee from
employment by supplementing the se- regular to substitute in the same pay
lection factors in subparts D and E of level in the U.S. Postal Service field
this part to the extent consistent with service.

the public interest. Subpart I of this (5) The release from a competitive
part does not apply to actions taken level of a National Guard technician
248
under section 709 of title 32, United (3) On record for the most recently
States Code. completed appraisal period prior to the
(6) Placement of an employee serving date of issuance of reduction in force
on an intermittent, part-time, on-call, notices or the cutoff date the agency
or seasonal basis in a nonpay and specifies prior to the issuance of reduc-
nonduty status in accordance with con- tion in force notices after which no
ditions established at time of appoint- new ratings will be put on record.
ment. Rating of record has the meaning
(7) A change in an employees work given that term in 430.203 of this chap-
schedule from other-than-full-time to ter. For an employee not subject to 5
full-time. (A change from full-time to U.S.C. Chapter 43, or part 430 of this
other than full-time for a reason cov- chapter, it means the officially des-
ered in 351.201(A)(2) is covered by this ignated performance rating, as pro-
part.) vided for in the agencys appraisal sys-
tem, that is considered to be an equiva-
[51 FR 319, Jan. 3, 1986, as amended at 60 FR
lent rating of record under the provi-
3062, Jan. 13, 1995]
sions of 430.201(c) of this chapter.
351.203 Definitions. Reorganization means the planned
elimination, addition, or redistribution
In this part: of functions or duties in an organiza-
Competing employee means an em- tion.
ployee in tenure group I, II, or III. Representative rate means:
Current rating of record is the rating (1) The fourth step of the grade for a
of record for the most recently composition covered by the General Sched-
pleted appraisal period as provided in ule, using the locality rate authorized
351.504(b)(3). by 5 U.S.C. 5304 and subpart F of part
Days means calendar days. 531 of this chapter for General Schedule
Function means all or a clearly iden- positions;
tifiable segment of an agencys mission (2) The prevailing rate for a position
(including all integral parts of that covered by a wage-board or similar
mission), regardless of how it is per- wage-determining procedure, such as
formed. provided in the definition of represent-
Furlough under this part means the ative rate for Federal Wage System po-
placement of an employee in a tem- sitions in 5 CFR 532.401 of this chapter;
porary nonduty and nonpay status for (3) For positions in a pay band, the
more than 30 consecutive calendar rate (or rates) the agency designates as
days, or more than 22 workdays if done representative of that pay band or
on a discontinuous basis, but not more competitive levels within the pay band,
than 1 year. including (as appropriate) any applica-
Local commuting area means the geo- ble locality payment authorized by 5
graphic area that usually constitutes U.S.C. 5304 and subpart F of part 531 of
one area for employment purposes. It this chapter (or equivalent payment
includes any population center (or two under other legal authority); and
or more neighboring ones) and the sur- (4) For other positions (e.g., positions
rounding localities in which people live in an unclassified pay system), the rate
and can reasonably be expected to trav- the agency designates as representa-
el back and forth daily to their usual tive of the position, including (as ap-
employment. propriate) any applicable locality pay-
Modal rating is the summary rating ment authorized by subpart F of part
level assigned most frequently among 531 (or equivalent payment under other
the actual ratings of record that are: legal authority).
(1) Assigned under the summary level Transfer of function means the trans-
pattern that applies to the employees fer of the performance of a continuing
position of record on the date of the re- function from one competitive area
duction in force; and its addition to one or more other
(2) Given within the same competi- competitive areas, except when the
tive area, or at the agencys option function involved is virtually identical

within a larger subdivision of the agen- to functions already being performed in
cy or agencywide; and the other competitive area(s) affected;
249
351.204 5 CFR Ch. I (1116 Edition)
or the movement of the competitive 351.301 Applicability.

area in which the function is performed (a) This subpart is applicable when
to another commuting area. the work of one or more employees is
Undue interruption means a degree of moved from one competitive area to
interruption that would prevent the another as a transfer of function re-
completion of required work by the em- gardless of whether or not the move-
ployee 90 days after the employee has ment is made under authority of a
been placed in a different position statute, Executive order, reorganiza-
under this part. The 90-day standard tion plan, or other authority.
should be considered within the allow- (b) In a transfer of function, the func-
able limits of time and quality, taking tion must cease in the losing competi-
into account the pressures of priorities, tive area and continue in an identical
deadlines, and other demands. How- form in the gaining competitive area
ever, a work program would generally (i.e., in the gaining competitive area,
not be unduly interrupted even if an the function continues to be carried
employee needed more than 90 days out by competing employees rather
after the reduction in force to perform than by noncompeting employees).
the optimum quality or quantity of [52 FR 10024, Mar. 30, 1987, as amended at 60
work. The 90-day standard may be ex- FR 3062, Jan. 13, 1995]
tended if placement is made under this
part to a low priority program or to a 351.302 Transfer of employees.
vacant position. (a) Before a reduction in force is
made in connection with the transfer
of any or all of the functions of a com-
65533, Dec. 15, 1993; 60 FR 3062, Jan. 13, 1995;
62 FR 62500, Nov. 24, 1997; 73 FR 29388, May 21,
petitive area to another continuing
2008] competitive area, each competing em-
ployee in a position identified with the
351.204 Responsibility of agency. transferring function or functions shall
be transferred to the continuing com-
Each agency covered by this part is petitive area without any change in
responsible for following and applying the tenure of his or her employment.
the regulations in this part when the (b) An employee whose position is
agency determines that a reduction transferred under this subpart solely
force is necessary. for liquidation, and who is not identi-
fied with an operating function specifi-
351.205 Authority of OPM. cally authorized at the time of transfer
The Office of Personnel Management to continue in operation more than 60
may establish further guidance and in- days, is not a competing employee for
structions for the planning, prepara- other positions in the competitive area
tion, conduct, and review of reductions gaining the function.
in force. OPM may examine an agen- (c) Regardless of an employees per-
cys preparations for reduction in force sonal preference, an employee has no
at any stage. When OPM finds that an right to transfer with his or her func-
agencys preparations are contrary to tion, unless the alternative in the com-
the express provisions or to the spirit petitive area losing the function is sep-
aration or demotion.
and intent of these regulations or that
(d) Except as permitted in paragraph
they would result in violation of em-
(e) of this section, the losing competi-
ployee rights or equities, OPM may re- tive area must use the adverse action
quire appropriate corrective action. procedures found in 5 CFR part 752 if it
[51 FR 319, Jan. 3, 1986, as amended at 66 FR chooses to separate an employee who
66710, Dec. 27, 2001] declines to transfer with his or her
function.
Subpart CTransfer of Function (e) The losing competitive area may,
at its discretion, include employees
who decline to transfer with their func-

SOURCE: 52 FR 10024, Mar. 30, 1987, unless tion as part of a concurrent reduction
otherwise noted. in force.
250
(f) An agency may not separate an official position description by the use
employee who declines to transfer with of appropriate records (e.g., work re-
the function any sooner than it trans- ports, organizational time logs, work
fers employees who chose to transfer schedules, etc.).
with the function to the gaining com- (d) Identification Method Two is ap-
petitive area. plicable to employees who perform the
(g) Agencies may ask employees in a function during less than half of their
canvass letter whether the employee work time and are not otherwise cov-
wishes to transfer with the function ered by Identification Method One.
when the function transfers to a dif- Under Identification Method Two, the
ferent local commuting area. The can- losing competitive area must identify
vass letter must give the employee in- the number of positions it needed to
formation concerning entitlements perform the transferring function. To
available to the employee if the em- determine which employees are identi-
ployee accepts the offer to transfer, fied for transfer, the losing competitive
and if the employee declines the offer area must establish a retention reg-
to transfer. An employee may later ister in accordance with this part that
change and initial acceptance offer includes the name of each competing
without penalty. However, an employee employee who performed the function.
may not later change an initial dec- Competing employees listed on the re-
lination of the offer to transfer. tention register are identified for
[52 FR 10024, Mar. 30, 1987, as amended at 60 transfer in the inverse order of their
FR 3062, Jan. 13, 1995] retention standing. If for any retention
register this procedure would result in
351.303 Identification of positions the separation or demotion by reduc-
with a transferring function.
tion in force at the losing competitive
(a) The competitive area losing the area of any employee with higher re-
function is responsible for identifying tention standing, the losing competi-
the positions of competing employees tive area must identify competing em-
with the transferring function. A com- ployees on that register for transfer in
peting employee is identified with the the order of their retention standing.
transferring function on the basis of (e)(1) The competitive area losing the
the employees official position. Two function may permit other employees
methods are provided to identify em- to volunteer for transfer with the func-
ployees with the transferring function: tion in place of employees identified
(1) Identification Method One; and under Identification Method One or
(2) Identification Method Two. Identification Method Two. However,
(b) Identification Method One must the competitive area may permit these
be used to identify each position to other employees to volunteer for trans-
which it is applicable. Identification fer only if no competing employee who
Method Two is used only to identify is identified for transfer under Identi-
positions to which Identification Meth- fication Method One or Identification
od One is not applicable. Method Two is separated or demoted
(c) Under Identification Method One, solely because a volunteer transferred
a competing employee is identified in place of him or her to the competi-
with a transferring function if tive area that is gaining the function.
(1) The employee performs the func-
(2) If the total number of employees
tion during at least half of his or her
who volunteer for transfer exceeds the
work time; or
total number of employees required to
(2) Regardless of the amount of time
perform the function in the competi-
the employee performs the function
tive area that is gaining the function,
during his or her work time, the func-
the losing competitive area may give
tion performed by the employee in-
preference to the volunteers with the
cludes the duties controlling his or her
highest retention standing, or make se-
grade or rate of pay.
(3) In determining what percentage of lections based on other appropriate cri-
teria.
time an employee performs a function

in the employees official position, the [52 FR 10024, Mar. 30, 1987, as amended at 60
agency may supplement the employees FR 3062, Jan. 13, 1995]
251
351.401 5 CFR Ch. I (1116 Edition)
Subpart DScope of Competition 351.403 Competitive level.

(a)(1) Each agency shall establish
351.401 Determining retention stand-
ing. competitive levels consisting of all po-
sitions in a competitive area which are
Each agency shall determine the rein the same grade (or occupational
tention standing of each competing level) and classification series, and
employee on the basis of the factors in which are similar enough in duties,
this subpart and in subpart E of this qualification requirements, pay sched-
part. ules, and working conditions so that an
351.402 Competitive area. agency may reassign the incumbent of
one position to any of the other posi-
(a) Each agency shall establish com- tions in the level without undue inter-
petitive areas in which employees com- ruption.
pete for retention under this part. (2)(i) Except as provided in paragraph
(b) A competitive area must be de-
(a)(2)(ii) of this section for pay band
fined solely in terms of the agencys or-
positions, competitive level determina-
ganizational unit(s) and geographical
tions are based on each employees offi-
location and, except as provided in
cial position of record (including the
paragraph (e) of this section, it must
official position description), not the
include all employees within the com-
employees personal qualifications.
petitive area so defined. A competitive
area may consist of all or part of an (ii) To establish a competitive level
agency. The minimum competitive comprised of pay band positions, an
area is a subdivision of the agency agency may supplement an employees
under separate administration within official position of record with other
the local commuting area. applicable records that document the
(c) When a competitive area will be employees actual duties and respon-
in effect less than 90 days prior to the sibilities.
effective date of a reduction in force, a (3) Sex may not be the basis for a
description of the competitive area competitive level determination, ex-
shall be submitted to the OPM for ap- cept for a position OPM designates
proval in advance of the reduction in that certification of eligibles by sex is
force. Descriptions of all competitive justified.
areas must be made readily available (4) A probationary period required by
for review. subpart I of part 315 of this chapter for
(d) Each agency shall establish a sep- initial appointment to a supervisory or
arate competitive area for each Inspec- managerial position is not a basis for
tor General activity established under establishing a separate competitive
authority of the Inspector General Act level.
of 1978, Public Law 95452, as amended, (5) If a competitive area includes po-
in which only employees of that office sitions in one or more pay bands, each
shall compete for retention under this set of interchangeable positions in the
part. pay band under paragraphs (a)(1)
(e) When an agency finds that a com- through (4) of this section is a separate
petitive area defined under paragraph competitive level (e.g., with inter-
(b) of this section includes pay band po- changeable positions under paragraphs
sitions and positions not covered by a (a)(1) through (4) of this section, each
pay band, the agency may, at its dis- pay band is one competitive level; if
cretion, define a separate (and addi- the positions are not interchangeable
tional) competitive area, otherwise under paragraphs (a)(1) through (4) of
consistent with paragraph (b) of this this section, the pay band may include
section, to include only pay band posi- multiple competitive levels).
tions. The original competitive area (b) Each agency shall establish sepa-
would then include only the remaining rate competitive levels according to
positions (i.e., those positions not cov- the following categories:
ered by a pay band). (1) By service. Separate levels shall be
[51 FR 319 Jan. 3, 1986, as amended at 56 FR established for positions in the com-
65416, Dec. 17, 1991; 62 FR 62500, Nov. 24, 1997; petitive service and in the excepted
73 FR 46532, Aug. 11, 2008] service.
252
(2) By appointment authority. Separate under this part, the agency shall estab-
levels shall be established for excepted lish a separate retention register for
service positions filled under different that competitive level. The retention
appointment authorities. register is prepared from the current
(3) By pay schedule. Separate levels retention records of employees. Upon
shall be established for positions under displacing another employee under this
different pay schedules. part, an employee retains the same sta-
(4) By work schedule. Separate levels tus and tenure in the new position. Ex-
shall be established for positions filled cept for an employee on military duty
on a full-time, part-time, intermittent, with a restoration right, the agency
seasonal, or on-call basis. No distinc- shall enter on the retention register, in
tion may be made among employees in the order of retention standing, the
the competitive level on the basis of name of each competing employee who
the number of hours or weeks sched- is:
uled to be worked. (1) In the competitive level;
(5) By trainee status. Separate levels (2) Temporarily promoted from the
shall be established for positions filled competitive level by temporary or
by an employee in a formally des- term promotion; or
ignated trainee or developmental pro- (3) Detailed from the competitive
gram having all of the characteristics level under 5 U.S.C. 3341 or other appro-
covered in 351.702(e)(1) through (e)(4) priate authority.
of this part. (b)(1) The name of each employee
(c) An agency may not establish a serving under a time limited appoint-
competitive level based solely upon: ment or promotion to a position in a
(1) A difference in the number of competitive level shall be entered on a
hours or weeks scheduled to be worked list apart from the retention register
by other-than-full-time employees who for that competitive level, along with
would otherwise be in the same com- the expiration date of the action.
petitive level; (2) The agency shall list, at the bot-
(2) A requirement to work changing tom of the list prepared under para-
shifts; graph (b)(1) of this section, the name of
(3) The grade promotion potential of each employee in the competitive level
the position; or with a written decision of removal
(4) A difference in the local wage under part 432 or 752 of this chapter.
areas when a competitive area includes
positions covered by more than one 62500, Nov. 24, 1997]
wage-board or similar wage-deter-
mining procedure; 351.405 Demoted employees.
(5) A difference in locality payments
An employee who has received a writ-
under 5 U.S.C. 5304 and subpart F of
ten decision under part 432 or 752 of
part 531 of this chapter when a com-
this chapter to demote him or her com-
petitive level includes more than one
petes under this part from the position
locality pay area listed in 531.603 of
to which he or she will be or has been
this chapter; or
demoted.
(6) Representative rates in different
local commuting areas when a com- [62 FR 62500, Nov. 24, 1997]
petitive area includes General Sched-
ule (GS) and Federal Wage System Subpart ERetention Standing
(FWS) positions in multiple GS local-
ity pay areas, and/or FWS local wage 351.501 Order of retentioncompeti-
areas. tive service.
[51 FR 319, Jan. 3, 1986, as amended at 60 FR (a) Competing employees shall be
3062, Jan. 13, 1995; 62 FR 62500, Nov. 24, 1997; classified on a retention register on the
73 FR 29388, May 21, 2008; 73 FR 46532, Aug. 11, basis of their tenure of employment,
2008] veteran preference, length of service,
and performance in descending order as
351.404 Retention register.
follows:
(a) When a competing employee is to (1) By tenure group I, group II, group
be released from a competitive level III; and
253
351.501 5 CFR Ch. I (1116 Edition)
(2) Within each group by veteran cluding cases under Executive Order
preference subgroup AD, subgroup A, 10826 to correct certain administrative
subgroup B; and errors).
(3) Within each subgroup by years of (3) Group III includes all employees
service as augmented by credit for per- serving under indefinite appointments,
formance under 351.504, beginning temporary appointments pending es-
with the earliest service date. tablishment of a register, status quo
(b) Groups are defined as follows: appointments, term appointments, and
(1) Group I includes each career em- any other nonstatus nontemporary ap-
ployee who is not serving a proba- pointments which meet the definition
tionary period. (A supervisory or man- of provisional appointments contained
agerial employee serving a proba- in 316.401 and 316.403 of this chapter.
tionary period required by subpart I of (c) Subgroups are defined as follows:
part 315 of this title is in group I if the (1) Subgroup AD includes each pref-
employee is otherwise eligible to be in- erence eligible employee who has a
cluded in this group.) The following compensable service-connected dis-
employees are in group I as soon as the ability of 30 percent or more.
employee completes any required pro- (2) Subgroup A includes each pref-
bationary period for initial appoint- erence eligible employee not included
ment: in subgroup AD.
(i) An employee for whom substantial (3) Subgroup B includes each non-
evidence exists of eligibility to imme- preference eligible employee.
diately acquire status and career ten-
(d) A retired member of a uniformed
ure, and whose case is pending final
service is considered a preference eligi-
resolution by OPM (including cases
ble under this part only if the member
under Executive Order 10826 to correct
meets at least one of the conditions of
certain administrative errors);
the following paragraphs (d)(1), (2), or
(ii) An employee who acquires com-
(3) of this section, except as limited by
petitive status and satisfies the service
paragraph (d)(4) or (d)(5):
requirement for career tenure when the
employees position is brought into the (1) The employees military retire-
competitive service; ment is based on disability that either:
(iii) An administrative law judge; (i) Resulted from injury or disease re-
(iv) An employee appointed under 5 ceived in the line of duty as a direct re-
U.S.C. 3104, which provides for the em- sult of armed conflict; or
ployment of specially qualified sci- (ii) Was caused by an instrumentality
entific or professional personnel, or a of war incurred in the line of duty dur-
similar authority; and ing a period of war as defined by sec-
(v) An employee who acquires status tions 101 and 301 of title 38, United
under 5 U.S.C. 3304(c) on transfer to the States Code.
competitive service from the legisla- (2) The employees retired pay from a
tive or judicial branches of the Federal uniformed service is not based upon 20
Government. or more years of full-time active serv-
(2) Group II includes each career-con- ice, regardless of when performed but
ditional employee, and each employee not including periods of active duty for
serving a probationary period under training.
subpart H of part 315 of this chapter. (A (3) The employee has been continu-
supervisory or managerial employee ously employed in a position covered
serving a probationary period required by this part since November 30, 1964,
by subpart I of part 315 of this title is without a break in service of more
in group II if the employee has not than 30 days.
completed a probationary period under (4) An employee retired at the rank
subpart H of part 315 of this title.) of major or above (or equivalent) is
Group II also includes an employee considered a preference eligible under
when substantial evidence exists of the this part if such employee is a disabled
employees eligibility to immediately veteran as defined in section 2108(2) of
acquire status and career-conditional title 5, United States Code, and meets
tenure, and the employees case is one of the conditions covered in para-
pending final resolution by OPM (in- graph (d)(1), (2), or (3) of this section.
254
(5) An employee who is eligible for statute as creditable for retention pur-
retired pay under chapter 67 of title 10, poses.
United States Code, and who retired at (b)(1) As authorized by 5 U.S.C.
the rank of major or above (or equiva- 3502(a)(A), all active duty in a uni-
lent) is considered a preference eligible formed service, as defined in 5 U.S.C.
under this part at age 60, only if such 2101(3), is creditable for purposes of this
employee is a disabled veteran as depart, except as provided in paragraphs
fined in section 2108(2) of title 5, United (b)(2) and (b)(3) of this section.
States Code. (2) As authorized by 5 U.S.C.
[51 FR 319, Jan. 3, 1986, as amended at 56 FR 3502(a)(B), a retired member of a uni-
10142, Mar. 11, 1991; 60 FR 3062, Jan. 13, 1995; formed service who is covered by
62 FR 62500, Nov. 24, 1997] 351.501(d) is entitled to credit under
this part only for:
351.502 Order of retentionexcepted (i) The length of time in active serv-
service. ice in the Armed Forces during a war,
(a) Competing employees shall be or in a campaign or expedition for
classified on a retention register in which a campaign or expedition badge
tenure groups on the basis of their ten- has been authorized; or
ure of employment, veteran preference, (ii) The total length of time in active
length of service, and performance in service in the Armed Forces if the em-
descending order as set forth under ployee is considered a preference eligi-
351.501(a) for competing employees in ble under 5 U.S.C. 2108 and 5 U.S.C.
the competitive service. 3501(a), as implemented in 351.501(d).
(b) Groups are defined as follows: (3) An employee may not receive dual
(1) Group I includes each permanent service credit for purposes of this part
employee whose appointment carries for service performed on active duty in
no restriction or condition such as con- the Armed Forces that was performed
ditional, indefinite, specific time limit, during concurrent civilian employment
or trial period. as a Federal employee, as defined in 5
(2) Group II includes each employee: U.S.C. 2105(a).
(i) Serving a trial period; or (c)(1) The agency is responsible for
(ii) Whose tenure is equivalent to a establishing both the service computa-
career-conditional appointment in the tion date, and the adjusted service
competitive service in agencies having computation date, applicable to each
such excepted appointments. employee competing for retention
(3) Group III includes each employee: under this part. If applicable, the agen-
(i) Whose tenure is indefinite (i.e., cy is also responsible for adjusting the
without specific time limit), but not service computation date and the ad-
actually or potentially permanent; justed service computation date to
(ii) Whose appointment has a specific withhold retention service credit for
time limitation of more than 1 year; or noncreditable service.
(iii) Who is currently employed under (2) The service computation date in-
a temporary appointment limited to 1 cludes all actual creditable service
year or less, but who has completed 1 under paragraph (a) and paragraph (b)
year of current continuous service of this section.
under a temporary appointment with (3) The adjusted service computation
no break in service of 1 workday or date includes all actual creditable serv-
more. ice under paragraph (a) and paragraph
[60 FR 3063, Jan. 13, 1995] (b) of this section, and additional re-
tention service credit for performance
351.503 Length of service. authorized by 351.504 (d) and (e).
(a) All civilian service as a Federal (d) The service computation date is
employee, as defined in 5 U.S.C. 2105(a), computed on the following basis:
is creditable for purposes of this part. (1) The effective date of appointment
Civilian service performed in employ- as a Federal employee under 5 U.S.C.
ment that does not meet the definition 2105(a) when the employee has no pre-
of Federal employee set forth in 5 U.S.C. vious creditable service under para-
2105(a) is creditable for purposes of this graph (a) or (b) of this section; or if ap-
part only if specifically authorized by plicable,
255
351.504 5 CFR Ch. I (1116 Edition)
(2) The date calculated by sub- except as otherwise provided in para-

tracting the employees total previous graphs (b)(2) and (c) of this section.
creditable service under paragraph (a) (2) To provide adequate time to de-
or (b) of this section from the most re- termine employee retention standing,
cent effective date of appointment as a an agency may provide for a cutoff
Federal employee under 5 U.S.C. date, a specified number of days prior
2105(a). to the issuance of reduction in force
(e) The adjusted service computation notices after which no new ratings of
date is calculated by subtracting from record will be put on record and used
the date in paragraph (d)(1) or (d)(2) of for purposes of this subpart. When a
this section the additional service cutoff date is used, an employee will
credit for retention authorized by receive performance credit for the
351.504(d) and (e). three most recent ratings of record re-
[64 FR 16800, Apr. 7, 1999; 64 FR 23531, May 3, ceived during the 4-year period prior to
1999] the cutoff date.
(3) To be creditable for purposes of
351.504 Credit for performance. this subpart, a rating of record must
NOTE TO 351.504: Compliance dates: Sub- have been issued to the employee, with
ject to the requirements of 5 U.S.C. Section all appropriate reviews and signatures,
7116(a)(7), agencies may implement revised and must also be on record (i.e., the
351.504 at any time between December 24, rating of record is available for use by
1997 and October 1, 1998. For reduction in the office responsible for establishing
force actions effective between December 24,
retention registers).
1997 and September 30, 1998, agencies may
use either 351.504 effective December 24, (4) The awarding of additional reten-
1997, or the prior 351.504 in 5 CFR part 351 tion service credit based on perform-
(January 1, 1997 edition). ance for purposes of this subpart must
be uniformly and consistently applied
(a) Ratings used. (1) Only ratings of
record as defined in 351.203 shall be within a competitive area, and must be
used as the basis for granting addi- consistent with the agencys appro-
tional retention service credit in a re- priate issuance(s) that implement
duction in force. these policies. Each agency must speci-
(2) For employees who received rat- fy in its appropriate issuance(s):
ings of record while covered by part (i) The conditions under which a rat-
430, subpart B, of this chapter, those ing of record is considered to have been
ratings of record shall be used to grant received for purposes of determining
additional retention service credit in a whether it is within the 4-year period
reduction in force. prior to either the date the agency
(3) For employees who received per- issues reduction in force notices or the
formance ratings while not covered by agency-established cutoff date for rat-
the provisions of 5 U.S.C. Chapter 43 ings of record, as appropriate; and
and part 430, subpart B, of this chapter, (ii) If the agency elects to use a cut-
those performance ratings shall be con- off date, the number of days prior to
sidered ratings of record for granting the issuance of reduction in force no-
additional retention service credit in a tices after which no new ratings of
reduction in force only when it is de- record will be put on record and used
termined that those performance rat- for purposes of this subpart.
ings are equivalent ratings of record (c) Missing ratings. Additional reten-
under the provisions of 430.201(c) of tion service credit for employees who
this chapter. The agency conducting do not have three actual ratings of
the reduction in force shall make that record during the 4-year period prior to
determination. the date of issuance of reduction in
(b)(1) An employees entitlement to force notices or the 4-year period prior
additional retention service credit for to the agency-established cutoff date
performance under this subpart shall for ratings of record permitted in para-
be based on the employees three most graph (b)(2) of this section shall be de-
recent ratings of record received during termined under paragraphs (d) or (e) of
the 4-year period prior to the date of this section, as appropriate, and as fol-
issuance of reduction in force notices, lows:
256
(1) An employee who has not received ice credit for performance to employ-
any rating of record during the 4-year ees expressed in additional years of
period shall receive credit for perform- service in accordance with the fol-
ance based on the modal rating for the lowing:
summary level pattern that applies to (1) Additional years of service shall
the employees official position of consist of the mathematical average
record at the time of the reduction in (rounded in the case of a fraction to
force. the next higher whole number) of the
(2) An employee who has received at additional retention service credit that
least one but fewer than three previous the agency established for the sum-
ratings of record during the 4-year pe-
mary levels of the employees applica-
riod shall receive credit for perform-
ble rating(s) of record.
ance on the basis of the value of the ac-
tual rating(s) of record divided by the (2) The agency shall establish the
number of actual ratings received. If an amount of additional retention service
employee has received only two actual credit provided for summary levels
ratings of record during the period, the only in full years; the agency shall not
value of the ratings is added together establish additional retention service
and divided by two (and rounded in the credit for summary levels below Level
case of a fraction to the next higher 3 (Fully Successful or equivalent).
whole number) to determine the (3) When establishing additional re-
amount of additional retention service tention service credit for the summary
credit. If an employee has received levels at Level 3 (Fully Successful or
only one actual rating of record during equivalent) and above, the agency shall
the period, its value is the amount of establish at least 12 years, and no more
additional retention service credit pro- than 20 years, additional retention
vided. service credit for a summary level.
(d) Single rating pattern. If all employ- (4) The agency may establish the
ees in a reduction in force competitive same number of years additional reten-
area have received ratings of record tion service credit for more than one
under a single pattern of summary lev- summary level.
els as set forth in 430.208(d) of this
(5) The agency shall establish the
chapter, the additional retention serv-
same number of years additional reten-
ice credit provided to employees shall
be expressed in additional years of tion service credit for all ratings of
service and shall consist of the mathe- record with the same summary level in
matical average (rounded in the case of the same pattern of summary levels as
a fraction to the next higher whole set forth in 430.208(d) of this chapter.
number) of the employees applicable (6) The agency may establish a dif-
ratings of record, under paragraphs ferent number of years additional re-
(b)(1) and (c) of this section computed tention service credit for the same
on the following basis: summary level in different patterns.
(1) Twenty additional years of service (7) In implementing paragraph (e) of
for each rating of record with a Level 5 this section, the agency shall specify
(Outstanding or equivalent) summary; the number(s) of years additional re-
(2) Sixteen additional years of service tention service credit that it will es-
for each rating of record with a Level 4 tablish for summary levels. This infor-
summary; and mation shall be made readily available
(3) Twelve additional years of service for review.
for each rating of record with a Level 3 (8) The agency may apply paragraph
(Fully Successful or equivalent) sum- (e) of this section only to ratings of
mary. record put on record on or after Octo-
(e) Multiple rating patterns. If an agen- ber 1, 1997. The agency shall establish
cy has employees in a competitive area the additional retention service credit
who have ratings of record under more for ratings of record put on record
than one pattern of summary levels, as prior to that date in accordance with
set forth in 430.208(d) of this chapter,

paragraph (d) of this section.
it shall consider the mix of patterns
and provide additional retention serv- [62 FR 62501, Nov. 24, 1997]
257
351.505 5 CFR Ch. I (1116 Edition)
351.505 Records. (f) The agency must preserve all reg-

isters and records relating to a reduc-
(a) The agency is responsible for
tion in force for at least 1 year after
maintaining correct personnel records
the date it issues a specific reduction
that are used to determine the reten-
in force notice.
tion standing of its employees com-
peting for retention under this part. [64 FR 16800, Apr. 7, 1999]
(b) The agency must allow its reten-
tion registers and related records to be 351.506 Effective date of retention
inspected by: standing.
(1) An employee of the agency who Except for applying the performance
has received a specific reduction in factor as provided in 351.504:
force notice, and/or the employees rep- (a) The retention standing of each
resentative if the representative is act- employee released from a competitive
ing on behalf of the individual em- level in the order prescribed in 351.601
ployee; and is determined as of the date the em-
(2) An authorized representative of ployee is so released.
OPM. (b) The retention standing of each
(c) An employee who has received a employee retained in a competitive
specific notice of reduction in force level as an exception under 351.606(b),
under authority of subpart H of this 351.607, or 351.608, is determined as of
part has the right to review any com- the date the employee would have been
pleted records used by the agency in a released had the exception not been
reduction in force action that was used. The retention standing of each
taken, or will be taken, against the employee retained under any of these
employee, including: provisions remains fixed until comple-
(1) The complete retention register tion of the reduction in force action
with the released employees name and which resulted in the temporary reten-
other relevant retention information tion.
(including the names of all other em- (c) When an agency discovers an
ployees listed on that register, their in- error in the determination of an em-
dividual service computation dates cal- ployees retention standing, it shall
culated under 351.503(d), and their ad- correct the error and adjust any erro-
justed service computation dates cal- neous reduction-in-force action to ac-
culated under 351.503(e)) so that the cord with the employees proper reten-
employee may consider how the agency tion standing as of the effective date
constructed the competitive level, and established by this section.
how the agency determined the rel-
ative retention standing of the com- [51 FR 319, Jan. 3, 1986, as amended at 60 FR
3063, Jan. 13, 1995; 62 FR 10682, Mar. 10, 1997]
peting employees; and
(2) The complete retention registers
for other positions that could affect Subpart FRelease From
the composition of the employees Competitive Level
competitive level, and/or the deter-
mination of the employees assignment 351.601 Order of release from com-
rights (e.g., registers to which the re- petitive level.
leased employee may have potential (a) Each agency must select com-
assignment rights under 351.701(b) and peting employees for release from a
(c)). competitive level (including release
(d) An employee who has not received from a competitive level involving a
a specific reduction in force notice has pay band) under this part in the in-
no right to review the agencys reten- verse order of retention standing, be-
tion registers and related records. ginning with the employee with the
(e) The agency is responsible for en- lowest retention standing on the reten-
suring that each employees access to tion register. An agency may not re-
retention records is consistent with lease a competing employee from a
both the Freedom of Information Act (5 competitive level while retaining in

U.S.C. 552), and the Privacy Act (5 that level an employee with lower re-
U.S.C. 552a). tention standing except:
258
(1) As required under 351.606 when an (b) An agency may not separate a
employee is retained under a manda- competing employee under this part
tory exception or under 351.806 when while an employee with lower reten-
an employee is entitled to a new writ- tion standing in the same competitive
ten notice of reduction in force; or level is on furlough.
(2) As permitted under 351.607 when (c) An agency may not furlough a
an employee is retained under a per- competing employee for more than 1
missive continuing exception or under year.
351.608 when an employee is retained (d) When an agency recalls employees
under a permissive temporary excep- to duty in the competitive level from
tion. which furloughed, it shall recall them
(b) At its option an agency may pro- in the order of their retention stand-
vide for intervening displacement with- ing, beginning with highest standing
in the competitive level before final re- employee.
lease of the employee with the lowest-
retention standing from the competi- 351.605 Liquidation provisions.
tive level. When an agency will abolish all posi-
(c) When employees in the same re- tions in a competitive area within 180
tention subgroup have identical service days, it must release employees in
dates and are tied for release from a group and subgroup order consistent
competitive level, the agency may se- with 351.601(a). At its discretion, the
lect any tied employee for release. agency may release the employees in
[73 FR 29388, May 21, 2008] group order without regard to reten-
tion standing within a subgroup, ex-
351.602 Prohibitions. cept as provided in 351.606. When an
An agency may not release a com- agency releases an employee under this
peting employee from a competitive section, the notice to the employee
level while retaining in that level an must cite this authority and give the
employee with: date the liquidation will be completed.
(a) A specifically limited temporary An agency may also apply 351.607 and
appointment; 351.608 in a liquidation.
(b) A specifically limited temporary [60 FR 2678, Jan. 11, 1995]
or term promotion;
(c) A written decision under part 432 351.606 Mandatory exceptions.
or 752 of this chapter of removal or de- (a) Armed Forces restoration rights.
motion from the competitive level. When an agency applies 351.601 or
[51 FR 319, Jan. 3, 1986, as amended at 62 FR 351.605, it shall give retention prior-
62502, Nov. 24, 1997] ities over other employees in the same
subgroup to each group I or II em-
351.603 Actions subsequent to release ployee entitled under 38 U.S.C. 2021 or
from competitive level. 2024 to retention for, as applicable, 6
An employee reached for release from months or 1 year after restoration, as
a competitive level shall be offered as- provided in part 353 of this chapter.
signment to another position in ac- (b) Use of annual leave to reach initial
cordance with subpart G of this part. If eligibility for retirement or continuance of
the employee accepts, the employee health benefits. (1) An agency shall
shall be assigned to the position of- make a temporary exception under this
fered. If the employee has no assign- section to retain an employee who is
ment right or does not accept an offer being involuntarily separated under
under subpart G, the employee shall be this part, and who elects to use annual
furloughed or separated. leave to remain on the agencys rolls
after the effective date the employee
351.604 Use of furlough. would otherwise have been separated
(a) An agency may furlough a com- by reduction in force, in order to estab-
peting employee only when it intends lish initial eligibility for immediate re-
within 1 year to recall the employee to tirement under 5 U.S.C. 8336, 8412, or
duty in the position from which fur- 8414, and/or to establish initial eligi-
loughed. bility under 5 U.S.C. 8905 to continue
259
351.607 5 CFR Ch. I (1116 Edition)
health benefits coverage into retire- notify in writing each higher-standing

ment. employee reached for release from the
(2) An agency shall make a tem- same competitive level of the reasons
porary exception under this section to for the exception.
retain an employee who is being invol-
untarily separated under authority of 351.608 Permissive temporary excep-
part 752 of this chapter because of the tions.
employees decision to decline reloca- (a) General. (1) In accordance with
tion (including transfer of function), this section, an agency may make a
and who elects to use annual leave to temporary exception to the order of re-
remain on the agencys rolls after the lease in 351.601, and to the action pro-
effective date the employee would oth- visions of 351.603, when needed to re-
erwise have been separated by adverse tain an employee after the effective
action, in order to establish initial eli- date of a reduction in force. Except as
gibility for immediate retirement otherwise provided in paragraphs (c)
under 5 U.S.C. 8336, 8412, or 8414, and/or and (e) of this section, an agency may
to establish initial eligibility under 5 not make a temporary exception for
U.S.C. 8905 to continue health benefits more than 90 days.
coverage into retirement. (2) After the effective date of a reduc-
(3) An employee retained under para- tion in force action, an agency may not
graph (b) by this section must be cov- amend or cancel the reduction in force
ered by chapter 63 of title 5, United notice of an employee retained under a
States Code. temporary exception so as to avoid
(4) An agency may not retain an em- completion of the reduction in force
ployee under paragraph (b) of this sec- action. This does not preclude the em-
tion past the date that the employee ployee from receiving or accepting a
first becomes eligible for immediate re- job offer in the same competitive area
tirement, or for continuation of health in accordance with a Reemployment
benefits into retirement, except that Priority List established under part
an employee may be retained long 330, subpart B, of this chapter, or under
enough to satisfy both retirement and a Career Transition Assistance Plan es-
health benefits requirements. tablished under part 330, subpart E, of
(5) Except as permitted by 5 CFR this chapter, or equivalent programs.
351.608(d), an agency may not approve (b) Undue interruption. An agency
an employees use of any other type of may make a temporary exception for
leave after the employee has been re- not more than 90 days when needed to
tained under a temporary exception au- continue an activity without undue
thorized by paragraph (b) of this sec- interruption.
tion. (c) Government obligation. An agency
(6) Annual leave for purposes of para- may make a temporary exception to
graph (b) of this section is described in satisfy a Government obligation to the
630.212 of this chapter. retained employee without regard to
(c) Documentation. Each agency shall the 90-day limit set forth under para-
record on the retention register, for in- graph (a)(1) of this section.
spection by each employee, the reasons (d) Sick leave. An agency may make a
for any deviation from the order of re- temporary exception to retain on sick
lease required by 351.601 or 351.605. leave a lower standing employee cov-
[62 FR 10682, Mar. 10, 1997] ered by chapter 63 of title 5, United
States Code (or other applicable leave
351.607 Permissive continuing excep- system for Federal employees), who is
tions. on approved sick leave on the effective
An agency may make exception to date of the reduction in force, for a pe-
the order of release in 351.601 and to riod not to exceed the date the employ-
the action provisions of 351.603 when ees sick leave is exhausted. Use of sick
needed to retain an employee on duties leave for this purpose must be in ac-
that cannot be taken over within 90 cordance with the requirements in part
days and without undue interruption to 630, subpart D, of this chapter (or other
the activity by an employee with high- applicable leave system for Federal
er retention standing. The agency shall employees). Except as authorized by
260
351.606(b), an agency may not approve tablish a maximum number of days, up

an employees use of any other type of to 90 days, for which an exception may
leave after the employee has been re- be approved.
tained under this paragraph (d). (g) Notice to employees. When an agen-
(e)(1) An agency may make a tem- cy approves an exception for more than
porary exception to retain on accrued 30 days, it must:
annual leave a lower standing em- (1) Notify in writing each higher
ployee who: standing employee in the same com-
(i) Is being involuntarily separated petitive level reached for release of the
under this part;
reasons for the exception and the date
(ii) Is covered by a Federal leave sys-
the lower standing employees reten-
tem under authority other than chap-
ter 63 of title 5, United States Code; tion will end; and
and, (2) List opposite the employees name
(iii) Will attain first eligibility for an on the retention register the reasons
immediate retirement benefit under 5 for the exception and the date the em-
U.S.C. 8336, 8412, or 8414 (or other au- ployees retention will end.
thority), and/or establish eligibility [62 FR 10682, Mar. 10, 1997]
under 5 U.S.C. 8905 (or other authority)
to carry health benefits coverage into
retirement during the period rep- Subpart GAssignment Rights
resented by the amount of the employ- (Bump and Retreat)
ees accrued annual leave.
(2) An agency may not approve an 351.701 Assignment involving dis-
employees use of any other type of placement.
leave after the employee has been re- (a) General. When a group I or II com-
tained under this paragraph (e). petitive service employee with a cur-
(3) This exception may not exceed the rent annual performance rating of
date the employee first becomes eligi- record of minimally successful (Level
ble for immediate retirement or for 2) or equivalent, or higher, is released
continuation of health benefits into re- from a competitive level, an agency
tirement, except that an employee may shall offer assignment, rather than fur-
be retained long enough to satisfy both lough or separate, in accordance with
retirement and health benefits require- paragraphs (b), (c), and (d) of this sec-
ments. tion to another competitive position
(4) Accrued annual leave includes all
which requires no reduction, or the
accumulated, accrued, and restored an-
lease possible reduction, in representa-
nual leave, as applicable, in addition to
tive rate. The employee must be quali-
annual leave earned and available to
the employee after the effective date of fied for the offered position. The of-
the reduction in force. When approving fered position shall be in the same
a temporary exception under this pro- competitive area, last at least 3
vision, an agency may not advance an- months, and have the same type of
nual leave or consider any annual leave work schedule (e.g., full-time, part-
that might be credited to an employ- time, intermittent, or seasonal) as the
ees account after the effective date of position from which the employee is
the reduction in force other than an- released. Upon accepting an offer of as-
nual leave earned while in an annual signment, or displacing another em-
leave status. ployee under this part, an employee re-
(f) Other exceptions. An agency may tains the same status and tenure in the
make a temporary exception under this new position. The promotion potential
section to extend an employees separa- of the offered position is not a consid-
tion date beyond the effective date of eration in determining an employees
the reduction in force when the tem- right of assignment.
porary retention of a lower standing (b) Lower subgroupbumping. A re-
employee does not adversely affect the leased employee shall be assigned in
right of any higher standing employee accordance with paragraph (a) of this
who is released ahead of the lower section and bump to a position that:
standing employee. The agency may es-
261
351.701 5 CFR Ch. I (1116 Edition)
(1) Is held by another employee in a (e) Pay rates. (1) The determination of
lower tenure group or in a lower sub- equivalent grade intervals shall be
group within the same tenure group; based on a comparison of representa-
and tive rates.
(2) Is no more than three grades (or (2) Each employees assignment
appropriate grade intervals or equiva- rights shall be determined on the basis
lent) below the position from which the of the pay rates in effect on the date of
employee was released. issuance of specific reduction-in-force
(c) Same subgroup-retreating. A re- notices, except that when it is offi-
leased employee shall be assigned in cially known on the date of issuance of
accordance with paragraphs (a) and (d) notices that new pay rates have been
of this section and retreat to a position approved and will become effective by
that: the effective date of the reduction in
(1) Is held by another employee with force, assignment rights shall be deter-
lower retention standing in the same mined on the basis of the new pay
tenure group and subgroup; and rates.
(2) Is not more than three grades (or (f)(1) In determining applicable
appropriate grade intervals or equiva- grades (or grade intervals) under
lent) below the position from which the 351.701(b)(2) and 351.701(c)(2), the
employee was released, except that for agency uses the grade progression of
a preference eligible employee with a the released employees position of
compensable service-connected dis- record to determine the grade (or inter-
ability of 30 percent or more the limit val) limits of the employees assign-
is five grades (or appropriate grade in- ment rights.
tervals or equivalent). (The agency (2) For positions covered by the Gen-
uses the grade progression of only the eral Schedule, the agency must deter-
released employees position of record mine whether a one-grade, two-grade,
to determine the applicable grades (or or mixed grade interval progression is
appropriate grade intervals or equiva- applicable to the position of the re-
lent) of the employees retreat right. leased employee.
The agency does not consider the grade (3) For positions not covered by the
progression of the position to which General Schedule, the agency must de-
the employee has a retreat right.); and termine the normal line of progression
(3) Is the same position, or an essen- for each occupational series and grade
tially identical position, formerly held level to determine the grade (or inter-
by the released employee on a perma- val) limits of the released employees
nent basis as a competing employee in assignment rights. If the agency deter-
a Federal agency (i.e., when held by the mines that there is no normal line of
released employee in an executive, leg- progression for an occupational series
islative, or judicial branch agency, the and grade level, the agency provides
position would have been placed in ten- the released employee with assignment
ure groups I, II, or III, or equivalent). rights to positions within three actual
In determining whether a position is grades lower on a one-grade basis. The
essentially identical, the determina- normal line of progression may include
tion is based on the competitive level positions in different pay systems.
criteria found in 351.403, but not nec- (4) For positions where no grade
essarily in regard to the respective structure exists, the agency determines
grade, classification series, type of a line of progression for each occupa-
work schedule, or type of service, of tion and pay rate, and provides assign-
the two positions. ment rights to positions within three
(d) Limitation. An employee with a grades (or intervals) lower on that
current annual performance rating of basis.
record of minimally successful (Level (5) If the released employee holds a
2) or equivalent may be assigned under position that is less than three grades
paragraph (c) of this section only to a above the lowest grade in the applica-
position held by another employee with ble classification system (e.g., the em-
a current annual performance rating of ployee holds a GS2 position), the agen-
record no higher than minimally suc- cy provides the released employee with
cessful (Level 2) or equivalent. assignment rights up to three actual
262
grades lower on a one-grade basis in 351.702 Qualifications for assign-

other pay systems. ment.
(g) If a competitive area includes (a) Except as provided in 351.703, an
more than one local commuting area, employee is qualified for assignment
the agency determines assignment under 351.701 if the employee:
rights under this part on the basis of (1) Meets the OPM standards and re-
the representative rates for one local quirements for the position, including
commuting area within the competi- any minimum educational require-
tive area (i.e., the same local comment, and any selective placement fac-
muting area used to establish competi- tors established by the agency;
tive levels under 351.403(c)(4), (5), and (2) Is physically qualified, with rea-
(6)). sonable accommodation where appro-
priate, to perform the duties of the po-
(h) If a competitive area includes po-
sition;
sitions under one or more pay bands, a
(3) Meets any special qualifying con-
released employee shall be assigned in dition which the OPM has approved for
accordance with paragraphs (a) the position; and
through (d) of this section to a position (4) Has the capacity, adaptability,
in an equivalent pay band or one pay and special skills needed to satisfac-
band lower, as determined by the agen- torily perform the duties of the posi-
cy, than the pay band from which re- tion without undue interruption. This
leased. A preference eligible with a determination includes recency of ex-
service-connected disability of 30 per- perience, when appropriate.
cent or more must be assigned in ac- (b) The sex of an employee may not
cordance with paragraphs (a) through be considered in determining whether
(d) of this section to a position in an an employee is qualified for a position,
equivalent pay band or up to two pay except for positions which OPM has de-
bands lower, as determined by the termined certification of eligibles by
agency, than the pay band from which sex is justified.
released. (c) An employee who is released from
(i) If a competitive area includes po- a competitive level during a leave of
absence because of a corpensable injury
sitions under one or more pay bands,
may not be denied an assignment right
and other positions not covered by a
solely because the employee is not
pay band (e.g., GS and/or FWS posi-
physically qualified for the duties of
tions), the agency provides assignment the position if the physical disquali-
rights under this part by: fication resulted from the compensable
(1) Determining the representative injury. Such an employee must be af-
rate of positions not covered by a pay forded appropriate assignment rights
band, consistent with 351.203; subject to recovery as provided by 5
(2) Determining the representative U.S.C. 8151 and part 353 of this chapter.
rate of each pay band, or competitive (d) If an agency determines, on the
level within the pay band(s), consistent basis of evidence before it, that a pref-
with 351.203; erence eligible employee who has a
(3) As determined by the agency, pro- compensable service-connected dis-
viding assignment rights under para- ability of 30 percent or more is not able
graph (b) of this section (bumping), or to fulfill the physical requirements of a
paragraphs (c) and (d) of this section position to which the employee would
(retreating), consistent with the grade otherwise have been assigned under
intervals covered in paragraphs (b)(2) this part, the agency must notify the
and (c)(2) of this section, and the pay OPM of this determination. At the
band intervals in paragraph (h) of this same time, the agency must notify the
employee of the reasons for the deter-
section.
mination and of the right to respond,
[51 FR 319, Jan. 3, 1986, as amended at 56 FR within 15 days of the notification, to
65417, Dec. 17, 1991; 60 FR 3063, Jan. 13, 1995; the OPM which will require the agency
60 FR 44254, Aug. 25, 1995; 62 FR 62502, Nov. 24, to demonstrate that the notification
1997; 63 FR 32594, June 15, 1998; 65 FR 62991, was timely sent to the employees last
Oct. 20, 2000; 73 FR 29389, May 21, 2008] known address. The OPM shall make a
263
351.703 5 CFR Ch. I (1116 Edition)
final determination concerning the satisfactorily perform the duties and

physical ability of the employee to per- responsibilities of the position.
form the duties of the position. This
[56 FR 65417, Dec. 17, 1991]
determination must be made before the
agency may select any other person for 351.704 Rights and prohibitions.
the position. When the OPM has com-
pleted its review of the proposed dis- (a)(1) An agency may satisfy an em-
qualification on the basis of physical ployees right to assignment under
disability, it must sent its finding to 351.701 by assignment to a vacant po-
both the agency and the employee. The sition under 351.201(b), or by assign-
agency must comply with the findings ment under any applicable administra-
of the OPM. The functions of the OPM tive assignment provisions of 351.705,
under this paragraph may not be dele- to a position having a representative
gated to an agency. rate equal to that the employee would
(e) An agency may formally des- be entitled under 351.701. An agency
ignate as a trainee or developmental may also offer an employee assignment
position a position in a program with under 351.201(b) to a vacant position
all of the following characteristics: in lieu of separation by reduction in
(1) The program must have been de- force under 5 CFR part 351. Any offer of
signed to meet the agencys needs and assignment under 351.201(b) to a va-
requirements for the development of cant position must meet the require-
skilled personnel; ments set forth under 351.701.
(2) The program must have been for- (2) An agency may, at its discretion,
mally designated, with its provisions choose to offer a vacant other-than-
made known to employees and super- full-time position to a full-time em-
visors; ployee or to offer a vacant full-time po-
(3) The program must be develop- sition to an other-than-full-time em-
mental by design, offering planned ployee in lieu of separation by reduc-
growth in duties and responsibilities, tion in force.
and providing advancement in recog- (b) Section 351.701 does not:
nized lines of career progression; and (1) Authorize or permit an agency to
(4) The program must be fully imple- assign an employee to a position hav-
mented, with the participants chosen ing a higher representative rate;
through standard selection procedures. (2) Authorize or permit an agency to
To be considered qualified for assign- displace a full-time employee by an
ment under 351.701 to a formally des- other-than-full-time employee, or to
ignated trainee or developmental posi- satisfy an other-than-full-time employ-
tion in a program having all of the ees right to assignment by assigning
characteristics covered in paragraphs the employee to a vacant full-time po-
(e)(1), (2), (3), and (4) of this section, an sition.
employee must meet all of the condi-
(3) Authorize or permit an agency to
tions required for selection and entry
displace an other-than-full-time em-
into the program.
ployee by a full-time employee, or to
[51 FR 319, Jan. 3, 1986, as amended at 60 FR satisfy a full-time employees right to
3063, Jan. 13, 1995] assignment by assigning the employee
to a vacant other-than-full-time posi-
351.703 Exception to qualifications. tion.
An agency may assign an employee (4) Authorize or permit an agency to
to a vacant position under 351.201(b) assign a competing employee to a tem-
or 351.701 of this part without regard porary position (i.e., a position under
to OPMs standards and requirements an appointment not to exceed 1 year),
for the position if: except as an offer of assignment in lieu
(a) The employee meets any min- of separation by reduction in force
imum education requirement for the under this part when the employee has
position; and no right to a position under 351.701 or
(b) The agency determines that the 351.704(a)(1) of this part. This option
employee has the capacity, adapt- does not preclude an agency from, as
ability, and special skills needed to an alternative, also using a temporary
264
position to reemploy a competing em- sition to a position in the competitive

ployee following separation by reduc- service.
tion in force under this part.
(5) Authorize or permit an agency to 62502, Nov. 24, 1997]
displace an employee or to satisfy a
competing employees right to assign-
ment by assigning the employee to a Subpart HNotice to Employee
position with a different type of work
schedule (e.g., full-time, part-time, SOURCE: 60 FR 2679, Jan. 11, 1995, unless
intermittent, or seasonal) than the po- otherwise noted.
sition from which the employee is re-
leased. 351.801 Notice period.
[51 FR 319, Jan. 3, 1986, as amended at 56 FR (a)(1) Each competing employee se-
65417, Dec. 17, 1991; 60 FR 3063, Jan. 13, 1995; lected for release from a competitive
63 FR 63591, Nov. 16, 1998] level under this part is entitled to a
specific written notice at least 60 full
351.705 Administrative assignment. days before the effective date of re-
(a) An agency may, at its discretion, lease.
adopt provisions which: (2) At the same time an agency issues
(1) Permit a competing employee to a notice to an employee, it must give a
displace an employee with lower reten- written notice to the exclusive rep-
tion standing in the same subgroup resentative(s), as defined in 5 U.S.C.
consistent with 351.701 when the agen- 7103(a)(16), of each affected employee at
cy cannot make an equally reasonable the time of the notice. When a signifi-
assignment by displacing an employee cant number of employees will be sepa-
in a lower subgroup; rated, an agency must also satisfy the
(2) Permit an employee in subgroup notice requirements of 351.803 (b) and
III-AD to displace an employee in sub- (c).
group III-A or III-B, or permit an em- (b) When a reduction in force is
ployee in subgroup III-A to displace an caused by circumstances not reason-
employee is subgroup III-B consistent ably foreseeable, the Director of OPM,
with 351.701; or at the request of an agency head or
(3) Provide competing employees in designee, may approve a notice period
the excepted service with assignment of less than 60 days. The shortened no-
rights to other positions under the tice period must cover at least 30 full
same appointing authority on the same days before the effective date of re-
basis as assignment rights provided to lease. An agency request to OPM shall
competitive service employees under specify:
351.701 and in paragraphs (a) (1) and (2) (1) The reduction in force to which
of this section. the request pertains;
(b) Provisions adopted by an agency (2) The number of days by which the
under paragraph (a) of this section: agency requests that the period be
(1) Shall be consistent with this part; shortened;
(2) Shall be uniformly and consist- (3) The reasons for the request; and
ently applied in any one reduction in (4) Any other additional information
force; that OPM may specify.
(3) May not provide for the assign- (c) The notice period begins the day
ment of an other-than-full-time em- after the employee receives the notice.
ployee to a full-time position; (d) When an agency retains an em-
(4) May not provide for the assign- ployee under 351.607 or 351.608, the
ment of a full-time employee to an notice to the employee shall cite the
other-than-full-time position; date on which the retention period
(5) May not provide for the assign- ends as the effective date of the em-
ment of an employee in a competitive ployees release from the competitive
service position to a position in the ex- level.
cepted service; and [60 FR 2678, Jan. 11, 1995, as amended at 60

(6) May not provide for the assign- FR 44254, Aug. 25, 1995; 63 FR 32594, June 15,
ment of an employee in an excepted po- 1998; 65 FR 25623, May 3, 2000]
265
351.802 5 CFR Ch. I (1116 Edition)
351.802 Content of notice. the States Workforce Investment Act

(a)(1) The action to be taken, the rea- of 1998 programs, and an estimate of
sons for the action, and its effective severance pay (if eligible).
date; (b) When 50 or more employees in a
(2) The employees competitive area, competitive area receive separation no-
competitive level, subgroup, service tices under this part, the agency must
date, and three most recent ratings of provide written notification of the ac-
record received during the last 4 years; tion, at the same time it issues specific
(3) The place where the employee notices of separation to employees, to:
may inspect the regulations and record (1) The State or the entity designated
pertinent to this case; by the State to carry out rapid re-
(4) The reasons for retaining a lower- sponse activities under title I of the
standing employee in the same com- Workforce Investment Act of 1998;
petitive level under 351.607 or 351.608; (2) The chief elected official of local
(5) Information on reemployment government(s) within which these sepa-
rights, except as permitted by rations will occur; and
351.803(a); and (3) OPM.
(6) The employees right, as applica- (c) The notice required by paragraph
ble, to appeal to the Merit Systems (b) of this section must include:
Protection Board under the provisions (1) The number of employees to be
of the Boards regulations or to grieve separated from the agency by reduc-
under a negotiated grievance proce- tion in force (broken down by geo-
dure. The agency shall also comply graphic area or other basis specified by
with 1201.21 of this title. OPM);
(b) When an agency issues an em- (2) The effective date of the separa-
ployee a notice, the agency must, upon tions; and
the employees request, provide the (3) Any other information specified
employee with a copy of OPMs reten- by OPM, including information needs
tion regulations found in part 351 of identified from consultation between
this chapter. OPM and the Department of Labor to
[60 FR 2678, Jan. 11, 1995, as amended at 60 facilitate delivery of placement and re-
FR 44254, Aug. 25, 1995; 62 FR 62502, Nov. 24, lated services.
1997; 63 FR 32595, June 15, 1998] [60 FR 2679, Jan. 11, 1995, as amended at 62
FR 62502, Nov. 24, 1997; 65 FR 64133, Oct. 26,
351.803 Notice of eligibility for reem- 2000]
ployment and other placement as-
sistance. 351.804 Expiration of notice.
(a) An employee who receives a spe- (a) A notice expires when followed by
cific notice of separation under this the action specified, or by an action
part must be given information con- less severe than specified, in the notice
cerning the right to reemployment or in an amendment made to the notice
consideration and career transition as-
before the agency takes the action.
sistance under subparts B (Reemploy-
(b) An agency may not take the ac-
ment Priority List), F, and G (Career
tion before the effective date in the no-
Transition Assistance Programs) of
tice; instead, the agency may cancel
part 330 of this chapter. The employee
the reduction in force notice and issue
must also be given a release to author-
a new notice subject to this subpart.
ize, at his or her option, the release of
his or her resume and other relevant [62 FR 62502, Nov. 24, 1997]
employment information for employ-
ment referral to the State unit or enti- 351.805 New notice required.
ty established under title I of the (a) An employee is entitled to a writ-
Workforce Investment Act of 1998 and ten notice of at least 60 full days if the
potential public or private sector em- agency decides to take an action more
ployers. The employee must also be severe than first specified.
given information concerning how to (b) An agency must give an employee
apply both for unemployment insur- an amended written notice if the reduc-
ance through the appropriate State tion in force is changed to a later date.
program and benefits available under A reduction in force action taken after
266
the date specified in the notice given (1) There is a good likelihood the em-
to the employee is not invalid for that ployee will be separated under this
reason, except when it is challenged by part;
a higher-standing employee in the (2) Employment opportunities in the
competitive level who is reached out of same or similar position in the local
order for a reduction in force action as commuting area are limited or non-
a result of the change in dates. existent;
(c) An agency must give an employee (3) Placement opportunities within
an amended written notice and allow the employees own or other Federal
the employee to decide whether to ac- agencies in the local commuting area
cept a better offer of assignment under are limited or nonexistent; and
subpart G of this part that becomes (4) If eligible for optional retirement,
available before or on the effective the employee has not filed a retirement
date of the reduction in force. The application or otherwise indicated in
writing an intent to retire.
agency must give the employee the
(c) A certification is to be addressed
amended notice regardless of whether
to each individual eligible employee
the employee has accepted or rejected
and must be signed by an appropriate
a previous offer of assignment, pro-
agency official. A certification must
vided that the employee has not volun- contain the expected date of reduction
tarily separated from his or her official in force, a statement that each factor
position. in paragraph (b) of this section has
[62 FR 62502, Nov. 24, 1997, as amended at 65 been satisfied, and a description of
FR 25623, May 3, 2000] Workforce Investment Act of 1998, title
I, programs, the Interagency Place-
351.806 Status during notice period. ment Program, and the Reemployment
When possible, the agency shall re- Priority List.
tain the employee on active duty sta- (d) A certification may not be used to
tus during the notice period. When in satisfy any of the notice requirements
an emergency the agency lacks work or elsewhere in this subpart.
(e) An agency determination of eligi-
funds for all or part of the notice pe-
bility for certification may not be ap-
riod, it may place the employee on an-
pealed to OPM or the Merit Systems
nual leave with or without his or her
Protection Board.
consent, or leave without pay with his
(f) An agency may also enroll eligible
or her consent, or in a nonpay status employees on the agencys Reemploy-
without his or her consent. ment Priority List up to 6 months in
advance of a reduction in force. For re-
351.807 Certification of Expected
Separation. quirements and criteria, see subpart B
of part 330 of this chapter.
(a) For the purpose of enabling other-
wise eligible employees to be consid- [60 FR 2678, Jan. 11, 1995, as amended at 60
FR 44254, Aug. 25, 1995; 65 FR 64134, Oct. 26,
ered for eligibility to participate in 2000; 66 FR 29896, June 4, 2001]
dislocated worker programs under the
Workforce Investment Act of 1998 ad-
ministered by the U.S. Department of
Subpart IAppeals and
Labor, an agency may issue a Certifi- Corrective Action
cate of Expected Separation to a com- 351.901 Appeals.
peting employee who the agency be-
lieves, with a reasonable degree of cer- An employee who has been fur-
tainty, will be separated from Federal loughed for more than 30 days, sepa-
employment by reduction in force pro- rated, or demoted by a reduction in
cedures under this part. A certification force action may appeal to the Merit
may be issued up to 6 months prior to Systems Protection Board.
the effective date of the reduction in [52 FR 46051, Dec. 4, 1987]
force.
351.902 Correction by agency.
(b) This certification may be issued

to a competing employee only when When an agency decides that an ac-
the agency determines: tion under this part was unjustified or
267
unwarranted and restores an individual 352.404 Retirement and insurance.

to the former grade or rate of pay held 352.405 Resumption of Federal service.
or to an intermediate grade or rate of
Subpart EReinstatement Rights After Serv-
pay, it shall make the restoration
ice Under Section 233(d) and 625(b) of
retroactively effective to the date of
the Foreign Assistance Act of 1961
the improper action.
352.501 Purpose.
Subpart J [Reserved] 352.502 Coverage.
352.504 Basic entitlement.
PART 352REEMPLOYMENT RIGHTS 352.505 Proposed termination.
352.506 Application for reinstatement.
Subpart A [Reserved] 352.507 Reinstatement.
352.508 Appeals to the Merit Systems Pro-
Subpart BReemployment Rights Based tection Board.
on Movement Between Executive
Agencies During Emergencies Subpart F [Reserved]
Sec. Subpart GReemployment Rights of

352.201 Letter of Authority. Former Bureau of Indian Affairs and In-
352.202 Request for Letter of Authority. dian Health Service Employees After
352.203 Standards for issuing Letters of Au- Service Under the Indian Self-Deter-
thority.
352.204 Basic eligibility for reemployment
mination Act in Tribal Organizations
rights. 352.701 Purpose.
352.205 Appeal of losing agency. 352.702 Definitions.
352.205a Authority to return employee to 352.703 Basic entitlement to reemployment
his or her former or successor agency. rights on leaving Federal employment.
352.205b Authority to return an SES em- 352.704 Duration of reemployment rights.
ployee to his or her former or successor 352.705 Return to Federal employment.
agency. 352.706 Agency response to reemployment
352.206 Expiration of reemployment rights. application.
352.207 Exercise or termination of reemploy- 352.707 Employee appeals to the Merit Sys-
ment rights. tems Protection Board.
352.208 Agencys obligation to reemploy.
352.209 Employee appeals to the Merit Sys- Subpart HReemployment Rights Under
tems Protection Board. the Taiwan Relations Act
Subpart CDetail and Transfer of Federal 352.801 Purpose.
Employees to International Organizations 352.802 Definitions.
352.803 Basic entitlement to reemployment
352.301 Purpose. rights on leaving Federal employment.
352.302 Definitions. 352.804 Maximum period of entitlement to
352.303 [Reserved] reemployment.
352.304 International organizations covered. 352.805 Position to which entitled on reem-
352.305 Eligibility for detail. ployment.
352.306 Length of details. 352.806 Return to Federal employment.
352.307 Eligibility for transfer. 352.807 Appeals.
352.308 Effecting employment by transfer.
352.309 Retirement, health benefits, and Subpart IReemployment Rights After
group life insurance.
352.310 [Reserved]
Service With the Panama Canal Com-
352.311 Reemployment. mission
352.312 When to apply. 352.901 Purpose.
352.313 Failure to reemploy and right of ap- 352.902 Definitions.
peal. 352.903 Effecting a detail or transfer.
352.314 Consideration for promotion and pay
352.904 Eligibility.
increases.
352.905 Employees on detail.
352.906 Termination of transfer.
Subpart DEmployment of Presidential 352.907 Exercise or termination of reemploy-
Appointees and Elected Officers by ment rights.
the International Atomic Energy Agen- 352.908 Agency obligation.
cy 352.909 Appeals.
352.401 Purpose. SOURCE: 33 FR 12433, Sept. 4, 1968, unless

352.402 Coverage. otherwise noted.
268
EDITORIAL NOTE: Nomenclature changes to (d) There must be substantial basis
part 352 appear at 69 FR 2050, Jan. 13, 2004. for the belief that reemployment rights
will be a significant and reasonable aid
Subpart A [Reserved] in meeting the emergency situation.
352.204 Basic eligibility for reemploy-
Subpart BReemployment Rights ment rights.
Based on Movement Between (a) Employees eligible. The following
Executive Agencies During employees in the executive branch of
Emergencies the Government are eligible to be
granted reemployment rights when
AUTHORITY: 5 U.S.C. 3101 note, 3301, 3131 et they are hired by another executive
seq. 3302; E.O. 10577, 3 CFR 19541958 Com., p. agency without break in service of a
218; sec. 352. 209 also issued under 5 U.S.C. full workday by transfer or reinstate-
7701, et seq. ment, or by excepted appointment, in a
position which the agency is currently
352.201 Letter of Authority.
authorized to fill with reemployment
(a) Definition. A Letter of Authority rights:
is an authorization from OPM to an (1) An employee serving in a competi-
agency appointing officer to grant re- tive position under a career or career-
employment rights. conditional appointment;
(b) Scope of authority. A Letter of Au- (2) An employee serving under a ca-
thority shall specify the conditions reer appointment in the Senior Execu-
under which it may be used, including tive Service (SES); or
the types of positions covered and the (3) A nontemporary excepted em-
organizational and geographic areas to ployee.
which it is restricted. (b) Employees not eligible. The fol-
(c) Time limit of authority. A Letter of lowing employees are not eligible to be
Authority shall remain in force for one granted reemployment rights:
year from date of issuance unless ear- (1) An employee who is serving a pro-
lier revoked by OPM. Renewals or ex- bationary or trial period under an ap-
tensions will not be issued unless justi- pointment to a position in the excepted
fied by exceptional circumstances. or competitive service or the SES.
(2) An employee serving in an obli-
352.202 Request for Letter of Author- gated position;
ity. (3) An employee serving with reem-
When an agency believes that an ployment rights granted under this
emergency situation is so critical as to subpart;
justify offers of reemployment rights, (4) An employee who has received a
it may request OPM to issue a Letter notice of involuntary separation be-
of Authority. In submitting the request cause of reduction in force or other-
the agency shall present its justifica- wise; or
tion in terms of the standards provided (5) An employee who has already sub-
in 352.203. mitted a resignation.
352.203 Standards for issuing Letters FR 25187, July 11, 1986]
of Authority.
OPM will determine the standards to 352.205 Appeal of losing agency.
be used in issuing Letters of Authority, An appointing officer who intends to
which shall include the following: employ with reemployment rights an
(a) The positions to be filled must be employee of another executive agency
related to emergency situations for shall give the losing agency written no-
which the usual recruiting methods are tice at least 15 calendar days before the
inadequate. effective date of the proposed action. If
(b) The positions must be a part of a the losing agency believes the grant of
specific program immediately essential reemployment rights would be detri-
to the national interest. mental to the public interest, it may

(c) The positions must be essential to appeal the proposed grant to OPM
the functioning of the program. within 15 calendar days after receipt of
269
352.205a 5 CFR Ch. I (1116 Edition)
the notice. The losing agency, at the 352.206 Expiration of reemployment

same time, shall furnish a copy of the rights.
appeal to the prospective appointing Reemployment rights granted under
officer, who shall withhold the pro-
a Letter of Authority expire at the end
posed grant pending decision on the ap-
of 2 years following the date of the per-
peal. OPM shall determine whether the
sonnel action, unless exercised or oth-
employee will be given reemployment
rights and notify both agencies accord- erwise terminated before that time, ex-
ingly. If the losing agency does not ap- cept that the reemployment rights of
peal within 15 calendar days, the em- an employee serving outside the conti-
ployee shall be granted reemployment nental United States extend for an ad-
rights. ditional period of 3 months.
352.205a Authority to return em- 352.207 Exercise or termination of re-

ployee to his or her former or suc- employment rights.
cessor agency. (a) Exercise. The time limits for appli-
The transfer of an employee with a cation for reemployment under this
grant of reemployment rights under subpart are:
this subpart authorizes the return of (1) Within 30 calendar days before the
the employee to his or her former or expiration of the term of reemploy-
successor agency without regard to ment rights;
part 351, 752, or 771 of this chapter when (2) Within 30 calendar days after re-
the employee is reemployed in his or ceipt of notice of involuntary separa-
her former or successor agency tion;
(a) Without a break in service of 1 (3) At least 30 calendar days in ad-
workday or more in a position at the vance of the persons scheduled entry
same or higher grade in the same occu- into active military duty. In this case
pational field and geographical area as he shall be reemployed and separated,
the position he or she last held in the furloughed, or granted leave of absence
former or successor agency; and for military service by the reemploying
(b) At not less than the rate of pay he agency; or
or she would have been receiving in the (4) At any time before the expiration
position last held in the former or suc- of the term of reemployment rights
cessor agency if he or she had not been
with the written consent of the current
transferred.
employing agency if application for re-
[51 FR 25187, July 11, 1986] employment is made within 30 days
after date of separation, or after re-
352.205b Authority to return an SES ceipt of advance notice of proposed de-
employee to his or her former or motion by the current employing agen-
successor agency.
cy.
The transfer of a career SES ap- (b) Termination. An employees reem-
pointee with a grant of reemployment ployment rights terminate if:
rights under this subpart authorizes (1) He fails to apply within the time
the return of the employee to his or limits stated in paragraph (a) of this
her former or successor agency when section;
the employee is reemployed in his or (2) He resigns without the written
her former or successor agency
consent of the current employing agen-
(a) Without a break in service of 1 cy; or
workday or more in any position in the
(3) Within 10 calendar days, he fails
SES for which the employee is quali-
to accept an offer of reemployment
fied; and
made under 352.208 which is deter-
(b) At not less than the SES rate of
mined to be a proper offer of reemploy-
basic pay as determined under 5 CFR
part 534, subpart D at which the em- ment by the reemploying agency or by
ployee was being paid immediately be- the Merit Systems Protection Board on
fore his or her transfer. appeal.
[51 FR 25187, July 11, 1986]
270
352.208 Agencys obligation to reem- The agency shall comply with the pro-
ploy. visions of 1201.21 of this title.
(a) Employees right to reemployment. [44 FR 48952, Aug. 21, 1979]
An employee is entitled to be reem-
ployed by the reemploying agency as Subpart CDetail and Transfer of
promptly as possible but not more than
30 calendar days after receipt of his ap-
Federal Employees to Inter-
plication. Except as provided in para- national Organizations
graph (c) of this section, the employee
is entitled to reemployment in the oc- AUTHORITY: 5 U.S.C. 3584, E.O. 11552, 3 CFR
cupational field and at the same grade 19661970 Comp., p. 954; Section 352.313 also
or level and in the same geographical issued under 5 U.S.C. 7701, et seq.
area as the position which the em- SOURCE: 35 FR 16525, Oct. 23, 1970, unless
ployee last held in that agency. If the otherwise noted.
reemployment would cause the separa-
tion or demotion of another employee, 352.301 Purpose.
the applicant shall then be considered The purpose of this subpart is to en-
an employee for the purpose of apply- courage details and transfers of em-
ing the reduction-in-force regulations ployees for service with international
(5 CFR part 351) to determine to what, organizations as authorized by sections
if any, position, he or she is entitled. 3343 and 35813584 of title 5, United
(b) Reemployment in a higher grade. States Code, and to provide procedures
The reemploying agency may reemploy for participation in the program.
the employee in a position of higher
grade than that to which he is entitled, 352.302 Definitions.
but not if this reemployment would In this subpart:
cause the displacement of another em-
(a) Agency, employee, international or-
ployee.
ganization, and transfer have the mean-
(c) Reemployment in SES. When the ing given them by section 3581 of title
employees right is to a position in the 5, United States Code;
SES, reemployment or return may be
(b) Detail has the meaning given it by
to any position in the SES for which
section 3343 of title 5, United States
the employee is qualified.
Code; and
(d) Seniority in postal service. On reem-
(c) Term of employment means not
ployment in the postal service, the em-
more than (1) 5 consecutive years of
ployee is entitled to the seniority he
employment, except that when the Sec-
would have attained had he remained
retary of State determines it to be in
in the postal service.
the national interest, the detail or
(e) Basis for agency refusal to reemploy. transfer may be extended up to an ad-
An agency may refuse to reemploy ditional 3 years, or (2) the period of less
under this section only when the em- than 5 years specified at the time of
ployee was last separated for serious consent to transfer or detail, beginning
cause evidencing his unsuitability for with entrance on duty in the inter-
reemployment. national organization.
FR 25187, July 11, 1986] 352.303 [Reserved]
352.209 Employee appeals to the 352.304 International organizations

Merit Systems Protection Board. covered.
When an agency denies reemploy- (a) An agency may detail or transfer
ment to a person claiming reemploy- an employee under this subpart, with-
ment rights under this subpart, the out prior approval, to an organization
agency shall inform him or her of that which the Department of State has des-
denial by a written notice. In the same ignated as an international organiza-
notice, the agency shall inform him/her tion.
of his/her right to appeal to the Merit (b) An agency may detail or transfer
Systems Protection Board under the an employee under this subpart to any
provisions of the Boards regulations. other public international organization
271
352.305 5 CFR Ch. I (1116 Edition)
or international organization pre- (a) A Presidential appointee (other

paratory commission only when the than a postmaster, a Foreign Service
Department of State agrees that the officer or a Foreign Service informa-
organization concerned could be des- tion officer), regardless of whether his
ignated as an international organiza- appointment was made by and with the
tion covered by sections 3343 and 3581 advice and consent of the Senate.
of title 5, United States Code. (b) A person serving in the executive
branch in a confidential or policy-de-
[73 FR 64860, Oct. 31, 2008]
termining position excepted from the
352.305 Eligibility for detail. competitive service under Schedule C
of part 213 of this chapter.
An employee is eligible for detail to (c) A person serving under a non-
an international organization with the career, limited emergency, or limited
rights provided for in, and in accord- term appointment in the SES.
ance with, section 3343 of title 5, (d) A person serving under a tem-
United States Code, and this subpart, porary appointment pending establish-
except the following: ment of a register.
(a) A Presidential appointee (other (e) A person serving under an ap-
than a postmaster, Foreign Service of- pointment specifically limited to 1
ficer or a Foreign Service information year or less.
officer), regardless of whether the ap- (f) A person serving on a seasonal,
pointment was made by and with the intermittent, or part-time basis.
advice and consent of the Senate.
[35 FR 16525, Oct. 23, 1970, as amended at 51
(b) A person serving in the executive
FR 25188, July 11, 1986; 57 FR 10124, Mar. 24,
branch in a confidential or policy-de- 1992]
termining position excepted from the
competitive service under Schedule C 352.308 Effecting employment by
of part 213 of this chapter. transfer.
(c) A person serving under a non-ca- (a) Authority to approve transfers. On
reer, limited emergency, or limited written request by an international or-
term appointment in the Senior Execu- ganization for the services of an em-
tive Service (SES). ployee, the agency may authorize the
(d) A person serving under a tem- transfer of the employee to the organi-
porary appointment. zation for any period not to exceed 5
[73 FR 64860, Oct. 31, 2008] years, except that when the Secretary
of State determines it to be in the na-
352.306 Length of details. tional interest, a period of employment
The total length of a detail or several by transfer may be extended, subject to
details combined must not exceed 5 the approval of the head of the agency,
consecutive years, except that when for up to an additional 3 years. A trans-
the Secretary of State, on the rec- fer or series of transfers or combina-
ommendation of the head of the agen- tion of details and transfers shall not
cy, determines it to be in the national exceed 8 years in the aggregate. Re-
interest, the 5 years allowed for details fusal by the head of the agency to au-
may be extended for up to an addi- thorize the transfer or the extension of
tional 3 years. A detail or combination the transfer is not reviewable by or ap-
of details and transfers must not ex- pealable to OPM.
ceed 8 years in the aggregate through- (b) Letter of consent. When an agency
out an employees Federal career. consents to the transfer of an em-
ployee, the agency shall give its con-
[73 FR 64860, Oct. 31, 2008] sent in writing to the international or-
ganization and shall furnish the em-
352.307 Eligibility for transfer. ployee with a copy of the consent.
An employee is eligible for transfer (c) Effective date. The agency and the
to an international organization with international organization shall estab-
the rights provided for in, and in ac- lish the effective date of transfer by
cordance with, sections 35813584 of mutual agreement.

title 5, United States Code, and this (d) Recording requirement. The agency
subpart, except the following: must furnish the employee with a leave
272
statement, showing his or her annual employee payments. The employee

and sick leave balances at the time of must make a written election to retain
transfer. In addition, the notification benefits, as applicable, and make ar-
of personnel action effecting the em- rangements for the required employee
ployees separation for transfer must payments. An employee who transfers
include: to an international organization is not
(1) Identification of the international eligible to participate in the Thrift
organization to which the employee is Savings Plan (TSP) while employed by
transferring, the international organization even if
(2) A clear statement of the period he or she elects to retain Federal re-
during which the employee has reem- tirement coverage. However, upon re-
ployment rights in the agency under employment, an employee who elected
section 3582 of title 5, United States to retain Federal retirement coverage
Code, and this subpart, and while employed by the international
(3) The legal and regulatory condi- organization and has made all deposits
tions for reemployment. required for such coverage may make
[35 FR 16525, Oct. 23, 1970, as amended at 73 contributions to the TSP which he or
FR 64860, Oct. 31, 2008] she missed as a result of the service
with an international organization,
352.309 Retirement, health benefits, and receive make-up agency contribu-
and group life insurance. tions and lost earnings on the agency
(a) Agency action. An employee who is contributions, as provided under
transferred to an international organi- 352.311(e).
zation with the consent of the employ- (c) Agency responsibility. For retire-
ing agency is entitled to retain cov- ment and group life insurance pur-
erage for retirement, health benefits, poses, the employing agency is respon-
and group life insurance purposes if he sible for determining the applicable
or she so chooses. The period during rate of pay in accordance with the pro-
which coverage, rights, and benefits visions of section 3583 of title 5, United
are retained under this paragraph, dur- States Code. The agency is also respon-
ing employment with the international sible for collecting, accounting for, and
organization, is deemed employment depositing in the respective funds all
by the United States. At the time an retirement, health benefits, and group
employing Federal agency consents to life insurance employee payments re-
the transfer of an employee, the agency quired to be made for the purpose of
must advise the employee in writing of protecting the rights of the employee
the employees right to continue reso transferred; and for accounting for
tirement, health benefits, and group and depositing in the respective funds
life insurance coverage, as applicable, all agency contributions. The agency
for the duration of the assignment or must furnish the employee with spe-
transfer. The notice must explain the cific information as to how, when, and
conditions for continued coverage and where the payments are to be sub-
the employees obligations and respon- mitted.
sibilities with regard to continued cov- (d) Coverage. Employee payments are
erage. The notice must also explain considered to be currently deposited if
that, if the employee elects to retain received by the agency before, during,
coverage, the agency will continue to or within 3 months after the end of the
make the agency contributions to the pay period covered by the deposit. If
funds, and the employees coverage will the contributions are not currently de-
continue as long as employee payments posited, coverage terminates on the
are currently deposited in the respec- last day of the pay period for which the
tive funds. required contributions were currently
(b) Employee action. The employee deposited, subject to a 31-day extension
must acknowledge, in writing, receipt of group life insurance and health bene-
of the notice and state whether or not fits coverage as provided in parts 870
he or she wishes to retain coverage and 890 of this chapter and to the con-
under the retirement, health benefits, version benefits provided in parts 870
and group life insurance systems or and 890 of this chapter. Coverage so
any of them by continuing the required terminated may not be re-established
273
352.310 5 CFR Ch. I (1116 Edition)
before the employee actually enters on under 352.314(c), at not less than the
duty, on the first day in a pay status in adjusted pay level.
an agency. However, terminated retire- (d) The period of separation caused
ment, health benefits, and group life by the employment of the employee
insurance coverage must be reinstated with the international organization
retroactively when, in the judgment of and the period necessary to effect re-
OPM, the failure to make the required employment are creditable service for
current deposit was due to cir- all appropriate civil service employ-
cumstances beyond the employees ment purposes (e.g., tenure, service
control and the required payments computation date, retirement, time in
were deposited at the first opportunity. grade). Employees, upon return, are
Coverage under a system other than also entitled to restoration of any sick
the Civil Service Retirement System leave.
must be reinstated retroactively if the (e) An employee who elected to re-
agency which administers the retire- tain Federal retirement coverage while
ment system determines that the fail- employed by the international organi-
ure to make the required current de- zation and has made all deposits re-
posit was due to circumstances beyond quired for such coverage may make
the control of the employee and the re- contributions to the TSP which he or
quired payments were deposited at the she missed as a result of the service
first opportunity. with the international organization,
[73 FR 64860, Oct. 31, 2008] and receive make-up agency contribu-
tions and lost earnings on the agency
352.310 [Reserved] contributions, consistent with applica-
ble TSP requirements.
352.311 Reemployment.
[73 FR 64861, Oct. 31, 2008]
(a) An employee who transferred to
an international organization with the 352.312 When to apply.
consent of the employing agency is en-
An employee may apply for reem-
titled to be reemployed in his or her
former position, or one of like senior- ployment, in writing, either before or
ity, status, and pay, within 30 days of after separation from the international
applying for reemployment if the em- organization. If the employee applies
ployee: before separation, the 30-day period
prescribed in 352.311 begins either
(1) Is separated, either voluntarily or
with the date of the application or 30
involuntarily, without cause, within
days before the employees date of sep-
the term of employment with an inter-
aration from the international organi-
national organization; and
zation, whichever is later. If the em-
(2) Applies for reemployment with ployee applies for reemployment after
the employing agency or its successor separation, the application must be re-
no later than 90 days after separation ceived by the employing agency no
from the international organization. later than 90 days after separation
(b) Pay upon reemployment will be from the international organization.
set at that to which the employee
would have been entitled had the em- [73 FR 64861, Oct. 31, 2008]
ployee remained with the employing
agency. 352.313 Failure to reemploy and
(c) When an employees reemploy- right of appeal.
ment right is to a position in the SES, (a) When an agency fails to reemploy
reemployment may be to any position an employee within 30 days of receiving
in the SES for which the employee is the employees application, it must no-
qualified. The employee must be re- tify the employee, in writing, of the
turned at not less than the SES rate of reasons and of the employees right to
basic pay as determined under 5 CFR appeal to the Merit Systems Protec-
part 534, subpart D, at which the em- tion Board under the provisions of the
ployee was being paid immediately be- Boards regulations. The agency must
fore transfer to the international orga- comply with the provisions of 1201.21
nization, or if pay has been adjusted of this title.
274
(b) If the agency fails to reach and 352.401 Purpose.

issue a decision to the employee within
The purpose of this subpart is to im-
30 days from the date of the application
for reemployment, the employee is en- plement section 6(b) of the Inter-
titled to appeal the agencys failure to national Atomic Energy Agency Par-
issue a decision to the Merit Systems ticipation Act of 1957 and Executive
Protection Board under the provisions Order 10774 as amended by Executive
of the Boards regulations. Order 10804 to protect the civil service
(c) An employee may submit an ap- rights and privileges, wherever appro-
peal, alleging that the agency has priate, of Presidential appointees and
failed to comply with any of the other elected officers who leave their posi-
provisions of sections 3343 and 35813584 tions and within 90 days enter employ-
of title 5, United States Code, or of this ment with the International Atomic
part, to the Merit Systems Protection Energy Agency.
Board under the provisions of the
Boards regulations. 352.402 Coverage.
[73 FR 64861, Oct. 31, 2008] This subpart applies to all officers, as
defined in 352.403(b), of any branch of
352.314 Consideration for promotion the Federal Government.
and pay increases.
(a) The employing agency must con-
sider an employee who is detailed or In this subpart:
transferred to an international organi- (a) Agency means the International
zation for all promotions for which the Atomic Energy Agency;
employee would be considered if not (b) Officer means any Presidential ap-
absent. A promotion based on this con- pointee or elected officer who leaves
sideration is effective on the date it his position after August 27, 1957, and
would have been effective if the em- within 90 days enters employment with
ployee were not absent. the agency; and
(b) When the position of an employee (c) Term of employment means not
who is absent on detail or transfer to more than 3 consecutive years of em-
an international organization is up- ployment beginning with entrance on
graded during the employees absence, duty in the agency.
the employing agency must place the
employee in the upgraded position 352.404 Retirement and insurance.
upon return.
(a) Coverage. (1) To obtain retirement
(c) The employing agency must con-
sider an employee who is detailed or benefits for a term of employment with
transferred to an international organi- the agency, an officer covered by sub-
zation from an ungraded pay system chapter III of chapter 83 of title 5
for all pay increases for which the em- United States Code, within 90 days
ployee would have been considered if after the date he is separated from the
not absent. An increase is effective on agency, shall pay to OPM all necessary
the date it would have been effective if employee deductions and agency con-
the employee were not absent. tributions for coverage under that sub-
chapter for his term of employment
[73 FR 64861, Oct. 31, 2008] with the agency. Interest shall not be
charged an officer on any payment of
Subpart DEmployment of Presi- necessary employee deductions and
dential Appointees and Elect- agency contributions. The amount of
ed Officers by the Inter- the employee deductions so paid shall
national Atomic Energy be added to the officers lump-sum
Agency credit in the Civil Service Retirement
and Disability Fund.
AUTHORITY: Sec. 6(c), 71 Stat. 455; 22 U.S.C.
(2) To retain coverage under chapter
2025(c); E.O. 10774, 3 CFR, 19541958 Comp., p. 87 of title 5, United States Code, during
418, as amended by E.O. 10804, 3 CFR, 1959 his term of employment with the agen-
1963 Comp., p. 328. cy, an officer covered by that chapter
275
352.405 5 CFR Ch. I (1116 Edition)
shall currently pay employee deduc- system within 52 calendar weeks after
tions and agency contributions nec- the date he is separated from his term
essary for coverage under that chapter of employment with the agency.
for his term of employment with the (c) Service credit for agency employ-
agency. Collections may be made under ment. An officer who is reemployed in
procedures which may be determined in the Federal service within 90 days after
accordance with written agreements completion of his term of employment
reached between accounting represent- with the agency is entitled to credit as
atives of OPM and the agency. Federal service for his term of employ-
(3) All retirement and insurance ben- ment with the agency. However, OPM
efits and obligations shall be computed shall give service credit for subchapter
in the same manner as if the rate of III of chapter 83 of title 5, United
basic pay the officer was receiving on
States Code, purposes only if the offi-
the last day he was in his Federal posi-
cer complies with the requirements of
tion before employment with the agen-
352.404(a)(1).
cy had continued without change.
(4) An officer not covered by either [33 FR 12433, Sept. 4, 1968, as amended at 51
subchapter III of chapter 83, or chapter FR 25188, July 11, 1986]
87, of title 5, United States Code, in the
Federal position which he last held or Subpart EReinstatement Rights
from which he separates to enter em- After Service Under Section
ployment with the agency does not ac-
quire coverage or benefits under these 233(d) and 625(b) of the For-
statutes based on employment with the eign Assistance Act of 1961
agency.
(b) Death coverage. An officer who AUTHORITY: Sec. 625, 75 Stat. 449; 22 U.S.C.
dies during his term of employment or 2385; E.O. 10973; 3 CFR 19591963 Comp., p. 493;
within 90 days of his separation there- Section 352.508 also issued under 5 U.S.C. 7701
from is deemed to have died in the Fed- et seq.
eral Service.
352.501 Purpose.
352.405 Resumption of Federal serv- This subpart governs reinstatement
ice. authorized by sections 233(d) and 625(b)
(a) Pay increase. Except for an em- of the Foreign Assistance Act of 1961,
ployee whose right is to a position in as amended (22 U.S.C. 2193(d) and 22
the Senior Executive Service (SES), an U.S.C. 235(b)).
officer who is reemployed in the Fed-
eral position which he or she left or [36 FR 13897, July 28, 1971]
one of like seniority, status, and pay
352.502 Coverage.
within 90 days of his or her separation
from the agency following a term of This subpart applies to any of the fol-
employment, is entitled to the rate of lowing serving in a position in the Fed-
basic pay to which he/she would have eral Government:
been entitled had he or she remained in (a) A person serving in the competi-
the Federal service. When the employ- tive service under a career or career-
ees right is to a position in the SES, conditional appointment.
this subpart authorizes reemployment (b) A person serving under a career
to any position in the SES for which appointment in the Senior Executive
the employee is qualified at not less Service (SES).
than the SES rate of basic pay as de- (c) A person serving in the excepted
termined under 5 CFR part 534, subpart service under an appointment without
D at which the employee was being a specific time limitation.
paid immediately before his or her
(d) A person appointed or assigned
transfer.
under authority of the Foreign Service
(b) Sick leave account. An officer shall
Act of 1946, as amended (22 U.S.C. 801 et
have any sick leave account which he
seq.).
may have had in his last Federal posi-

tion reestablished for credit or charge, [33 FR 12433, Sept. 4, 1968, as amended at 51
if he returns to an appropriate leave FR 25188, July 11, 1986]
276
352.503 Definitions. 352.506 Application for reinstate-

ment.
In this subpart:
(a) Act means the Foreign Assistance An employee who desires reinstate-
Act of 1961, as amended (22 U.S.C. 2151 ment shall apply for reinstatement, in
et seq.); and writing, no later than 30 days after his
(b) Former position means the position appointment under authority of sec-
that an employee was occupying at the tion 233(d) or section 625(b) of the Act
is terminated, unless arrangement has
time of his appointment to a position
been made for his reinstatement with-
under authority of section 233(d) or sec-
out a break in service under 352.505(b).
tion 625(b) of the Act.
[36 FR 13897, July 28, 1971]
[36 FR 13897, July 28, 1971]
352.507 Reinstatement.
352.504 Basic entitlement.
An employee eligible for reinstate-
Subject to the conditions specified in
ment is entitled to be reinstated as
this subpart, an employee who is ap- soon as possible after his application
pointed to a position under authority for reinstatement, filed in accordance
of section 233(d) or section 625(b) of the with 352.506, is received. In any event,
Act is entitled, on termination of that he is entitled to be reinstated (a) with-
appointment for any reason other than in 30 days after his application for rein-
his or her own misconduct or delin- statement is received, or (b) on termi-
quency, to be reinstated in his or her nation of the appointment made under
former position or in one of like senior- authority of section 233(d) or section
ity, status, and pay in the same agen- 625(b) of the act, whichever is later.
cy. When the employees right is to a
[36 FR 13897, July 28, 1971]
position in the SES, reinstatement
may be to any position in the SES for 352.508 Appeals to the Merit Systems
which the employee is qualified. The Protection Board.
employee shall be returned at not less
(a) If an agency determines that an
than the SES rate of basic pay as de-
employee who has applied for rein-
termined under 5 CFR part 534, subpart
statement is not eligible for reinstate-
D at which the employee was being ment, it shall notify the employee as
paid immediately before his or her promptly as possible of its decision, of
transfer. If the functions with which the basis therefor, and of the employ-
the employees former position was ees appeal rights under this subpart.
identified have been transferred to an- The employee is entitled to appeal the
other agency, the employees right to decision to the Merit Systems Protec-
reinstatement is in the gaining agency. tion Board under the provisions of the
[51 FR 25188, July 11, 1986] Boards regulations. The agency shall
comply with the provisions of 1201.21
352.505 Proposed termination. of this title.
(b) If an agency fails to reinstate an
At least 45 days before termination of employee within the time limits speci-
the appointment of an employee enti- fied in 352.507, the employee is enti-
tled to reinstatement, the agency ter- tled to appeal to the Merit Systems
minating the employee shall notify the Protection Board under the provisions
employee and his former agency in of the Boards regulations.
writing of the proposed termination. (c) If an employee considers that his
However, notification under this sec- reinstatement is not in accordance
tion is not required when: with the act and this subpart, he or she
(a) The termination is at the employ- is entitled to appeal to the Merit Sys-
ees own request; or tems Protection Board under the provi-
(b) The employee is reinstated with- sions of the Boards regulations.
out a break in service under an ar-
[44 FR 48952, Aug. 21, 1979]
rangement made between the agencies

concerned.
Subpart F [Reserved]
277
352.701 5 CFR Ch. I (1116 Edition)
Subpart GReemployment Rights Self-Determination Act to be per-

of Former Bureau of Indian Af- formed by that tribal organization:
fairs and Indian Health Serv- (1) An employee serving in a competi-
ice Employees After Service tive position under a career or career-
conditional appointment and who has
Under the Indian Self-Deter-
satisfactorily completed at least 6
mination Act in Tribal Organi- months of a probationary period; or
zations (2) A non-temporary excepted service
employee who has satisfactorily com-
AUTHORITY: Sec. 105(i), Pub. L. 93638, 88 pleted at least 6 months of a trial pe-
Stat. 2210 (25 U.S.C. 450); E.O. 11899; 41 FR
riod if one is required by the agency.
3459; Section 352.707 also issued under 5
U.S.C. 7701, et seq. (3) An employee serving under a ca-
reer appointment in the Senior Execu-
tive Service (SES) who is not serving a
otherwise noted.
probationary period.
352.701 Purpose. (b) Employees not entitled. The fol-
lowing employees are not entitled to
This subpart governs reemployment
reemployment rights under this sub-
rights authorized by section 105(i) of
part:
the Indian Self-Determination Act (88
Stat. 2210; Pub. L. 93638, the Act) and (1) An employee who has received a
E.O. 11899 after service in an Indian notice of involuntary separation be-
tribal organization under the Act. cause of reduction in force, or other
cause, not directly related to con-
352.702 Definitions. tracting under the Act to a tribal orga-
In this subpart: nization;
(a) Agency means the Bureau of In- (2) An employee whose resignation
dian Affairs and the Indian Health has been accepted for reasons other
Service. For reemployment purposes, than to accept tribal employment
the Public Health Service shall be con- under this subpart; or
sidered the agency to which Indian (3) An employee serving under a
Health Service employees may return. Schedule C excepted appointment.
(b) Competitive area is the same as de- (c) Not related to other benefits. Enti-
fined in 351.402 of this title. tlement to reemployment rights does
(c) Tribal organization is defined in not depend on continuation of Federal
section 4(c) of the Indian Self-Deter- employee benefits coverage during
mination Act (88 Stat. 2204). service with a tribal organization.
352.703 Basic entitlement to reem- [41 FR 27713, July 6, 1976, as amended at 51

ployment rights on leaving Federal FR 25188, July 11, 1986; 57 FR 10124, Mar. 24,
employment. 1992]
(a) Employees entitled. The following 352.704 Duration of reemployment

employees of the Bureau of Indian Af- rights.
fairs, Department of the Interior, and
(a) Termination of authority. Rights
the Indian Health Service and the Pub-
are not granted to persons who leave
lic Health Service of the Department of
Health and Human Services, are grant- Federal employment for employment
ed reemployment rights subject to the with a tribal organization after the
conditions of this subpart, to the Bu- date (December 31, 1985, at present)
reau of Indian Affairs, the Indian specified in section 105(e) of the Indian
Health Service, or the Public Health Self-Determination Act (88 Stat. 2209).
Service, as appropriate, if they leave (b) Maximum period of entitlement. En-
their Federal employment to be em- titlement to reemployment terminates
ployed, with no break in service fol- at the end of 6 years following the date
lowing separation from their agency, employment commences in the tribal
by an Indian tribal organization to organization unless exercised or other-

work in a function of their respective wise terminated before that time as
agency contracted under the Indian provided in this subpart.
278
352.705 Return to Federal employ- as the position the employee last held
ment. in the agency. The employing agency
(a) Conditions. Reemployment rights determines the position under para-
may be exercised only under the fol- graph (a)(1) (i), (ii), or (iii) of this sec-
lowing conditions. The individual must tion to which the employee is entitled.
apply in writing to the former employ- Reduction-in-force procedures shall be
ing agency for reemployment not later applied where necessary in determining
than 30 calendar days after: the position to which the employee has
(1) Receipt of notice of involuntary a right. In applying the reduction-in-
separation from tribal employment. force regulations, the applicant shall
For this purpose, involuntary separa- be considered an employee of the agen-
tion means any separation against the cy.
will and without consent of the indi- (2) Extending the area. Responsibility
vidual. for reemploying an applicant is nation-
(2) Reversion of the function to Fed- wide within the agency. If the appli-
eral operation, whether reversion is cant is not placed under paragraph
through tribal or Federal action; or (a)(1) of this section, the agency must
(3) Separation with the joint consent extend reemployment rights, based on
of the tribal organization and the Fed- the employees availability, for assign-
eral agency for reasons of personal
ment outside the competitive area. The
hardship or other special cir-
employee is entitled to a position, for
cumstances.
(b) Termination. A former employees which qualified and eligible, at the
entitlement to reemployment termi- same grade or level as the position last
nates for: held in the agency. Where necessary,
(1) Failure to apply for reemploy- reduction-in-force procedures shall be
ment within the time limit stated in applied in determining the position to
paragraph (a) of this section; which the employee has a right. The
(2) Resignation from tribal service applicant shall be considered an em-
without the joint consent, described in ployee for the purpose of applying the
paragraph (a)(3) of this section, of the reduction-in-force regulations.
tribal organization and the Federal em- (b) Employee option. Before the com-
ployer; or petitive area is extended under para-
(3) Failure to accept, within 10 cal- graph (a)(2) of this section, an em-
endar days of receipt thereof, an offer ployee who cannot be placed under
of reemployment made under 352.706 paragraph (a)(1) of this section, in the
which is determined by the employing competitive area at the same grade or
agency or by the Merit Systems Pro- level as the position last held is enti-
tection Board on appeal to be a proper tled, if the employee elects, to reem-
offer of reemployment. ployment in a position at a lower grade
or level identified under the same con-
352.706 Agency response to reem-
ployment application. ditions and procedures as paragraph
(a)(1) of this section.
(a) Employees right to reemployment.
(c) Agency option. At any stage in the
An employee is entitled to be reem-
process, the agency has the option to
ployed by the reemploying agency as
satisfy the employees right to reem-
promptly as possible, and, in any
event, within 45 calendar days after ployment by offering a vacant position
agency receipt of application. which, under reduction-in-force regula-
(1) Within the competitive area the tions, is in accord with the employees
employee is entitled to reemployment rights. Also, with the employees con-
in: sent, right to reemployment can be
(i) The position held immediately be- met by placement in a vacant position,
fore leaving the agency; for which the employee is qualified ac-
(ii) One in the same competitive cording to agency determination, and
level; or available, outside the organizational or
(iii) Another position for which quali- geographic area of entitlement, either
fied and eligible at the same grade or at the appropriate grade or at a grade
level and in the same competitive area other than the one to which entitled.
279
352.707 5 CFR Ch. I (1116 Edition)
(d) Reemployment to an SES position. 352.801 Purpose.

When the employees right is to a posi- This subpart governs reemployment
tion in the SES, reemployment or re- rights authorized by section 11(a) (1)
turn may be to any position in the SES and (2) of the Taiwan Relations Act
for which the employee is qualified. (Pub. L. 968) after service in the Amer-
The employee shall be returned at not ican Institute in Taiwan (AIT) under
less than the SES rate of basic pay as the Act.
determined under 5 CFR part 534, sub-
part D at which the employee was 352.802 Definitions.
being paid immediately before his or
For the purposes of this subpart:
her transfer.
Act refers to Taiwan Relations Act
(e) Basis for agency refusal to reemploy.
(Pub. L. 968).
An agency may refuse to reemploy
Competitive area is the same as de-
when the employee was last separated
fined in 351.402 of this title;
from tribal employment for serious
Institute means the American Insti-
cause establishing unsuitability for re- tute in Taiwan.
employment. Specified period of service shall be a pe-
(f) Basis for agency inability to reem- riod of not more than 6 years.
ploy. An agency may find it is unable
to reemploy in the event no position 352.803 Basic entitlement to reem-
can be found under procedures in this ployment rights on leaving Federal
section. employment.
[41 FR 27713, July 6, 1976, as amended at 51 (a) This subpart applies to all execu-
FR 25188, July 11, 1986] tive agencies as defined in section 105
of title 5, United States Code, the U.S.
352.707 Employee appeals to the Postal Service, the Postal Rate Com-
Merit Systems Protection Board. mission, and to the employees thereof,
(a) If an agency denies reemployment and to those positions in the competi-
to a person claiming reemployment tive civil service and the employees oc-
rights under this subpart, the agency cupying those positions.
shall inform the individual of that de- (b) The agency must give employees
nial and of the reasons therefor by a entitled to reemployment rights under
written notice. In the same notice, the this subpart written notice of these
agency shall inform the employee of rights at the time of their separation.
the right to appeal to the Merit Sys- (c) Employees entitled. The following
tems Protection Board under the provi- employees or former employees are
sions of the Boards regulations. The granted reemployment rights subject
agency shall comply with the provi- to the conditions of this subpart, if
sions of 1201.21 of this title. they leave their Federal employment
(b) If an employee considers reem- to be employed (on the date of incorpo-
ployment to be not in accordance with ration of AIT or within 30 calendar
this subpart, the employee is entitled days following separation from their
to appeal to the Merit Systems Protec- agency) by the Institute for a specified
tion Board under the provisions of the period of service.
Boards regulations. (1) An employee serving in a competi-
(c) Refusal of a tribe to hire a Fed- tive position under a career or career-
eral employee is not appealable to the conditional appointment;
Merit Systems Protection Board. (2) A non-temporary excepted service
[44 FR 48953, Aug. 21, 1979]
employee; or
(3) An employee serving under a ca-
reer appointment in the Senior Execu-
Subpart HReemployment Rights tive Service.
Under the Taiwan Relations Act (d) Employees not entitled. The fol-
lowing employees are not entitled to
AUTHORITY: 22 U.S.C. 3310; E.O. 12143, 44 FR reemployment rights under this sub-
37191; Section 352.807 also issued under 22 part:
U.S.C. 3310; E.O. 12143, 45 FR 37452.
(1) An employee who has received a

SOURCE: 46 FR 8433, Jan. 27, 1981, unless notice of involuntary separation be-
otherwise noted. cause of reduction in force, or other
280
cause, not directly related to employ- rights, based on the agencys need, for
ment with the Institute under the Act; assignment outside the competitive
(2) An employee whose resignation area. The employee is entitled to a po-
has been accepted for reasons other sition, for which qualified and eligible,
than to accept employment with the at the same grade or level as the posi-
Institute under this subpart; tion last held in the agency. Where
(3) An employee serving under a necessary, reduction-in-force proce-
Schedule C excepted appointment; or dures shall be applied in determining
(4) An employee serving under a non- the position to which the employee has
career, limited emergency, or limited a right. The applicant shall be consid-
term appointment in the Senior Execu- ered an employee for the purpose of ap-
tive Service. plying the reduction-in-force proce-
[46 FR 8433, Jan. 27, 1981, as amended at 57 dures.
FR 10124, Mar. 24, 1992] (b) Employee option. Before the com-
petitive area is extended under para-
352.804 Maximum period of entitle-
ment to reemployment. graph (a)(3) of this section, an em-
ployee who cannot be placed under
Entitlement to reemployment termi- paragraph (a)(1) of this section in the
nates at the end of 6 years and 30 days,
same competitive area at the grade or
following the date employment com-
level as the position last held, is enti-
mences in the Institute unless exer-
tled, if the employee elects, to reem-
cised or otherwise terminated before
ployment in a position at a lower grade
that time as provided in this subpart.
or level identified under the same con-
352.805 Position to which entitled on ditions and procedures as paragraph
reemployment. (a)(1) of this section.
(a) Basic position entitlement. (1) On (c) Agency option. At any stage in the
reemployment, an employee is entitled process, the agency has the option to
to be appointed to a position in the em- satisfy the employees right to reem-
ployees former or successor agency in ployment by offering a vacant position
the following order: which, under reduction-in-force regula-
(i) To the position last held in the tions, is in accord with the employees
former agency: rights. Also, with the employees con-
(A) If that position has been identi- sent, right to reemployment can be
fied for transfer to a different agency, met by placement in a vacant position,
reemployment rights must be exercised for which the employee is qualified ac-
with the gaining agency. cording to agency determination and
(B) If that position has been reclassi- need, outside the organizational or geo-
fied, the employee should be placed in graphic area of entitlement, either at
the reclassified position; the appropriate grade or at a grade
(ii) A position in the same competi- other than the one to which entitled.
tive level; or (d) Basic position entitlement in the
(iii) Another position for which oth-
Senior Executive Service. (1) On reem-
erwise qualified at the same grade or
ployment, an employee (who meets the
level and in the same competitive area.
(2) The employing agency determines requirements to 352.803(c)(3)) is enti-
under paragraph (a)(1) of this section the tled to be given a career appointment
position to which the employee is entitled. in the Senior Executive Service the
Reduction-in-force procedures shall be employees former or successor agency.
applied when necessary in determining (2) The employee may be assigned to
the position to which the employee has any position in the Senior Executive
a right. In applying reduction-in-force Service for which he/she meets the
procedures, the applicant shall be con- qualifications requirements.
sidered an employee of the agency. (3) The employee may elect to accept
(3) Extending the area. Responsibility reemployment in a position outside the
for reemploying an applicant is agen- Senior Executive Service. Such place-
cywide. If the applicant is not placed ment would be subject to the provi-
under paragraph (a)(1) of this section, sions of paragraphs (b) and (c) of this
the agency must extend reemployment section.
281
352.806 5 CFR Ch. I (1116 Edition)
352.806 Return to Federal employ- SOURCE: 50 FR 13963, Apr. 9, 1985, unless

ment. otherwise noted.
(a) Conditions: Reemployment rights 352.901 Purpose.
may be exercised only under the fol-
lowing conditions. The employees must This subpart implements section 1203
apply in writing to their former or suc- of the Panama Canal Act of 1979, which
cessor agency: provides for the detail or transfer of
(1) No less that 30 calendar days be- Federal employees to the Panama
fore completion of the specified period Canal Commission with reemployment
of service with the Institute; or rights in the former agency.
(2) No more than 30 calendar days
after involuntary separation from the 352.902 Definitions.
Institute; or In this subpart
(3) No more than 30 calendar days Act means the Panama Canal Act of
after separation based on personal 1979 (22 U.S.C. 3601 et seq.).
hardship or other special cir- Agency means an Executive agency,
cumstances with the consent of Insti- the United States Postal Service, and
tute and former employing agency. the Smithsonian Institution.
(b) An agency must act on the former Commission means the Panama Canal
employees request for reemployment Commission as established by section
within 30 calendar days of receipt 1101 of the Act.
thereof, i.e., the agency must provide Competitive area is defined in 351.402
the employee with a written notice of part 351 of this chapter.
stating the agencys decision whether Competitive level is defined in
to reemploy and the position being of- 351.403(a) of part 351 of this chapter.
fered, if the employee is to be reem- Detail is the assignment of loan of an
ployed. employee to the Commission without
(c) Termination of reemployment rights. the employees transfer. The employee
A former employees entitlement to re- remains an employee of the agency in
employment terminates for: which employed and continues to be
(1) Failure to apply, except for good the incumbent of the position from
cause shown, for reemployment within which detailed.
the time limits stated in paragraph (a) Term of employment means the period
of this section; of employment specified in the written
(2) Resignation from the Institute agreement between the Commission
without the consent of the Institute or and the agency for the transfer of an
the former employing agency; or employee or extension of transfer.
(3) Failure to accept, within 15 work-
Transfer means the change in ap-
days of receipt thereof, an offer of re-
pointment of an employee from an
employment under 352.803 which is de-
agency to a new appointment with the
termined to be a proper offer of reem-
Commission.
ployment by the employing agency and
by Merit Systems Protection Board 352.903 Effecting a detail or transfer.
(MSPB), if appealed.
(a) Authority to approve. The head of
352.807 Appeals. an agency may enter into written
An employee may appeal to MSPB, agreements with the Commission for
under the provisions of the Boards reg- the detail or voluntary transfer, for set
ulations, an agencys decision on his or periods of time, of agency employees to
her request for reemployment which he the Commission in accordance with
or she believes is in violation of this section 3643 of title 22, United States
subpart. Code, and this subpart. Refusal by the
head of the agency to agree to a detail
or transfer, or extension of detail or
Subpart IReemployment Rights transfer, is not reviewable by the Office
After Service With the Pan- of Personnel Management or appeal-
ama Canal Commission
able.
(b) Employee notice. The agency will
AUTHORITY: Pub. L. 9670, 22 U.S.C. 3643. furnish the employee with a copy of
282
the written agreement which must con- 352.906 Termination of transfer.

tain a statement of the time limits for At the conclusion of a term of em-
exercising reemployment rights and ployment agreed upon as provided in
the conditions of reemployment. 352.903, employment with the Commis-
sion may be terminated without regard
to parts 351, 359, 432, 752, or 771 of this
This subpart covers only eligible em- chapter.
ployees transferred or detailed to Com-
mission positions with duty stations in 352.907 Exercise or termination of re-
the Republic of Panama. employment rights.
(a) Employees eligible. Except as pro- (a) Exercise. An individual who has
vided in paragraph (b) of this section, been transferred under this subpart to
an employee serving in a position in an the Commission and wishes to be reem-
agency under any of the following ap- ployed must apply in writing to the
pointments may be granted rights former employing agency. The time
under this subpart: limits for application for reemploy-
(1) Career or career-conditional ap- ment are
pointment in the competitive service; (1) No later than 30 calendar days
after the expiration of the term of em-
(2) An appointment without a specific
ployment with the Commission;
time limit in the excepted service; or
(2) No later than 30 calendar days
(3) A career appointment in the Sen- after receipt of notice of involuntary
ior Executive Service. separation during the term of employ-
(b) Employee not eligible. The fol- ment with the Commission; or
lowing employees are not eligible (3) No later than 30 calendar days
under this subpart: after resignation with the consent of
(1) An employee who is serving a trial the Commission.
period or probationary period under an (b) Termination. Reemployment rights
initial appointment; terminate if the individual
(2) An employee who has received a (1) Fails to apply within the time
proposed notice of involuntary separa- limits stated in paragraph (a) of this
tion (e.g., separation based on reduc- section;
tion in force, adverse action, or per- (2) Resigns without the written con-
formance); sent of the Commission; or
(3) An employee who is serving in a (3) Within 10 calendar days, fails to
position excepted from the competitive accept an offer of reemployment made
service under Schedule C of part 213 of under 352.908 that is determined to be
this chapter, or under Presedential ap- a proper offer of reemployment by the
pointment; or reemploying agency or by the Merit
(4) An employee whose resignation Systems Protection Board on appeal.
has been accepted for reasons other
352.908 Agency obligation.
than to accept employment with the
Commission. (a) Time limits. An employee is to be
reemployed by the reemploying agency
[50 FR 13963, Apr. 9, 1985, as amended at 57 as promptly as possible, but not later
FR 10125, Mar. 24, 1992]
than 30 calendar days after receipt of
the reemployment application or on
352.905 Employees on detail.
termination of the term of employ-
(a) An employee detailed to the Com- ment with the Commission, whichever
mission is subject to the same condi- is later.
tions of employment at his or her em- (b) Conditions. An employee will be
ploying agency as if the employee has reemployed or returned from detail
not been detailed. without loss of pay, seniority, or other
(b) The Commission and the employ- rights or benefits to which the em-
ing agency will arrange for the termi- ployee would have been entitled had he
nation of a detail and the agency will or she not been transferred or detailed.
return the employee to his or her An employee in the Senior Executive

former position or an equivalent one as Service will be reemployed or returned
provided in 352.908 (b) and (c). at not less than the rate at which paid
283
352.909 5 CFR Ch. I (1116 Edition)
immediately before the transfer or de- form the applicant of the right to ap-
tail. An employee who is reemployed is peal to the Merit Systems Protection
not eligible for grade or pay retention Board under the provisions of the
under part 536 of this chapter based on Boards regulations. The agency must
a grade or rate of pay attained while comply with the provisions of 1201.21
employed by the Commission. of this title.
(c) Position to which entitled. (1) If the (b)(1) When an agency has reem-
function with which the employees ployed or returned an employee, it will
former position was identified has been advise the employee of the right of ap-
transferred, the employees right is to peal if he or she considers the reem-
a position in the gaining agency or ac- ployment or return not to be in accord-
tivity. ance with the Act and this subpart.
(2) An employee whose right is to a (2) An employee in a bargaining unit
position in the Senior Executive Serv- covered by a negotiated grievance pro-
ice may be reemployed in or returned cedure that does not exclude this mat-
to any Senior Executive Service posi- ter must use the negotiated grievance
tion in the former agency for which procedure.
qualified. (3) An employee to whom paragraph
(3) All other employees are entitled (b)(2) of this section does not apply is
to be reemployed in or returned to a entitled to appeal to the Merit Systems
position at the same grade or level and Protection Board under the provisions
in the same competitive area as the po- of the Boards regulations. The agency
sition last held in the former agency. If must comply with the provisions of
the reemployment would cause the sep- 1201.21 of this title.
aration or demotion of another em-
ployee, the applicant should be consid- PART 353RESTORATION TO DUTY
ered an employee for the purpose of ap- FROM UNIFORMED SERVICE OR
plying the reduction-in-force regula- COMPENSABLE INJURY
tions to determine to what, if any, po-
sition the employee is entitled. If the Subpart AGeneral Provisions
employee is not placed at the former
grade or level, the agency must extend Sec.
consideration beyond the competitive 353.101 Scope.
area. Responsibility for reemployment 353.102 Definitions.
353.103 Persons covered.
is agencywide.
353.104 Notification of rights and obliga-
(4) Reemployment may be at a higher tions.
grade than that to which the employee 353.105 Maintenance of records.
is entitled if all appropriate standards 353.106 Personnel actions during employees
and requirements are satisfied and if absence.
this will not cause the displacement of 353.107 Service credit upon reemployment.
another employee. 353.108 Effect of performance and conduct
(5) The reemployment obligation on restoration rights.
353.109 Transfer of function to another
may be satisfied by placement in any agency.
position within the agency that is ac- 353.110 OPM placement assistance.
ceptable to the employee.
(d) Agency refusal to reemploy. An Subpart BUniformed Service
agency may refuse to reemploy under
this section only when the employee 353.201 Introduction.
353.202 Discrimination and acts of reprisal
was separated from the Commission for prohibited.
serious cause showing unsuitability for 353.203 Length of service.
reemployment. 353.204 Notice to employer.
353.205 Return to duty and application for
352.909 Appeals. reemployment.
(a) If an agency denies reemployment 353.206 Documentation upon return.
353.207 Position to which restored.
to an applicant who claims reemploy-
353.208 Use of paid time off during uni-
ment rights under this subpart, the formed service.
agency must notify the applicant in 353.209 Retention protections.

writing of that denial and its reasons. 353.210 Department of Labor assistance to
In the same notice, the agency will in- applicants and employees.
284
353.211 Appeal rights. basis that the employee is able to per-
form all the duties of the position he or
Subpart CCompensable Injury she left or an equivalent one.
353.301 Restoration rights. Injury means a compensable injury
353.302 Retention protections. sustained under the provisions of 5
353.303 Restoration rights of TAPER em- U.S.C. chapter 81, subchapter 1, and in-
ployees. cludes, in addition to accidental injury,
353.304 Appeals to the Merit Systems Pro- a disease proximately caused by the
tection Board.
employment.
AUTHORITY: 38 U.S.C. 4301 et. seq., and 5 Leave of absence means military
U.S.C. 8151. leave, annual leave, without pay
SOURCE: 60 FR 45652, Sept. 1, 1995, unless (LWOP), furlough, continuation of pay,
otherwise noted. or any combination of these.
Military leave means paid leave pro-
Subpart AGeneral Provisions vided to Reservists and members of the
National Guard under 5 U.S.C. 6323.
353.101 Scope. Notice means any written or verbal
The rights and obligations of employ- notification of an obligation or inten-
ees and agencies in connection with tion to perform service in the uni-
leaves of absence or restoration to duty formed services provided to an agency
following uniformed service under 38 by the employee performing the service
U.S.C. 4301 et. seq., and restoration or by the uniformed service in which
under 5 U.S.C. 8151 for employees who the service is to be performed.
sustain compensable injuries, are sub- Partially recovered means an injured
ject to the provisions of this part. Sub- employee, though not ready to resume
part A covers those provisions that are the full range of his or her regular du-
common to both of the above groups of ties, has recovered sufficiently to re-
employees. Subpart B deals with provi- turn to part-time or light duty or to
sions that apply just to uniformed another position with less demanding
service and subpart C covers provisions physical requirements. Ordinarily, it is
that pertain just to injured employees. expected that a partially recovered em-
ployee will fully recover eventually.
353.102 Definitions. Physically disqualified means that:
In this part: (1)(i) For medical reasons the em-
Agency means. ployee is unable to perform the duties
(1) With respect to restoration fol- of the position formerly held or an
lowing a compensable injury, any de- equivalent one, or
partment, independent establishment, (ii) There is a medical reason to re-
agency, or corporation in the executive strict the individual from some or all
branch, including the U.S. Postal Serv- essential duties because of possible in-
ice and the Postal Rate Commission, capacitation (for example, a seizure) or
and any agency in the legislative or ju- because of risk of health impairment
dicial branch; and (such as further exposure to a toxic
(2) With respect to uniformed service, substance for an individual who has al-
an executive agency as defined in 5 ready shown the effects of such expo-
U.S.C. 105 (other than an intelligence sure).
agency referred to in 5 U.S.C. (2) The condition is considered per-
2302(a)(2)(C)(ii), including the U.S. manent with little likelihood for im-
Postal Service and Postal Rate Com- provement or recovery.
mission, a nonappropriated fund in- Reasonable efforts in the case of ac-
strumentality of the United States, or tions required by an agency for a per-
a military department as defined in 5 son returning from uniformed service
U.S.C. 102. In the case of a National means actions, including training, that
Guard technician employed under 32 do not place an undue hardship on the
U.S.C. 709, the employing agency is the agency.
adjutant general of the State in which Service in the uniformed services means
the technician is employed. the performance of duty on a voluntary

Fully recovered means compensation or involuntary basis in a uniformed
payments have been terminated on the service under competent authority and
285
353.103 5 CFR Ch. I (1116 Edition)
includes active duty, active duty for instrumentally wholly owned by the
training, initial active duty for train- United States, who was separated or
ing, inactive duty training, full-time furloughed from an appointment with-
National Guard duty, and a period for out time limitation, or from a tem-
which a person is absent from employ- porary appointment pending establish-
ment for the purpose of examination to ment of a register (TAPER) as a result
determine fitness to perform such of a compensable injury; but do not in-
duty. clude
Status means the particular at- (1) A commissioned officer of the
tributes of a specific position. This in- Regular Corps of the Public Health
cludes the rank or responsibility of the Service;
position, its duties, working condi- (2) A commissioned officer of the Re-
tions, pay, tenure, and seniority. serve Corps of the Public Health Serv-
Undue hardship means actions taken ice on active duty; or
by an agency requiring significant dif- (3) A commissioned officer of the Na-
ficulty or expense, when considered in tional Oceanic and Atmospheric Ad-
light of ministration.
(1) The nature and cost of actions [60 FR 45652, Sept. 1, 1995, as amended at 64
needed under this part; FR 31487, June 11, 1999]
(2) The overall financial resources of
the facility involved in taking the ac- 353.104 Notification of rights and ob-
tion; the number of persons employed ligations.
at the facility; the effect on expenses When an agency separates, grants a
and resources, or the impact otherwise leave of absence, restores or fails to re-
of the action on the operation of the fa- store an employee because of uni-
cility; and formed service or compensable injury,
(3) The overall size of the agency it shall notify the employee of his or
with respect to the number of employ- her rights, obligations, and benefits re-
ees, the number, type, and location of lating to Government employment, in-
its facilities and type of operations, including any appeal and grievance
cluding composition, structure, and rights. However, regardless of notifica-
functions of the work force. tion, an employee is still required to
Uniformed services means the Armed exercise due diligence in ascertaining
Forces, the Army National Guard and his or her rights, and to seek reemploy-
the Air National Guard when engaged ment within the time limits provided
in active duty for training, inactive by chapter 43 of title 38, United States
duty training, or full-time National Code, for restoration after uniformed
Guard duty, the Commissioned Corps of service, or as soon as he or she is able
the Public Health Service, and any after a compensable injury.
other category of persons designated
by the President in time of war or 353.105 Maintenance of records.
emergency. Each agency shall identify the posi-
tion vacated by an employee who is in-
353.103 Persons covered. jured or leaves to enter uniformed serv-
(a) The provisions of this part per- ice. It shall also maintain the nec-
taining to the uniformed services cover essary records to ensure that all such
each agency employee who enters into employees are preserved the rights and
such service regardless of whether the benefits granted by law and this part.
employee is located in the United
States or overseas. However, an em- 353.106 Personnel actions during em-
ployee serving under a time-limited ap- ployees absence.
pointment completes any unexpired (a) An employee absent because of
portion of his or her appointment upon service in the uniformed services is to
return from uniformed service. be carried on leave without pay unless
(b) The provisions of this part con- the employee elects to use other leave
cerning employee injury cover a civil or freely and knowingly provides writ-
officer or employee in any branch of ten notice of intent not to return to a

the Government of the United States, position of employment with the agen-
including an officer or employee of an cy, in which case the employee can be
286
separated. (NOTE: A separation under loss of their positions. Thus, an em-

this provision affects only the employ- ployee may not be denied restoration
ees seniority while gone; it does not rights because of poor performance or
affect his or her restoration rights.) conduct that occurred prior to the em-
(b) An employee absent because of ployees departure for compensable in-
compensable injury may be carried on jury or uniformed service. However,
leave without pay or separated unless separation for cause that is substan-
the employee elects to use sick or an- tially unrelated to the injury or to the
nual leave. performance of uniformed service ne-
(c) Agency promotion plans must gates restoration rights. Additionally,
provide a mechanism by which employ-
if during the period of injury or uni-
ees who are absent because of compen-
formed service the employees conduct
sable injury or uniformed service can
is such that it would disqualify him or
be considered for promotion. In addi-
tion, agencies have an obligation to her for employment under OPM or
consider employees absent on military agency regulations, restoration rights
duty for any incident or advantage of may be denied.
employment that they may have been
353.109 Transfer of function to an-
entitled to had they not been absent. other agency.
This is determined by:
(1) Considering whether the incident If the function of an employee absent
or advantage is one generally granted because of uniformed service or com-
to all employees in that workplace and pensable injury is transferred to an-
whether it was denied solely because of other agency, and if the employee
absence for military service; would have been transferred with the
(2) Considering whether the person function under part 351 of this chapter
absent on military duty was treated had he or she not been absent, the em-
the same as if the person had remained ployee is entitled to be placed in a po-
at work; and sition in the gaining agency that is
(3) Considering whether it was rea- equivalent to the one he or she left. It
sonably certain that the benefit would shall also assume the obligation to re-
have accrued to the employee but for store the employee in accordance with
the absence for military service. law and this part.
FR 31487, June 11, 1999] 353.110 OPM placement assistance.
(a) Employee returning from uniformed
353.107 Service credit upon reem- service. (1) OPM will offer placement in
ployment.
the executive branch to the following
Upon reemployment, an employee ab- categories of employees upon notifica-
sent because of uniformed service or tion by the agency and application by
compensable injury is generally enti- the employee: (Such notification
tled to be treated as though he or she should be sent to the Associate Direc-
had never left. This means that a per- tor for Employment, OPM, 1900 E
son who is reemployed following uni- Street, NW., Washington, DC 20415.)
formed service or full recovery from
(i) Executive branch employees
compensable injury receives credit for
(other than an employee of an intel-
the entire period of the absence for
ligence agency) when OPM determines
purposes of rights and benefits based
that:
upon seniority and length of service,
including within-grade increases, ca- (A) their agencies no longer exist and
reer tenure, completion of probation, the functions have not been trans-
leave rate accrual, and severance pay. ferred, or;
(B) it is otherwise impossible or un-
353.108 Effect of performance and reasonable for their former agencies to
conduct on restoration rights. place them;
The laws covered by this part do not (ii) Legislative and judicial branch
permit an agency to circumvent the employees when their employers deter-

protections afforded by other laws to mine that it is impossible or unreason-
employees who face the involuntary able to reemploy them;
287
353.201 5 CFR Ch. I (1116 Edition)
(iii) National Guard technicians when Subpart BUniformed Service

the Adjutant General of a State deter-
mines that it is impossible or unrea- 353.201 Introduction.
sonable to reemploy a technician oth- The Uniformed Services Employment
erwise eligible for restoration under 38 and Reemployment Rights Act of 1994
U.S.C. 4304 and 4312 (pertaining to char- revised and strengthened the existing
acter and length of service), and the Veterans Reemployment Rights law,
technician is a noncareer military made the Department of Labor respon-
member who was separated sible for investigating employee com-
invountarily from the Guard for rea- plaints, required OPM to place certain
sons beyond his or her control; and returning employees in other agencies,
(iv) Employees of the intelligence established a separate restoration
agencies (defined in 5 U.S.C. rights program for employees of the in-
2302(a)(2)(C)(ii)) when their agencies de- telligence agencies, and altered the ap-
termine that it is impossible or unrea- peals rights process. The new law ap-
sonable to reemploy them. plies to persons exercising restoration
(2) OPM will determine if a vacant rights on or after December 12, 1994.
position equivalent (in terms of pay,
grade, and status) to the one the indi- 353.202 Discrimination and acts of
vidual left exists, for which the indi- reprisal prohibited.
vidual is qualified, in the commuting A person who seeks or holds a posi-
area in which he or she was employed tion in the Executive branch may not
immediately before entering the uni- be denied hiring, retention in employ-
formed services. If such a vacancy ex- ment, or any other incident or advan-
ists, OPM will order the agency to tage of employment because of any ap-
place the individual. If no such position plication, membership, or service in
is available, the individual may elect the uniformed services. Furthermore,
to be placed in a lesser position in the an agency may not take any reprisal
commuting area, or OPM will attempt against an employee for taking any ac-
to place the individual in an equivalent tion to enforce a protection, assist or
position in another geographic location participate in an investigation, or exer-
determined by OPM. If the individual cise any right provided for under chap-
declines an offer of equivalent employ- ter 43 of title 38, United States Code.
ment, he or she has no further restora-
tion rights. 353.203 Length of service.
(b) Employee returning from compen- (a) Counting service after the effective
sable injury. OPM will provide place- date of USERRA (12/12/94). To be enti-
ment assistance to an employee with tled to restoration rights under this
restoration rights in the executive, leg- part, cumulative service in the uni-
islative, or judicial branches who can- formed services while employed by the
not be placed in his or her former agen- Federal Government may not exceed 5
cy and who either has competitive sta- years. However, the 5-year period does
tus or is eligible to acquire it under 5 not include any service
U.S.C. 3304(C). If the employees agency (1) That is required beyond 5 years to
is abolished and its functions are not complete an initial period of obligated
transferred, or it is not possible for the service;
employee to be restored in his or her (2) During which the individual was
former agency, the employee is eligible unable to obtain orders releasing him
for placement assistance under the or her from service in the uniformed
Interagency Career Transition Assist- services before expiration of the 5-year
ance Plan (ICTAP) under part 330, sub- period, and such inability was through
part G, of this chapter. This paragraph no fault of the individual;
does not apply to an employee serving (3) Performed as required pursuant to
under a temporary appointment pend- 10 U.S.C. 10147, under 32 U.S.C. 502(a) or
ing establishment of a register 503, or to fulfill additional training re-
(TAPER). quirements determined and certified in
[60 FR 45652, Sept. 1, 1995, as amended at 64 writing by the Secretary of the mili-
FR 31487, June 11, 1999; 66 FR 29897, June 4, tary department concerned to be nec-
2001] essary for professional development or
288
for completion of skill training or re- prior to December 12 would not count
training; in computing the 5-year total, but all
(4) Performed by a member of a uni- service beginning with that date would
formed service who is: count.
(i) Ordered to or retained on active (c) Nature of Reserve service and resolv-
duty under sections 12301(a), 12301(g), ing conflicts. An employee who is a
12302, 12304, 12305, or 688 of title 10, member of the Reserve or National
United States Code, or under 14 U.S.C. Guard has a dual obligationto the
331, 332, 359, 360, 367, or 712; military and to his or her employer.
(ii) Ordered to or retained on active Given the nature of the employees
duty (other than for training) under service obligation, some conflict with
any provision of law during a war or job demands is often unavoidable and a
during a national emergency declared good-faith effort on the part of both
by the President or the Congress, as de- the employee and the agency is needed
termined by the Secretary concerned. to minimize conflict and resolve dif-
(iii) Ordered to active duty (other ferences. Some accommodation may be
than for training) in support, as deter- necessary by both parties. Most Re-
mined by the Secretary of the military serve component members are re-
department concerned, of an oper-
quired, as a minimum, to participate in
ational mission for which personnel
drills for 2 days each month and in 2
have been ordered to active duty under
weeks of active duty for training per
10 U.S.C. 12304;
year. But some members are required
(iv) Ordered to active duty in sup-
to participate in longer or more fre-
port, as determined by the Secretary of
the military department concerned, of quent training tours. USERRA makes
a critical mission or requirement of it clear that the timing, frequency, du-
the uniformed services, or ration, and nature of the duty per-
(v) Called into Federal service as a formed is not an issue so long as the
member of the National Guard under employee gave proper notice, and did
chapter 15 or under section 12406 of not exceed the time limits specified.
title 10, United States Code. However, to the extent that the em-
(b) Counting service prior to the effec- ployee has influence upon the timing,
tive date of USERRA. In determining frequency, or duration of such training
the 5-year total that may not be ex- or duty, he or she is expected to use
ceeded for purposes of exercising res- that influence to minimize the burden
toration rights, service performed prior upon the agency. The employee is ex-
to December 12, 1994, is considered only pected to provide the agency with as
to the extent that it would have count- much advance notice as possible when-
ed under the previous law (the Vet- ever military duty or training will
erans Reemployment Rights statute). interfere with civilian work. When a
For example, the service of a National conflict arises between the Reserve
Guard technician who entered on an duty and the legitimate needs of the
Active Guard Reserve (AGR) tour employer, the agency may contact ap-
under section 502(f) of title 32, United propriate military authorities to ex-
States Code, was not counted toward press concern. Where the request would
the 4-year time limit under the pre- require the employee to be absent from
vious statute because it was specifi- work for an extended period, during
cally considered active duty for train- times of acute need, or when, in light
ing. However, title 32, section 502(f) of previous leaves, the requested leave
AGR service is not exempt from the cu- is cumulatively burdensome, the agen-
mulative time limits allowed under cy may contact the military com-
USERRA and service after the effective mander of the employees military unit
date counts under USERRA rules. to determine if the military duty could
Thus, if a technician was on a 32 U.S.C. be rescheduled or performed by another
502(f) AGR tour on October 13, 1994, (the member. If the military authorities de-
date USERRA was signed into law), but termine that the military duty cannot
exercised restoration rights after De- be rescheduled or cancelled, the agency

cember 11, 1994, (the date USERRA be- is required to permit the employee to
came fully effective), AGR service perform his or her military duty.
289
353.204 5 CFR Ch. I (1116 Edition)
(d) Mobilization authority. By law, riod of service. (If submitting the ap-
members of the Selected Reserve (a plication is impossible or unreasonable
component of the Ready Reserve), can through no fault of the individual, it
be called up under a presidential order must be submitted the next full cal-
for purposes other than training for as endar day when it becomes possible to
long as 270 days. If the President de- do so.)
clares a national emergency, the re- (c) If the period of service was for
mainder of the Ready Reservethe In- more than 180 days, the employee must
dividual Ready Reserve and the Inac- submit an application for reemploy-
tive National Guardmay be called up. ment not later than 90 days after com-
The Ready Reserve as a whole is sub- pleting the period of service.
ject to as much as 24 consecutive (d) An employee who is hospitalized
months of active duty in a national or convalescing from an injury or ill-
emergency declared by the President. ness incurred in, or aggravated during
[60 FR 45652, Sept. 1, 1995, as amended at 64 uniformed service is required to report
FR 31487, June 11, 1999] for duty at the end of the period that is
necessary for the person to recover,
353.204 Notice to employer. based on the length of service as dis-
To be entitled to restoration rights cussed in paragraphs (a), (b), and (c) of
under this part, an employee (or an ap- this section, except that the period of
propriate officer of the uniformed serv- recovery may not exceed 2 years (ex-
ice in which service is to be performed) tended by the minimum time required
must give the employer advance writ- to accommodate circumstances beyond
ten or verbal notice of the service ex- the employees control which make re-
cept that no notice is required if it is porting within the period specified im-
precluded by military necessity or, possible or unreasonable).
under all relevant circumstances, the (e) A person who does not report
giving of notice is otherwise impossible within the time limits specified does
or unreasonable. not automatically forfeit restoration
rights, but, rather, is subject to what-
353.205 Return to duty and applica- ever policy and disciplinary action the
tion for reemployment. agency would normally apply for a
Periods allowed for return to duty similar absence without authorization.
are based on the length of time the per-
son was performing service in the uni- 353.206 Documentation upon return.
formed services, as follows: Upon request, a returning employee
(a) An employee whose uniformed who was absent for more than 30 days,
service was for less than 31 days, or who or was hospitalized or convalescing
was absent for the purpose of an exam- from an injury or illness incurred in or
ination to determine fitness for the aggravated during the performance of
uniformed services, is required to re- service in the uniformed services, must
port back to work not later than the provide the agency with documenta-
beginning of the first regularly sched- tion that establishes the timeliness of
uled work day on the first full calendar the application for reemployment, and
day following completion of the period length and character of service. If doc-
of service and the expiration of 8 hours umentation is unavailable, the agency
after a period allowing for the safe must restore the employee until docu-
transportation of the employee from mentation becomes available.
the place of service to the employees
residence, or as soon as possible after 353.207 Position to which restored.
the expiration of the 8-hour period if (a) Timing. An employee returning
reporting within the above period is from the uniformed services following
impossible or unreasonable through no an absence of more than 30 days is enti-
fault of the employee. tled to be restored as soon as possible
(b) If the service was for more than 30 after making application, but in no
but less than 181 days, the employee event later than 30 days after receipt of
must submit an application for reem- the application by the agency.

ployment with the agency not later (b) Nondisabled. If the employees uni-
than 14 days after completing the pe- formed service was for less than 91
290
days, he or she must be employed in 353.208 Use of paid time off during
the position for which qualified that he uniformed service.
or she would have attained if continu- An employee performing service with
ously employed. If not qualified for the uniformed services must be per-
this position after reasonable efforts by mitted, upon request, to use any ac-
the agency to qualify the employee, he crued annual leave under 5 U.S.C. 6304,
or she is entitled to be placed in the po- military leave under 5 U.S.C. 6323,
sition he or she left. For service of 91 earned compensatory time off for trav-
days or more, the agency has the op- el under 5 U.S.C. 5550b, or sick leave
tion of placing the employee in a posi- under 5 U.S.C. 6307, if appropriate, dur-
tion of like seniority, status, and pay. ing such service.
(NOTE: Upon reemployment, a term em- [72 FR 62767, Nov. 7, 2007]
ployee completes the unexpired portion
of his or her original appointment.) If 353.209 Retention protections.
unqualified (for any reason other than (a) During uniformed service. An em-
disability incurred in or aggravated ployee may not be demoted or sepa-
during service in the uniformed serv- rated (other than military separation)
ices) after reasonable efforts by the while performing duty with the uni-
agency to qualify the employee for formed services except for cause. (Re-
such position or the position the em- duction in force is not considered for
ployee left, he or she must be restored cause under this subpart.) He or she is
to any other position of lesser status not a competing employee under
and pay for which qualified, with full 351.404 of this chapter. If the employ-
seniority. ees position is abolished during such
(c) Disabled. An employee with a dis- absence, the agency must reassign the
employee to another position of like
ability incurred in or aggravated dur-
status, and pay.
ing uniformed service and who, after
(b) Upon reemployment. Except in the
reasonable efforts by the agency to ac- case of an employee under time-limited
commodate the disability, is entitled appointment who finishes out the un-
to be placed in another position for expired portion of his or her appoint-
which qualified that will provide the ment upon reemployment, an employee
employee with the same seniority, sta- reemployed under this subpart may not
tus, and pay, or the nearest approxima- be discharged, except for cause
tion consistent with the circumstances (1) If the period of uniformed service
in each case. The agency is not re- was more than 180 days, within 1 year;
quired to reemploy a disabled employee and
if, after making due efforts to accom- (2) If the period of uniformed service
modate the disability, such reemploy- was more than 30 days, but less than
ment would impose an undue hardship 181 days, within 6 months.
on the agency.
353.210 Department of Labor assist-
(d) Two or more persons entitled to res- ance to applicants and employees.
toration in the same position. If two or
more persons are entitled to restora- USERRA requires the Department of
tion in the same position, the one who Labors Veterans Employment and
Training Service [VETS] to provide
left the position first has the prior
employment and reemployment assist-
right to restoration in that position.
ance to any Federal employee or appli-
The other employee(s) is entitled to be
cant who requests it. VETS staff will
placed in a position as described in attempt to resolve employment dis-
paragraphs (b) and (c) of this section. putes brought to investigate. If dispute
(e) Relationship to an entitlement based resolution proves unsuccessful, VETS
on veterans preference. An employees will, at the request of the employee,
right to restoration under this part refer the matter to the Office of the
does not entitle the person to reten- Special Counsel for representation be-
tion, preference, or displacement rights fore the Merit Systems Protection
over any person with a superior claim Board (MSPB).

based on veterans preference. [64 FR 31487, June 11, 1999]
291
353.211 5 CFR Ch. I (1116 Edition)
353.211 Appeal rights. immediately upon the cessation of

compensation.
An individual who believes an agency
(b) Fully recovered after 1 year. An em-
has not complied with the provisions of
ployee who separated because of a com-
law and this part relating to the em- pensable injury and whose full recovery
ployment or reemployment of the per- takes longer than 1 year from the date
son by the agency may eligibility for compensation began (or
(a) File a complaint with the Depart- from the time compensable disability
ment of Labor, as noted in 353.210, or recurs if the recurrence begins after
(b) Appeal directly to MSPB if the in- the injured employee resumes regular
dividual chooses not to file a complaint full-time employment with the United
with the Department of Labor, or is in- States), is entitled to priority consider-
formed by either Labor or the Office of ation, agencywide, for restoration to
the Special Counsel that they will not the position he or she left or an equiva-
pursue to the case. However, National lent one provided he or she applies for
Guard technicians do not have the reappointment within 30 days of the
right to appeal to MSPB a denial of re- cessation of compensation. Priority
employment rights by the Adjutant consideration is accorded by entering
General. Technicians may file com- the individual on the agencys reem-
plaints with the appropriate district ployment priority list for the competi-
court in accordance with 38 U.S.C. 4323 tive service or reemployment list for
(USERRA). the excepted service. If the individual
cannot be placed in the former com-
FR 31487, June 11, 1999] muting area, he or she is entitled to
priority consideration for an equiva-
lent position elsewhere in the agency.
Subpart CCompensable Injury (See parts 302 and 330 of this chapter
for more information on how this may
353.301 Restoration rights.
be accomplished for the excepted and
(a) Fully recovered within 1 year. An competitive services, respectively.)
employee who fully recovers from a This subpart also applies when an in-
compensable injury within 1 year from jured employee accepts a lower-graded
the date eligibility for compensation position in lieu of separation and sub-
began (or from the time compensable sequently fully recovers.
disability recurs if the recurrence be- (c) Physically disqualified. An indi-
gins after the employee resumes reg- vidual who is physically disqualified
ular full-time employment with the for the former position or equivalent
United States), is entitled to be re- because of a compensable injury, is en-
stored immediately and uncondition- titled to be placed in another position
ally to his or her former position or an for which qualified that will provide
equivalent one. Although these res- the employee with the same status,
toration rights are agencywide, the and pay, or the nearest approximation
employees basic entitlement is to the thereof, consistent with the cir-
former position or equivalent in the cumstances in each case. This right is
local commuting area the employee agencywide and applies for a period of
left. If a suitable vacancy does not 1 year from the date eligibility for
exist, the employee is entitled to dis- compensation begins. After 1 year, the
place an employee occupying a con- individual is entitled to the rights ac-
tinuing position under temporary ap- corded individuals who fully or par-
pointment or tenure group III. If there tially recover, as applicable.
is no such position in the local com- (d) Partially recovered. Agencies must
muting area, the agency must offer the make every effort to restore in the
employee a position (as described local commuting area, according to the
above) in another location. This para- circumstances in each case, an indi-
graph also applies when an injured em- vidual who has partially recovered
ployee accepts a lower-grade position from a compensable injury and who is
in lieu of separation and subsequently able to return to limited duty. At a

fully recovers. A fully recovered em- minimum, this would mean treating
ployee is expected to return to work these employees substantially the
292
same as other handicapped individuals appeal the agencys failure to credit

under the Rehabilitation Act of 1973, as time spent on compensation for pur-
amended. (See 29 U.S.C. 791(b) and 794.) poses of rights and benefits based upon
If the individual fully recovers, he or length of service.
she is entitled to be considered for the
position held at the time of injury, or PART 359REMOVAL FROM THE
an equivalent one. A partially recov- SENIOR EXECUTIVE SERVICE;
ered employee is expected to seek re-
employment as soon as he or she is
GUARANTEED PLACEMENT IN
able. OTHER PERSONNEL SYSTEMS
353.302 Retention protections. Subpart A [Reserved]
An injured employee enjoys no spe-
Subpart BGeneral Provisions
cial protection in a reduction in force.
Separation by reduction in force or for Sec.
cause while on compensation means 359.201 Regulatory requirements.
the individual has no restoration 359.202 Definitions.
rights.
Subpart C [Reserved]
353.303 Restoration rights of TAPER
employees. Subpart DRemoval of Career Appointees
An employee serving in the competi- During Probation
tive service under a temporary ap-
359.401 General exclusions.
pointment pending establishment of a
359.402 Removal: Unacceptable perform-
register (TAPER) under 316.201 of this ance.
chapter (other than an employee serv- 359.403 Removal: Conduct.
ing in a position classified above GS 359.404 Removal: Conditions arising before
15), is entitled to be restored to the po- appointment.
sition he or she left or an equivalent 359.405 Removal: Reduction in force.
one in the same commuting area. 359.406 Restrictions.
359.407 Appeals.
353.304 Appeals to the Merit Systems
Protection Board. Subpart ERemoval of Career Appointees
(a) Except as provided in paragraphs for Less Than Fully Successful Execu-
(b) and (c) of this section, an injured tive Performance
employee or former employee of an
359.501 General.
agency in the executive branch (includ-
359.502 Procedures.
ing the U.S. Postal Service and the
359.503 Restrictions.
Postal Rate Commission) may appeal
359.504 Appeals.
to the MSPB an agencys failure to re-
store, improper restoration, or failure Subpart FRemoval of Career Appointees
to return an employee following a as a Result of Reduction in Force
leave of absence. All appeals must be
submitted in accordance with MSPBs 359.601 General.
regulations. 359.602 Agency reductions in force.
(b) An individual who fully recovers 359.603 OPM priority placement.
from a compensable injury more than 1 359.604 Removal from the SES and place-
year after compensation begins may ment rights outside the SES.
appeal to MSPB as provided for in 359.605 Notice requirements.
parts 302 and 330 of this chapter for ex- 359.606 Appeals.
cepted and competitive service employ- 359.607 Records.
ees, respectively. 359.608 Transfer of function.
(c) An individual who is partially re-
Subpart GGuaranteed Placement
covered from a compensable injury
may appeal to MSPB for a determina- 359.701 Coverage.
tion of whether the agency is acting ar- 359.702 Placement rights.
bitrarily and capriciously in denying 359.703 Responsibility for placement.

restoration. Upon reemployment, a 359.704 Restrictions.
partially recovered employee may also 359.705 Pay.
293
359.201 5 CFR Ch. I (1116 Edition)
Subpart HFurloughs in the Senior Subpart DRemoval of Career

Executive Service Appointees During Probation
359.401 General exclusions.
359.803 Competition. This subpart does not apply to the re-
359.804 Length of furlough. moval of a career appointee during pro-
359.805 Appeals. bation when
359.806 Notice. (a) The action is initiated under 5
359.807 Records. U.S.C. 1206(g) or 5 U.S.C. 7542;
(b) The removal is effected under sub-
Subpart IRemoval of Noncareer and Lim- part C of this part for failure to be re-
ited Appointees and Reemployed An- certified; or
nuitants (c) The appointee is a reemployed an-
359.901 Coverage. nuitant. See subpart I of this part for
359.902 Conditions of removal. removal of a reemployed annuitant.
AUTHORITY: 5 U.S.C. 1302, 3302, and 3596, un- [56 FR 172, Jan. 3, 1991]
359.402 Removal: Unacceptable per-
SOURCE: 54 FR 18876, May 3, 1989, unless formance.
otherwise noted.
(a) Coverage. This section covers the
removal of a career appointee from the
Subpart A [Reserved] SES during the probationary period for
unacceptable performance.
Subpart BGeneral Provisions (b) Basis for action. A removal under
this section need not be based upon a
359.201 Regulatory requirements. final rating under the agencys SES
This part contains the regulations of performance appraisal system estab-
the Office of Personnel Management lished under subpart C of part 430 of
(OPM) that implement subchapter V of this chapter. Even if a removal is based
chapter 35 of title 5, United States on such a rating, the removal action is
Code, on the Senior Executive Service taken under this section.
(SES). (c) Procedures. The agency shall no-
tify the appointee in writing before the
359.202 Definitions. effective date of the action. The notice
shall, as a minimum
Agency, Senior Executive Service posi-
(1) State the agencys conclusions as
tion, senior executive, career appointee, to the inadequacies of the appointees
limited emergency appointee, limited term performance;
appointee, and noncareer appointee, are (2) State whether the appointee has
defined in 5 U.S.C. 3132(a). placement rights under 359.701 and, if
Probation and probationary period so, identify the position to which the
mean the 1-year probation required by appointee will be assigned; and
5 U.S.C. 3393(d) upon initial career ap- (3) Show the effective date of the ac-
pointment to the SES. tion.
Reemployed annitant means an indi-
vidual who is receiving an annuity 359.403 Removal: Conduct.
under the Civil Service Retirement (a) Coverage. (1) This section covers
System or the Federal Employees Re- the removal of a career appointee from
tirement System on the basis of his or the SES during the probationary pe-
her former Federal service. A reem- riod for misconduct, neglect of duty,
ployed annuitant serves at the pleasure malfeasance, or failure to accept a di-
of the appointing authority. rected reassignment or to accompany a
position in a transfer of function.
Subpart C [Reserved] (2) This section does not apply, how-
ever, when the appointee was covered

under 5 U.S.C. 7511 immediately before
appointment to the SES. In that case,
294
the removal is subject to the provisions outside the SES and, if so, the position
of part 752, subpart F, of this chapter. to which the appointee will be as-
(b) Procedures. The agency shall no- signed;
tify the appointee in writing before the (2) The effective date of the action;
effective date of the action. The notice (3) The appointees appeal rights, in-
shall, as a minimum cluding the time limit for appeal and
(1) State the basis for the removal ac- the location of the Merit System Pro-
tion (including the act(s) of mis- tection Board office to which an appeal
conduct, neglect of duty, or malfea- should be sent; and
sance if those factors are involved); and (4) Such other information as may be
(2) Show the effective date of the ac- required by OPM.
tion.
359.406 Restrictions.
359.404 Removal: Conditions arising (a) Removal from the SES under
before appointment. 359.402 through 359.404 may not be
(a) Coverage. (1) This section covers made effective within 120 days after
the removal of a career appointee from (1) The appointment of a new agency
the SES during the probationary pe- head; or
riod when the action is based in whole (2) The appointment in the agency of
or in part on conditions arising before the career appointees most immediate
the appointment. supervisor who
(2) This section does not apply, how- (i) Is a noncareer appointee; and
ever, when the career appointee was (ii) Has the authority to remove the
covered under 5 U.S.C. 7511 imme- career appointee.
diately before appointment to the SES. (b) For purposes of this section, a
In that case, the removal is subject to noncareer appointee includes an SES
the provisions of part 752, subpart F, of noncareer or limited appointee, an ap-
this chapter. pointee in a position filled by Schedule
(b) Procedures. (1) The agency shall C, or an appointee in an Executive
give the appointee an advance written Schedule or equivalent position other
notice stating the specific reasons for than a career Executive Schedule or
the proposed removal. equivalent position.
(2) The appointee shall be given a (c) The restrictions in paragraph (a)
reasonable time to reply. of this section do not apply
(3) The agency shall give the ap- (1) When the career appointee has re-
pointee a written decision showing the ceived a final rating of unsatisfactory
reasons for the action and the effective under the performance appraisal sys-
date. The decision shall be given to the tem established by the agency under
appointee at or before the time the ac- subchapter II of chapter 43 of title 5,
tion will be made effective. United States Code, before the appoint-
ment of a new agency head or the ap-
359.405 Removal: Reduction in force. pointment of the career appointees
(a) Coverage. This section covers the most immediate noncareer supervisor
removal of a career appointee from the who has the authority to remove the
SES during the probationary period career appointee;
under a reduction in force. (2) To a disciplinary action initiated
(b) Basis for action. The appointee before the appointment of a new agen-
must have been identified for removal cy head or the appointment of the ca-
from the SES under competitive proce- reer appointees most immediate non-
dures established by the agency in ac- career supervisor who has the author-
cordance with the requirements of 5 ity to remove the career appointee;
U.S.C. 3595(a). Removal action shall be (3) To a disciplinary action when
taken under 5 U.S.C. 3592(a). there is a reasonable cause to believe
(c) Procedures. The agency shall no- that the career appointee has com-
tify the appointee in writing before the mitted a crime for which a sentence of
effective date of the action. The notice imprisonment can be imposed; or
shall state, as a minimum (4) To a disciplinary action when the

(1) Whether the appointee has place- circumstances are such that retention
ment rights under 359.701 to a position of the career appointee
295
359.407 5 CFR Ch. I (1116 Edition)
(i) May pose a threat to the ap- (ii) A career appointee who is not re-
pointee or others; quired to serve a probationary period
(ii) May result in loss of or damage to in the SES.
Government property; or (2) This subpart does not cover, how-
(iii) May otherwise jeopardize legiti- ever, a career appointee who is serving
mate Government interests. as a reemployed annuitant. See subpart
(d) The following procedures must be I of this part for removal of a reem-
observed when an agency invokes an ployed annuitant.
exception to the 120-day restriction (b) Definitions(1) Final rating means
under paragraphs (c)(3) or (c)(4) of this the rating of record made by an ap-
section: pointing authority under the SES per-
formance appraisal system in accord-
(1) The agency shall include in the
ance with the requirements of 5 U.S.C.
notice the reasons for invoking the ex-
4314(c)(3) and part 430, subpart C, of
ception.
this chapter.
(2) The appointee shall be given a (2) A less than fully successful final
reasonable time, but no less than 7 rating means a rating of unsatisfactory
days, to respond regarding the pro- or minimally satisfactory.
priety of the use of the exception. (c) Optional removal from the SES. The
(3) The agency shall give the ap- agency may remove a career appointee
pointee a notice of decision on the pro- from the SES after the appointee has
priety of the use of the exception at or been given one final rating of unsatis-
before the time the action will be effec- factory.
tive. (d) Mandatory removal from the SES.
(4) When circumstances require im- The agency must remove a career ap-
mediate action, the agency may place pointee from the SES after
the appointee in a nonduty status with (1) The appointee has been given two
pay for such time as necessary to effect final ratings of unsatisfactory within 5
the action. consecutive years; or
(e) The imposition of the 120-day (2) The appointee has been given two
moratorium does not extend the proba- final ratings of less than fully success-
tionary period. ful within 3 consecutive years.
[54 FR 18876, May 3, 1989, as amended at 57 359.502 Procedures.
FR 10125, Mar. 24, 1992]
(a) Notice. The agency shall notify
359.407 Appeals. the career appointee in writing at least
30 calendar days before the effective
(a) Removal under 359.402, 359.403, or date of the action. The notice shall ad-
359.404 is not appealable to the Merit vise the appointee of
Systems Protection Board under 5 (1) The basis for the action;
U.S.C. 7701. (2) The appointees placement rights
(b) Removal under 359.405 is appeal- under subpart G of this partthe posi-
able to the Merit Systems Protection tion to which the appointee will be as-
Board under 5 U.S.C. 7701 as to whether signed shall be identified either in this
the reduction in force complies with advance notice or in a supplementary
the competitive procedures required notice issued no later than 10 calendar
under 5 U.S.C. 3595(a). days before the effective date of the ac-
tion;
Subpart ERemoval of Career (3) The appointees right to request
Appointees for Less Than Fully an informal hearing from the Merit
Systems Protection Board;
Successful Executive Perform- (4) The effective date of the removal
ance action; and
(5) When applicable, the appointees
359.501 General.
eligibility for immediate retirement
(a) Coverage. (1) This subpart covers under 5 U.S.C. 8336(h) or 8414(a).
(i) A career appointee who has com- (b) Informal hearing. (1) A career ap-
pleted the probationary period in the pointee being removed from the SES
SES; and under this section shall, at least 15
296
days before the effective date of the re- 359.504 Appeals.

moval, be entitled, upon request, to an
An action taken under 359.501 is not
informal hearing before an official des-
appealable to the Merit Systems Pro-
ignated by the Merit Systems Protec-
tection Board under 5 U.S.C. 7701.
tion Board. The appointee shall submit
the request for an informal hearing to
the Board. This request may be made Subpart FRemoval of Career
at any time after the appointee has re- Appointees as a Result of Re-
ceived the notice described in para- duction in Force
graph (a) of this section, but no later
than 15 days before the effective date of 359.601 General.
action. The informal hearing shall be (a) Coverage. (1) This subpart covers
conducted in accordance with the regu- the removal of a career appointee from
lations and procedures established by the SES as a result of a reduction in
the Board. See 5 CFR 1201.141, Right to force.
hearing, and 5 CFR 1201.142, Hearing (2) This subpart does not cover, how-
procedures; referral of the record. ever, a career appointee who is serving
(2) Neither the granting nor the con- as a reemployed annuitant. See subpart
duct of an informal hearing shall pro- I of this part for removal of a reem-
vide a basis for appeal to the Merit ployed annuitant.
Systems Protection Board under 5
(b) Definitions(1) Probationary period
U.S.C. 7701. The removal action need
is defined in 359.202 of this part.
not be delayed because of the granting
(2) Reduction in force is defined in 5
of an informal hearing.
U.S.C. 3595(d) as including the elimi-
359.503 Restrictions. nation or modification of a position
due to a reorganization, due to a lack
(a) Removal from the SES under this
of funds or curtailment of work, or due
subpart may not be made effective
to any other factor.
within 120 days after
(3) Agency in this subpart means an
(1) The appointment of a new agency
executive department or an inde-
head; or
(2) The appointment in the agency of pendent establishment.
the career appointees most immediate (c) Agency procedures. An agency
supervisor who must have issued written procedures
(i) Is a noncareer appointee; and before conducting a reduction in force.
(ii) Has the authority to remove the A copy of the procedures shall be pro-
career appointee. vided OPM upon issuance.
(b) For purposes of this section, a [54 FR 18876, May 3, 1989, as amended at 60
noncareer appointee includes an SES FR 6388, Feb. 2, 1995]
noncareer or limited appointee, an ap-
pointee in a position filled by Schedule 359.602 Agency reductions in force.
C, or an appointee in an Executive (a) Competitive procedures. (1) This
Schedule or equivalent position other paragraph applies to all SES career ap-
than a career Executive Schedule or pointees in the agency, including ap-
equivalent position. pointees serving a probationary period.
(c) This restriction does not apply (2) An agency shall establish com-
when the career appointee has received petitive procedures in writing to deter-
a final rating of unsatisfactory under mine who will be removed from the
the performance appraisal system es- SES in any reduction in force of career
tablished by the agency under sub- appointees within the agency. Such
chapter II of chapter 43 of title 5, competitive procedures shall be based
United States Code, before the appoint- primarily on performance. When per-
ment of a new agency head or the ap- formance ratings are used, they shall
pointment of the career appointees be the final ratings under 5 CFR part
most immediate noncareer supervisor 430, subpart C.
who has the authority to remove the (3) An appointee who has completed
career appointee.
the probationary period must be re-

[54 FR 18876, May 3, 1989, as amended at 57 tained over an appointee who has not
FR 10125, Mar. 24, 1992] completed the probationary period if
297
359.603 5 CFR Ch. I (1116 Edition)
they both have the same retention agency to take any action that OPM
standing. considers necessary to carry out a
(4) Competitive procedures are not placement.
required if an agency is being abol- (c) OPM referrals. (1) OPM may for-
ished, without a transfer of functions, mally refer a career appointee to an
and all SES appointees will be sepa- agency for a specific SES vacancy or
rated at the same time or within 3 general priority consideration. Such a
months of abolishment. referral may not become a part of the
(b) Placement within the agency. (1)
regular competitive staffing process.
This paragraph applies to any SES ca-
reer appointee who has completed the The appointee must be considered by
probationary period, or was not re- the agency for a noncompetitive SES
quired to serve a probationary period, appointment.
and who has been identified for reduc- (2) Any objection by the agency to
tion in force under paragraph (a) of the qualifications of the appointee
this section. must be based on the professional/tech-
(2) The appointee is entitled to be of- nical qualifications in the standard for
fered any vacant SES position in the the position. An agency may not rely
agency for which the appointee meets solely on lack of agency-specific expe-
the qualifications requirements. If rience for an objection based on lack of
there is more than one vacancy, the professional/technical qualifications if
agency has the option of which posi- the appointee is otherwise qualified.
tion to offer the appointee. (d) Agency response. (1) In order to ex-
(3) An appointee covered by this pedite placement of surplus career ap-
paragraph is entitled to be placed in a pointees, an agency shall respond to an
vacant SES position over an appointee
OPM referral within the time period
who is still serving a probationary pe-
prescribed by OPM.
riod.
(2) If an agency fails to place a re-
[54 FR 18876, May 3, 1989, as amended at 60 ferred career appointee in an SES posi-
FR 6388, Feb. 2, 1995]
tion because of objection to the ap-
359.603 OPM priority placement. pointees qualifications or because of
any other reason, the agency response
(a) Agency certification. (1) If there is
must be in writing and must be signed
no vacant SES position within the
by the agency head, or the acting agen-
agency for which an appointee covered
by 359.602(b) is qualified, the agency cy head in the absence of the agency
head, or the acting agency head in the head. The response may not be dele-
absence of the agency head, shall cer- gated below the Assistant Secretary
tify to OPM in writing that no such po- level in a department, or an equivalent
sition is available. This certification level above the director of personnel in
may not be delegated below the Assist- other agencies.
ant Secretary level in a department, or (3) If an agency cancels a position
an equivalent level above the director while a referral to the position is pend-
of personnel in other agencies. ing, the appointee will be entitled to
(2) The 45-day period during which priority consideration for the position
OPM will attempt to place the ap- if it or a successor position is reestab-
pointee begins on the day the certifi- lished in the SES within 1 year of the
cation is akcnowledged by OPM. cancellation date and the appointee
(3) It is the continuing responsibility has not been placed in another SES po-
of an agency that has a surplus career sition.
appointee to place the appointee in any (e) Corrective action. If an agency fails
vacant SES position in the agency for to provide bona fide priority consider-
which the appointee is qualified, even
ation, OPM may order appropriate cor-
after the appointee is certified to OPM.
rective action.
(4) An individual remains a career
SES appointee in his or her agency (f) Declination by employee. If a career
appointee declines a reasonable offer of
during the OPM placement period.

(b) OPM authority. As provided by placement, OPMs placement efforts
U.S.C. 3595(b)(3), OPM may require an
298
will cease. The appointee may be re- tion of the 45-day OPM placement pe-
moved from the SES at the expiration riod, or 5 U.S.C. 3595(b)(4) if the basis is
of the agency notice period. declination of a reasonable offer of
[54 FR 18876, May 3, 1989, as amended at 60
placement, in which case identify the
FR 6388, Feb. 2, 1995] position offered and the date on which
it was declined;
359.604 Removal from the SES and (2) The effective date of the removal;
placement rights outside the SES. (3) Placement rights outside the SES
(a) If a probationary appointee is and, when applicable, the appointees
identified for reduction in force under eligibility for discontinued service re-
359.602(a), removal action is taken tirement in lieu of placement; and
under 359.405. Placement rights out- (4) Reminder of the appointees ap-
side the SES are covered under subpart peal rights.
G of this part. [60 FR 6389, Feb. 2, 1995]
(b) If a career appointee who has
completed the probationary period, or 359.606 Appeals.
who did not have to serve one, is iden- A career appointee may appeal to the
tified for reduction in force under Merit Systems Protection Board
359.602(a) and is not placed elsewhere whether the reduction in force com-
in the SES under 359.602(b) or 359.603, plies with the competitive procedures
or declines a placement offer under in 359.602(a).
359.603, removal action is taken under
359.604(b). Placement rights outside 359.607 Records.
the SES are covered under subpart G of Each agency shall maintain current
this part. records needed to determine the reten-
359.605 Notice requirements. tion standing of its competing ap-
pointees. The agency shall allow the
(a) Each career appointee subject to inspection of its retention registers
removal under 359.604(b) is entitled to and related records by an appointee to
a specific, written notice at least 45 the extent that they have a bearing on
calendar days before the effective date the appointees situation. The agency
of the removal. The notice shall state, shall preserve intact all registers and
as a minimum records relating to a reduction-in-force
(1) The action to be taken and its action for at least 2 years from the ef-
prospective effective date; fective date of the action.
(2) The nature of the competition, in-
cluding the appointees competitive 359.608 Transfer of function.
area, if less than the agency, and
(a) Transfer of function means the
standing on the retention register;
transfer of the performance of a con-
(3) The place where the appointee
tinuing function from one agency to
may inspect the regulations and
one or more other agencies.
records pertinent to the action;
(b) A career appointee is entitled to
(4) Placement rights within the agen-
accompany his or her function to the
cy and through OPM, including how
new agency without any change in ten-
the employee can apply for OPM place-
ure if the alternative is removal from
ment assistance; and
the SES in the current agency under
(5) The appointees appeal rights, in-
reduction in force.
cluding the time limit for appeal and
the location of the Merit Systems Pro-
tection Board office to which an appeal Subpart GGuaranteed
should be sent. Placement
(b) A career appointee who has re-
ceived a notice under paragraph (a) of 359.701 Coverage.
this section is entitled to a second no- This subpart covers career ap-
tice in writing at least 1 day before re- pointees, other than reemployed annu-
moval from the SES. The notice shall itants, who are removed from the SES
state, as a minimum under any of the following conditions:

(1) The basis for the removal, i.e., 5 (a) Removal during the probationary
U.S.C. 3595(b)(5) if the basis is expira- period under subpart C of this part or
299
359.702 5 CFR Ch. I (1116 Edition)
under subpart D of this part for other equivalent tenure for which the ap-
than misconduct, neglect of duty, mal- pointee meets the qualifications re-
feasance, or other disciplinary reasons quirements; or
under 359.403, 359.404, or part 752, sub- (2) If the appointee is willing to ac-
part F, of this chapter, if at the time of cept a position having a different ten-
appointment to the SES the individual ure.
held a career or career-conditional ap-
pointment or an appointment of equiv- 359.703 Responsibility for placement.
alent tenure, as determined by OPM. The agency taking the removal ac-
An appointment of equivalent tenure is tion is responsible for placing the ap-
considered to be an appointment in the pointee in an appropriate position
excepted service other than an appoint- within the agency, or for arranging a
ment transfer to an appropriate position in
(1) To a Schedule C position estab- another agency. Any transfer must be
lished under part 213 of this chapter; mutually acceptable to the appointee
(2) To a position that meets the same
and the gaining agency.
criteria as a Schedule C position; or
(3) To a position where the incum- 359.704 Restrictions.
bent is traditionally changed upon a
change in Presidential Administra- Placement of an appointee under this
tions. subpart shall not cause the separation
(b) Removal as the result of: or reduction in grade of any other em-
(1) Failure to be recertified under ployee.
subpart C of this part;
(2) Less than fully successful execu- 359.705 Pay.
tive performance under subpart E of (a) An appointee placed under this
this part; or subpart in a position outside the SES
(3) A reduction in force under subpart (in the same or different agency) is en-
F of this part. The appointee must titled to receive basic pay at the high-
have completed the required proba- est of
tionary period under the SES or was (1) The rate of basic pay in effect for
not required to serve a probationary the position in which the appointee is
period. being placed (i.e., a rate of basic pay
[54 FR 18876, May 3, 1989, as amended at 56 within the normal rate range of the po-
FR 172, Jan. 3, 1991; 57 FR 10125, Mar. 24, 1992] sition in which placed, consistent with
the rules of the pay system covering
359.702 Placement rights. such position);
(a) An appointee covered by this sub- (2) The rate of basic pay currently in
part is entitled to be placed in a vacant effect for the position the appointee
civil service position (other than an held immediately before being ap-
SES position) in any agency that is pointed to the SES; or
(1) A continuing position at GS15 or (3) The rate of basic pay in effect for
above, or equivalent, that will last at the appointee immediately before re-
least three months; and moval from the SES.
(2) A position for which the appointee (b)(1) The rate of basic pay under
meets the qualifications requirements. paragraph (a)(1) and (2) of this section
(b) A probationary appointee, or a includes any applicable locality pay-
nonprobationary appointee who at the ment under 5 U.S.C. 5304, special rate
time of appointment to the SES held a supplement under 5 U.S.C. 5305, or
career or career-conditional appoint- similar payment under other legal au-
ment (or an appointment of equivalent thority.
tenure, as defined in 359.701(a)), is en- (2) When an employee is entitled to a
titled to be placed in a position of ten- payable rate of basic pay under para-
ure equivalent to that of the appoint- graph (a)(2) or (3) of this section which
ment held at the time of appointment exceeds the maximum payable rate of
to the SES. This tenure requirement basic pay for the grade or level of the
does not apply employees position after placement,

(1) If the agency taking the removal the resulting saved rate is subject to
action does not have a position of the adjustment and termination rules
300
in paragraphs (d) through (f) of this in application of paragraph (d)(1) of

section. this section.
(c)(1) For an employee placed in a (4) When an employees saved rate be-
General Schedule position, a saved rate comes equal to or lower than the max-
established under this section may not imum payable rate of basic pay for the
be supplemented by a locality payment grade or level of the employees posi-
under 5 U.S.C. 5304, a special rate sup- tion, the employee is entitled to the
plement under 5 U.S.C. 5305, or a simi- maximum payable rate, and saved pay
lar payment under other legal author- under this section ceases to apply.
ity. (e) When an employee receiving a
(2) A saved rate established under saved rate established under this sec-
this section is subject to the limitation tion is covered by a pay system that
on Senior Executive Service pay in 5 provides different basic pay schedules
U.S.C. 5382 of the rate for level II of the based on geographic location (such as
Executive Schedule. the General Schedule pay system), the
(3) A saved rate established under saved rate must be adjusted in conjunc-
tion with a change in the employees
this section is considered an employ-
official worksite consistent with the
ees rate of basic pay for the same pur-
geographic conversion rule for retained
poses as a retained rate under 5 CFR
rates under 5 CFR 536.303(b).
part 536, as described in 5 CFR 536.307.
(f) A saved rate established under
(d) A saved rate established under this section must be terminated if
this section must be adjusted in con- (1) The employee has a break in serv-
nection with a pay schedule adjust- ice of 1 workday or more;
ment according to the following rules: (2) The employee is demoted based on
(1) When the maximum payable rate unacceptable performance or conduct
of basic pay for the grade or level of an or at the employees request; or
employees position is increased while (3) The employee becomes entitled to
the employee is receiving a saved rate, a rate of basic pay that is equal to or
the employee is entitled to a pay ad- higher than the saved rate.
justment equal to 50 percent of the (g) If an employee is receiving a
amount of the increase in that max- saved rate established under this sec-
imum payable rate, except as otherwise tion on May 1, 2005 (when section 301 of
provided in this section. Pub. L. 108411 took effect), any local-
(2) If an employees official worksite ity payment under 5 U.S.C. 5304 for-
is changed while the employee is re- merly paid in addition to the employ-
ceiving a saved rate, a change in the ees saved rate no longer applies as of
applicable range maximum because of that date. Any locality-adjusted saved
a change in an employees official rate in effect and payable on April 30,
worksite is not considered in applying 2005, must be converted to an equal
paragraph (d)(1) of this section. In- saved rate effective on May 1, 2005. If
stead, any adjustment of the employ- the employee received no locality pay-
ees saved rate in conjunction with a ment because of a pay limitation, no
change in official worksite must be de- conversion under this paragraph is re-
termined under paragraph (e) of this quired.
section. If an employees range max- [70 FR 31286, May 31, 2005, as amended at 73
imum is increased because of a pay FR 66151, Nov. 7, 2008]
schedule adjustment on the same effec-
tive date as a change in the employees
official worksite, the saved rate must
Subpart HFurloughs in the Senior
be adjusted under paragraph (d)(1) of Executive Service
this section before applying paragraph
(e) of this section. AUTHORITY: 5 U.S.C. 3133 and 3136.
(3) A change in an employees rate SOURCE: 48 FR 11925, Mar. 2, 1983, unless
range maximum resulting from a otherwise noted.
change in the employees position (e.g.,
change in occupational series) that

causes the employee to be covered by a This subpart sets the conditions
different pay schedule does not result under which an agency may furlough
301
359.802 5 CFR Ch. I (1116 Edition)
career appointees in the Senior Execu- (3) The basis for selecting the ap-
tive Service. The furlough of a non- pointee for furlough when some but not
career, limited term, or limited emer- all Senior Executive Service ap-
gency appointee is not subject to this pointees in a given organizational unit
subpart. The furlough of a reemployed are being furloughed;
annuitant holding a career appoint- (4) The reason if the notice period is
ment also is not subject to the subpart. less than 30 days;
(5) The place where the appointee
359.802 Definitions. may inspect the regulations and
For the purpose of this subpart, fur- records pertinent to the action; and
lough means the placing of an ap- (6) The appointees appeal rights, in-
pointee in a temporary status without cluding the time limit for the appeal
duties and pay because of lack of work and the location of the Merit Systems
or funds or other nondisciplinary rea- Protection Board office to which the
sons. appeal should be sent.
359.803 Competition. 359.807 Records.

Any furlough for more than 30 cal- The agency shall preserve all records
endar days, or for more than 22 work- relating to an action under this sub-
days if the furlough does not cover con- part for at least one year from the ef-
secutive calendar days, shall be made fective date of the action.
under competitive procedures estab-
lished by the agency. The procedures Subpart IRemoval of Noncareer
shall be made known to the SES mem- and Limited Appointees and
bers in the agency.
Reemployed Annuitants
FR 6389, Feb. 2, 1995] 359.901 Coverage.
(a) This subpart covers the removal
359.804 Length of furlough.
from the SES of
A furlough may not extend more (1) A noncareer appointee;
than one year. It may be made only (2) A limited emergency or a limited
when the agency intends to recall the term appointee; and
appointee within one year. (3) A reemployed annuitant holding
any type of appointment under the
359.805 Appeals. SES.
A career appointee who has been fur- (b) Coverage does not include, how-
loughed and who believes this subpart ever, a limited emergency or a limited
or the agencys procedures have not term appointee who is being removed
been correctly applied may appeal to for disciplinary reasons and who is cov-
the Merit Systems Protection Board ered by 5 CFR 752.601(c)(2).
under provisions of the Boards regula-
tions. 359.902 Conditions of removal.
(a) Authority. The agency may re-
359.806 Notice. move an appointee subject to this sub-
(a) An appointee is entitled to a 30 part at any time.
days advance written notice of a fur- (b) Notice. The agency shall notify
lough. The full notice period may be the appointee in writing before the ef-
shortened, or waived, only in the event fective date of the removal.
of unforseeable circumstances, such as (c) Placement rights. An appointee
sudden emergencies requiring imme- covered by this subpart is not entitled
diate curtailment of activities. to the placement rights provided for
(b) The written notice shall advise career appointees under subpart G of
the appointee of: this part.
(1) The reason for the agency decision (d) Appeals. Actions taken under this
to take the furlough action. subpart are not appealable to the Merit
(2) The expected duration of the fur- Systems Protection Board under 5
lough and the effective dates; U.S.C. 7701.
302
PART 362PATHWAYS PROGRAMS (2) The Recent Graduates Program;

and
Subpart AGeneral Provisions (3) The Presidential Management
Fellows (PMF) Program.
Sec. (b) An agency may rename the Pro-
362.101 Program administration. grams specified in paragraphs (a)(1)
362.102 Definitions. through (3) of this section, provided
362.103 Authority.
362.104 Agency requirements.
that the agency-specific name includes
362.105 Filling positions. the Pathways Program name identified
362.106 Participant Agreement. in paragraph (a) of this section, e.g.,
362.107 Conversion to the competitive serv- Treasury Internship Program.
ice. (c) Agencies must provide for equal
362.108 Program oversight. employment opportunity in the Path-
362.109 Reporting requirements. ways Programs without regard to race,
362.110 Transition. ethnicity, color, religion, sex (includ-
ing pregnancy and gender identity), na-
Subpart BInternship Program
tional origin, age, disability, sexual
362.201 Agency authority. orientation, genetic information, or
362.202 Definitions. any other non-merit-based factor.
362.203 Filling positions.
362.204 Conversion to the competitive serv- 362.102 Definitions.
ice.
For the purposes of this part:
362.205 Reduction in force (RIF) and termi-
nation. Advanced degree means a professional
or graduate degree, e.g., masters,
Subpart CRecent Graduates Program Ph.D., J.D.
Agency means an agency as defined in
362.301 Program administration. 5 U.S.C. 105, and the Government Print-
362.302 Eligibility. ing Office.
362.303 Filling positions.
362.304 Movement between agencies.
Certificate program means post-sec-
362.305 Conversion to the competitive serv- ondary education, in a qualifying edu-
ice. cational institution, equivalent to at
362.306 Reduction in force and termination. least one academic year of full-time
study that is part of an accredited col-
Subpart DPresidential Management lege-level, technical, trade, vocational,
Fellows Program or business school curriculum.
Director means the Director of OPM
362.402 Program administration. or his or her designee.
362.403 Announcement, eligibility, and se- OPM means the Office of Personnel
lection. Management.
362.404 Appointment and extension. Participant Agreement means a writ-
362.405 Development, evaluation, pro- ten agreement between the agency and
motion, and certification. each Pathways Participant.
362.406 Movement between agencies. Program Participant or Pathways Par-
362.407 Withdrawal and readmission.
ticipant means any individual ap-
362.408 Termination and reduction in force.
362.409 Conversion to the competitive serv- pointed under a Pathways Program.
ice. Qualifying educational institution
means
AUTHORITY: E.O. 13562, 75 FR 82585. 3 CFR,
(1) A public high school whose cur-
2010 Comp., p. 291
riculum has been approved by a State
SOURCE: 77 FR 28215, May 11, 2012, unless or local governing body, a private
otherwise noted. school that provides secondary edu-
cation as determined under State law,
Subpart AGeneral Provisions or a homeschool that is allowed to op-
erate in a State; and
362.101 Program administration. (2) Any of the following educational
(a) The Pathways Programs author- institutions or curricula that have
ized under Executive Order 13562 con- been accredited by an accrediting body
sist of the following three Programs: recognized by the Secretary of the U.S.
(1) The Internship Program; Department of Education:
303
362.103 5 CFR Ch. I (1116 Edition)
(i) A technical or vocational school; and necessary exceptions for short

(ii) A 2-year or 4-year college or uni- term temporary work, such as summer
versity; jobs;
(iii) A graduate or professional school (6) Include a commitment from the
(e.g., law school, medical school); or agency to:
(iv) A post-secondary homeschool (i) Provide to OPM any information
curriculum. it requests on the agencys Pathways
Programs;
362.103 Authority. (ii) Adhere to any caps on the Path-
An agency may make an appoint- ways Programs imposed by the Direc-
ment under this part to a position de- tor;
fined in 213.3402 of this chapter, pro- (iii) Provide information to OPM
vided a Memorandum of Understanding about opportunities for individuals in-
between the head of the agency or his terested in participating in the Path-
or her designee and OPM is in effect. ways Programs, as required by this
part;
362.104 Agency requirements. (iv) Ensure adherence to the require-
(a) Memorandum of Understanding. In ments for accepting applications, as-
order to make any appointment under sessing applicants, rating and ranking
a Pathways authority, a Memorandum qualified candidates, and affording vet-
of Understanding (Pathways MOU) erans preference in accordance with
must be in effect between the head of the provisions of part 302; and
an agency, or his or her designee, and (v) Provide a meaningful on-boarding
OPM for the administration and use of process for each Pathways Program;
Pathways Programs, to be re-executed (7) Identify the agencys Pathways
no less frequently than every 2 years. Programs Officer (PPO), who:
(b) The Director may revoke an agen- (i) Must be in a position at the agen-
cys Pathways MOU when agency use cys headquarters level, or at the head-
of these Programs is inconsistent with quarters level of a departmental com-
Executive Order 13562, this part, or the ponent, in a position at or higher than
Pathways MOU. grade 12 of the General Schedule (GS)
(c) The Pathways MOU must: (or the equivalent under the Federal
(1) Include information about any Wage System (FWS) or another pay
agency-specific program labels that and classification system);
will be used, subject to the Federal (ii) Is responsible for administering
naming conventions identified in the agencys Pathways Programs, in-
362.101 (e.g., OPM Internship Pro- cluding coordinating the recruitment
gram); and on-boarding process for Pathways
(2) State the delegations of authority Programs Participants, and coordi-
for the agencys use of the Pathways nating the agencys Pathways Pro-
Programs (e.g., department-wide vs. grams plan with agency stakeholders
bureaus or components); and other hiring plans (e.g., merit pro-
(3) Include any implementing policy motion plans, plans for hiring people
or guidance that the agency deter- with disabilities);
mines would facilitate successful im- (iii) Serves as a liaison with OPM by
plementation and administration for providing updates on the agencys im-
each Pathways Program; plementation of its Pathways Pro-
(4) Prescribe criteria and procedures grams, clarifying technical or pro-
for agency-approved extensions for Re- grammatic issues, sharing agency best
cent Graduates and PMFs, not to ex- practices, and other similar duties; and
ceed 120 days. Extension criteria should (iv) Reports to OPM on the agencys
be limited to circumstances that would implementation of its Pathways Pro-
render the agencys compliance with grams and individuals hired under
the regulations impracticable or im- these Programs, in conjunction with
possible; the agencys Pathways MOU; and
(5) Describe how the agency will de- (8) Identify the agencys PMF coordi-
sign, implement, and document formal nator responsible for administering the
training and/or development, as well as agency PMF Program and serving as a
the type and duration of assignments, liaison with OPM.
304
362.105 Filling positions. (2) A Pathways Participant must be a

(a) Workforce Planning. Before filling United States citizen to be eligible for
any positions under these Programs, noncompetitive conversion to the com-
agencies should include measures in petitive service.
their workforce planning to ensure (f) Employment of relatives. In accord-
that an adequate number of permanent ance with part 310 of this chapter, a
positions will be available to convert Pathways Participant may work in the
Pathways Participants who success- same agency with a relative when
fully complete their Programs. there is no direct reporting relation-
(b) Announcements. When an agency ship and the relative is not in a posi-
accepts applications from individuals tion to influence or control the Partici-
outside its own workforce, it must pro- pants appointment, employment, pro-
vide OPM information concerning motion or advancement within the
Pathways Programs job opportunities agency.
as provided in each Pathways Program.
(g) Length of Appointments. Except as
For the purposes of this paragraph,
provided in subpart B, Recent Graduate
agency means an Executive agency
as defined in 5 U.S.C. 105 and the Gov- and PMF appointments under this au-
ernment Printing Office. An Executive thority may not exceed 2 years plus
department may treat each of its bu- any agency-approved extension of up to
reaus or components (first major sub- 120 days.
division that is separately organized (h) Terminations. An agency may ter-
and clearly distinguished from other minate a Pathways Participant for rea-
bureaus or components in work func- sons including misconduct, poor per-
tion and operation) as a separate agen- formance, or suitability under the pro-
cy or as part of one agency, but must visions of this chapter.
do so consistent with its Delegated Ex- (i) Performance and progress evalua-
amining Agreement. tion. Each Participant must be placed
(c) Appointments. (1) Agencies must on a performance plan, as prescribed by
fill positions under the Pathways Pro- part 430 of this chapter or other appli-
grams using the excepted service ap- cable law or regulation, establishing
pointing authority provided by performance elements and standards
213.3402 (a), (b), or (c) of this chapter, that are directly related to acquiring
as applicable.
and demonstrating the various leader-
(2) Agencies must follow the proce-
ship, technical, and/or general com-
dures of part 302 of this chapter when
filling a position under a Pathways petencies expected of the Participant,
Program. as well as the elements and standards
(3) Appointments are subject to all established for the duties assigned.
the requirements and conditions gov- (j) Compensation. The rules for setting
erning term, career, or career-condi- pay upon the initial appointment of a
tional employment, including inves- Participant are governed by the pay
tigation to establish an appointees administration rules of the pay system
qualifications and suitability. or pay plan of the Participants posi-
(d) Eligibility. Except as set forth in tion under the Pathways program. In
this section, eligibility requirements determining the Participants com-
for appointment under a Pathways pensation, agencies may also use any
Program are specified in each Path- applicable pay flexibilities available
ways Program. under that pay system or pay plan
(e) Citizenship. (1) An agency may ap- (e.g., recruitment, relocation, and re-
point a non-citizen provided that: tention incentives under part 575 of
(i) The Pathways Participant is law- this chapter; student loan repayments
fully admitted to the United States as under part 537; and, for General Sched-
a permanent resident or is otherwise
ule positions, special rates under part
authorized to be employed; and
530, subpart C, and the superior quali-
(ii) The agency is authorized to pay
fications and special needs pay setting
aliens under the annual Appropriations

Act ban and any agency-specific ena- authority and the maximum payable
bling and appropriation statutes. rate rule under part 531, subpart B).
305
362.106 5 CFR Ch. I (1116 Edition)
362.106 Participant Agreement. tively converted to a permanent posi-

Agencies must execute a written Par- tion in the competitive service upon
ticipant Agreement with each Path- completion of the Program, with or
ways Participant that clearly identi- without an intervening term appoint-
fies expectations, including but not ment, and without a break in service of
limited to: one day.
(a) A general description of duties; (f) Though Pathways Participants
(b) Work schedules; are eligible for noncompetitive conver-
(c) The length of the appointment sion to the competitive service upon
and termination date; successful completion of their Program
(d) Mentorship opportunities; and any other applicable conversion re-
(e) Training requirements as applica- quirements, service in a Pathways Pro-
ble; gram confers no right to further em-
(f) Evaluation procedures that will be ployment in either the competitive or
used for the Participant;
excepted service. An agency wishing to
(g) Requirements for continuation
convert a Pathways Participant must
and successful completion of the Pro-
gram; and therefore execute the required actions
(h) Minimum eligibility requirements to do so.
for noncompetitive conversion to term
362.108 Program oversight.
or permanent competitive service em-
ployment according to the require- (a) The Director may establish caps
ments of the applicable Pathways Pro- on the number of Pathways Partici-
gram. pants who may be appointed or con-
verted in any Pathways Program with-
362.107 Conversion to the competi- in a specific agency or throughout the
tive service.
Federal Government.
(a) Subject to any limits on conver- (b) The Director may establish such
sion imposed by the Director, and in caps based on agency or Government-
accordance with the provisions of each wide use of the Pathways Programs,
Pathways Program, an agency may input from the Executive agencies, and
noncompetitively convert an eligible
consideration of the following:
Pathways Participant to a term or per-
manent competitive service position. (1) Agency MOU compliance;
(b) A Pathways Participant who is (2) Agency approach to entry-level
noncompetitively converted to a com- hiring;
petitive service term appointment may (3) Agency engagement in sound
be subsequently converted noncompeti- workforce planning to ensure that an
tively to a permanent competitive adequate number of permanent posi-
service position. tions will be available to which Path-
(c) Noncompetitive conversion. (1) An ways Participants who successfully
Intern may be converted to a position complete their Programs can be con-
within the employing agency or any verted;
other agency within the Federal Gov- (4) Agency record in using the Path-
ernment. ways Programs as a supplement to
(2) A Recent Graduate or Presidential competitive examining, rather than as
Management Fellow may be converted a substitute for it;
within the employing agency. Agencies (5) Agency record of publicizing their
may not convert Recent Graduates or
positions in the Pathways Programs
Presidential Management Fellows from
and recruiting and selecting from a
other agencies.
(d) The provisions of the career tran- broad array of sources; and
sition assistance programs in subparts (6) Any other information the Direc-
B, F and G of part 330 of this chapter do tor deems relevant.
not apply to conversions made under (c) In the event the Director deter-
this part. mines that any caps would be appro-
(e) Time spent serving as a Pathways priate, OPM will publish notice of such
Participant counts towards career ten- caps in a manner chosen by the Direc-
ure when the individual is noncompeti- tor.
306
362.109 Reporting requirements. ship Program under Public Law 93842.

Agencies must provide information Students need not be in actual physical
requested by OPM regarding workforce attendance, so long as all other re-
planning strategies that includes: quirements are met. An individual who
(a) Information on the entry-level oc- needs to complete less than the equiva-
cupations targeted for filling positions lent of half an academic/vocational or
under this part in the coming year; technical course-load immediately
(b) The percentage of overall hiring prior to graduating is still considered a
expected in the coming year under the student for purposes of this Program.
Internship, Recent Graduates, and
Presidential Management Fellows Pro- 362.203 Filling positions.
grams; and (a) Announcement. (1) When an agency
(c) For the previous year: accepts applications from individuals
(1) The number of individuals ini- outside its own workforce, it must pro-
tially appointed under each Pathways vide OPM information concerning op-
Program; portunities to participate in the agen-
(2) The percentage of the agencys cys Internship Program. For the pur-
overall hires made from each Pathways poses of this paragraph (a), agency
Program; means an Executive agency as defined
(3) The number of Pathways Partici- in 5 U.S.C. 105 and the Government
pants, per Program, converted to the Printing Office. An Executive depart-
competitive service; and ment may treat each of its bureaus or
(4) The number of Pathways Partici- components (first major subdivision
pants, per Program, who were sepa- that is separately organized and clear-
rated. ly distinguished from other bureaus or
components in work function and oper-
362.110 Transition.
ation) as a separate agency or as part
OPM will provide written guidance of one agency, but must do so con-
for the orderly transition of employees sistent with its Delegated Examining
currently appointed as students under Agreement. The information must in-
the Student Educational Employment clude:
Program and current PMFs to the ap- (i) Position title, series and grade;
plicable Pathways Program and may
(ii) Geographic location of the posi-
revise that guidance as necessary.
tion, and
(iii) How to apply. A public source
Subpart BInternship Program (e.g., a link to the agencys Web site
362.201 Agency authority. with information on how to apply) for
interested individuals to seek further
The Internship Program provides stu- information about how to apply for In-
dents in high schools, colleges, trades ternship opportunities; and
schools and other qualifying edu-
(iv) Any other information OPM con-
cational institutions, as defined in
siders appropriate.
362.102 of this part, the opportunity to
explore Federal careers as paid employ- (2) OPM will publish information on
ees while completing their education. Internship opportunities in such form
Students appointed under this author- as the Director may determine.
ity are referred to as Interns. (b) Eligibility. Except as provided in
paragraph (h) of this section, Interns
362.202 Definitions. must meet the definition of student in
In this subpart: 362.202 throughout the duration of
Student means an individual accepted their appointment.
for enrollment or enrolled and seeking (c) Qualifications. Individuals may be
a degree (diploma, certificate, etc.) in a evaluated against either agency-devel-
qualifying educational institution, on a oped standards or the OPM Qualifica-
full or half-time basis (as defined by tion Standard for the position being
filled.
the institution in which the student is

enrolled), including awardees of the (d) Appointments. (1) An agency may
Harry S. Truman Foundation Scholar- make Intern appointments, pursuant
307
362.204 5 CFR Ch. I (1116 Edition)
to its Pathways MOU, using the Sched- (4) Requirements for noncompetitive
ule D excepted service appointing au- conversion to a term or permanent po-
thority provided in 213.3402(a) of this sition in the competitive service are
chapter. understood by all parties.
(2) Appointments may be made to (h) Breaks in program. A break in pro-
any position for which the individual is gram is defined as a period of time
qualified. The duties of the position to when an Intern is working but is un-
which the individual is appointed able to go to school, or is neither at-
should be related to either the Interns tending classes nor working at the
academic or career goals. agency. An agency may use its discre-
(3) An agency may: tion in either approving or denying a
(i) Appoint an Intern for an initial request for a break in program.
period expected to last more than 1
year. Intern appointments are not re- 362.204 Conversion to the competi-
quired to have an end date. However, tive service.
agencies are required to specify an end (a) An agency may noncompetitively
date of the appointment in the Partici- convert an Intern who is a U.S. citizen,
pant Agreement with the Intern; or to a term or permanent appointment in
(ii) Appoint an Intern on a temporary the competitive service.
basis, not to exceed 1 year, to complete (b) To be eligible for conversion, the
temporary projects, to perform labor- Intern must have:
intensive tasks not requiring subject- (1) Completed at least 640 hours of
matter expertise, or to fill traditional work experience acquired through the
summer jobs. The agency may extend Internship Program, except as provided
these temporary appointments as pro- in paragraphs (c) and (d) of this sec-
vided in part 213 of this chapter. tion, while enrolled as a full-time or
(e) Promotion. An agency may pro- part-time, degree- or certificate-seek-
mote any Intern who meets the quali- ing student;
fication requirements for the position. (2) Completed a course of academic
This provision does not confer entitle- study, within the 120-day period pre-
ment to promotion. ceding the appointment, at a quali-
(f) Classification. (1) Intern positions fying educational institution confer-
under the General Schedule or appro- ring a diploma, certificate, or degree;
priate pay plan must be classified to (3) Received a favorable recommenda-
the 99 series of the appropriate occu- tion for appointment by an official of
pational group. the agency or agencies in which the In-
(2) Intern positions under the Federal tern served;
Wage System must be classified to the (4) Met the qualification standards
01 series of the appropriate occupa- for the position to which the Intern
tional group. will be converted; and
(g) Schedules. There are no limita- (5) Met agency-specific requirements
tions on the number of hours an Intern as specified in the agencys Participant
can work per week (so long as any ap- Agreement with the Intern.
plicable laws and regulations governing (c)(1) An agency may evaluate, con-
overtime and hours of work are ad- sider, and grant credit for up to one-
hered to). Agencies and students should half (320 hours) of the 640-hour service
agree on a formally-arranged schedule requirement in paragraph (b)(1) of this
of school and work so that: section for comparable non-Federal in-
(1) Work responsibilities do not inter- ternship experience in a field or func-
fere with academic schedule; tional area related to the students tar-
(2) Completion of the educational get position and acquired while the
program (awarding of diploma/certifi- student:
cate/degree) and the Internship Pro- (i) Worked in, but not for, a Federal
gram is accomplished in a reasonable agency, pursuant to a formal intern-
and appropriate timeframe; ship agreement, comparable to the In-
(3) The agency is informed of and pre- ternship Program under this subpart,
pared for the students periods of em- between the agency and an accredited
ployment; and academic institution;
308
(ii) Worked in, but not for, a Federal 362.205 Reduction in force (RIF) and
agency, pursuant to a written contract termination.
with a third-party internship provider (a) Reduction in force. Interns are cov-
officially established to provide intern- ered by part 351 of this chapter for pur-
ship experiences to students that are poses of RIF.
comparable to the Internship Program (1) Tenure Groups. (i) An Intern serv-
under this subpart; or ing under an appointment for an initial
(iii) Served as an active duty member period expected to last more than 1
of the armed forces (including the Na- year is in excepted service Tenure
tional Guard and Reserves), as defined Group II.
in 5 U.S.C. 2101, provided the veterans (ii) A temporary Intern, serving
discharge or release is under honorable under an appointment not to exceed 1
conditions. year, who has not completed 1 year of
(2) Student volunteer service under service, is in excepted service Tenure
part 308 of this chapter and other Fed- Group 0.
eral programs designed to give intern- (iii) A temporary Intern serving
ship experience to students (e.g., fel- under an appointment not to exceed 1
lowships and similar programs), may year, who has completed 1 year of cur-
be evaluated, considered, and credited rent, continuous service, is in excepted
under this section when the agency de- service Tenure Group III.
termines the experience is comparable (2) [Reserved]
to experience gained in the Internship (b) Termination. As a condition of em-
Program. ployment, an Intern appointment ex-
(d) An agency may waive up to one- pires:
half (i.e., 320 hours) of the 640-hour (1) 120 days after completion of the
minimum service requirement in para- designated academic course of study,
graph (b)(1) of this section when an In- unless the Participant is selected for
tern completes 320 hours of career-re- noncompetitive conversion under
lated work experience under an Intern- 362.204, or
ship Program appointment and dem- (2) Upon expiration of the temporary
onstrates high potential by out- Internship appointment.
standing academic achievement and
exceptional job performance. For pur-
poses of this paragraph:
Subpart CRecent Graduates
(1) Outstanding academic achievement
Program
means an overall grade point average 362.301 Program administration.
of 3.5 or better, on a 4.0 scale; standing
in the top 10 percent of the students The Recent Graduates Program pro-
graduating class; and/or induction into vides an entry-level developmental ex-
a nationally-recognized scholastic perience designed to lead to a civil
honor society. service career in the Federal Govern-
ment after successfully completing 1
(2) Exceptional job performance means
year under the Program, unless the
a formal evaluation conducted by the
training requirements of the position
students Internship supervisor(s), con-
warrant a longer and more structured
sistent with the applicable perform-
training program. Employment under
ance appraisal program that results in
the Recent Graduates Program may
a rating of record (or summary rating)
not exceed 2 years plus any agency ap-
of higher than Fully Successful or proved extension of up to an additional
equivalent. 120 days. Individuals appointed under
(e) An agency may not grant a credit this authority are referred to as Recent
or waiver (or a combination of a credit Graduates. An agency wishing to par-
and waiver) totaling more than 320 ticipate in the Recent Graduates Pro-
hours of the 640-hour service require- gram must:
ment in paragraph (b)(1) of this sec-
(a) Identify in the MOU the duration

tion. of its Recent Graduates Program, in-
cluding any criteria used to determine
309
362.302 5 CFR Ch. I (1116 Edition)
the need for a longer and more struc- 362.303 Filling positions.
tured training program that exceeds 1
(a) Announcement. (1) When an agency
year;
accepts applications from individuals
(b) Ensure, within 90 days of appoint- outside its own workforce, it must pro-
ment, that each Recent Graduate is as- vide OPM information concerning op-
signed a mentor who is an employee portunities to participate in the agen-
outside the Recent Graduates chain of cys Recent Graduates Program. For
command; the purposes of this paragraph, agen-
(c) Ensure, within 45 days of appoint- cy means an Executive agency as de-
ment, that each Recent Graduate has fined in 5 U.S.C. 105 and the Govern-
an Individual Development Plan (IDP) ment Printing Office. An Executive de-
that is approved by his or her super- partment may treat each of its bureaus
visor; and or components (first major subdivision
(d) Provide at least 40 hours of formal that is separately organized and clear-
interactive training per year that ad- ly distinguished from other bureaus or
vances the goals and competencies out- components in work function and oper-
lined in each Recent Graduates IDP. ation) as a separate agency or as part
Mandatory annual training, such as in- of one agency, but must do so con-
formation security and ethics training, sistent with its Delegated Examining
does not count towards the 40-hour re- Agreement. The information must in-
quirement. clude:
(i) Position title, series and grade;
362.302 Eligibility. (ii) Geographic location of the posi-
(a) A Recent Graduate is an indi- tion;
vidual who obtained a qualifying asso- (iii) How to apply. A public source
ciates, bachelors, masters, profes- (e.g., a link to the agencys Web site
sional, doctorate, vocational or tech- with information on how to apply for
nical degree or certificate from a quali- interested individuals to seek further
fying educational institution, within information about how to apply); and
the previous 2 years or other applicable (iv) Any other information OPM con-
period provided below. siders appropriate.
(b)(1) Except as provided in para- (2) OPM will publish information on
graph (b)(2) of this section, an indi- Recent Graduate opportunities in such
vidual may apply for a position in the form as the Director may determine.
Recent Graduates Program only if the (b) Appointments. (1) An agency may
individuals application is received not make appointments to the Recent
later than 2 years after the date the in- Graduates Program, pursuant to a
dividual completed all requirements of Pathways MOU executed with the
an academic course of study leading to OPM, under Schedule D of the excepted
a qualifying associates, bachelors, service in accordance with part 302 of
masters, professional, doctorate, voca- this chapter.
tional or technical degree or certificate (2) An agency must appoint a Recent
from a qualifying educational institu- Graduate using the excepted service
tion. appointing authority provided by
(2) A veteran, as defined in 5 U.S.C. 213.3402(b) of this chapter.
2108, who, due to a military service ob- (3)(i) An agency may make an initial
ligation, was precluded from applying appointment of a Recent Graduate to
to the Recent Graduates Program dur- any position filled under this authority
ing any portion of the 2-year eligibility for which the Recent Graduate quali-
period described in paragraph (b)(1) of fies, up to the GS09 level (or equiva-
this section shall have a full 2-year pe- lent under another pay and classifica-
riod of eligibility upon his or her re- tion system, such as the Federal Wage
lease or discharge from active duty. In System), except as provided in para-
no event, however, may the individ- graphs (b)(3)(ii) through (iv) of this sec-
uals eligibility period extend beyond 6 tion.
years from the date on which the indi- (ii) Initial appointments to positions
vidual completed the requirements of for science, technology, engineering, or
an academic course of study. mathematics (STEM) occupations may
310
be made at the GS11 level, if the can- (c) The new employing agency must
didate possesses a Ph.D. or equivalent appoint the Recent Graduate without a
degree directly related to the STEM break in service.
position the agency is seeking to fill. (d) Time served under the previous
(iii) Initial appointments to sci- agencys Recent Graduates Program is
entific and professional research posi- credited toward the Program require-
tions at the GS11 level for which the ments for noncompetitive conversion
classification and qualification criteria eligibility to the competitive service.
for research positions apply, if the can- Because there is no break in service,
didate possesses a masters degree or the Recent Graduate does not begin a
equivalent graduate degree directly re- new period in the Program upon mov-
lated to the position the agency is ing to the new agency.
seeking to fill. (e) The new employing agencys plan
(iv) Initial appointments to scientific must identify requirements for Pro-
gram completion and eligibility for
and professional research positions at
noncompetitive conversion.
the GS12 level for which the classi-
fication and qualification criteria for 362.305 Conversion to the competi-
research positions apply, if the can- tive service.
didate possesses a Ph.D. or equivalent
(a) An agency may noncompetitively
degree directly related to the position convert a Recent Graduate who is a
the agency is seeking to fill. U.S. citizen to a competitive service
(v) Positions must have progressively term or permanent position when the
more responsible duties that provide Recent Graduate has:
career advancement opportunities (i.e., (1) Successfully completed at least 1-
positions must provide for career lad- year of continuous service in addition
der advancement). to all the requirements of the Recent
(c) Extensions. An agency may extend Graduates Program;
the Program period for up to an addi- (2) Demonstrated successful job per-
tional 120 days to cover rare or unusual formance consistent with the applica-
circumstances or situations. The agen- ble performance appraisal program es-
cys Pathways MOU must identify cri- tablished under the agencys approved
teria for approving extensions. performance appraisal system that re-
(d) Qualifications. An agency must sults in a rating of record (or summary
evaluate candidates using OPM Quali- rating) of at least Fully Successful or
fication Standards for the occupation equivalent and a recommendation for
and grade level of the position being conversion by the first-level super-
filled. visor; and
(e) Promotions. An agency may pro- (3) Met the OPM Qualification Stand-
mote any Recent Graduate who meets ard for the competitive service position
the qualification requirements for the to which the Recent Graduate will be
position. This provision does not confer converted.
entitlement to promotion. (b) An agency must make the non-
(f) Trial period. The duration of the competitive conversion effective on the
Recent Graduates appointment in the date the service requirement is met, or
at the end of an agency-approved ex-
excepted service is a trial period.
tension, if applicable.
362.304 Movement between agencies.
362.306 Reduction in force and termi-
(a) A Recent Graduate may apply for nation.
and accept a new Recent Graduates ap- (a) Reduction in force. Recent Grad-
pointment with another agency cov- uates are in excepted service Tenure
ered by this part, as long as the agency Group II for purposes of 351.502 of this
meets all the requirements for partici- chapter. Expiration of the Recent
pating in the Recent Graduates Pro- Graduates appointment is not other-
gram. wise subject to part 351 of this chapter.
(b) To move to the new agency, the (b) Terminations. (1) Except as pro-
Recent Graduate must separate from vided in paragraph (b)(2) of this sec-
the current employing agency. tion, as a condition of employment, a
311
362.401 5 CFR Ch. I (1116 Edition)
Recent Graduate appointment expires an agency may appoint individuals se-

at the end of the agency prescribed lected by the Director as Fellows final-
Program period, plus any agency-ap- ists according to its short-, medium-,
proved extension, unless the Partici- and long-term senior leadership and re-
pant is selected for noncompetitive lated (senior policy, professional, tech-
conversion under 362.306. nical, and equivalent) recruitment, de-
(2) A Recent Graduate who held a ca- velopment, and succession require-
reer-conditional or career appointment ments.
in an agency immediately before enter- (c) The Director will establish the
ing the Program, and fails to complete qualification requirements for evalu-
the Program for reasons that are not ating applicants for the PMF Program.
related to misconduct, poor perform- (d) An agency that hires Fellows in
ance, or suitability, may, at the agen- field locations outside the Washington,
cys discretion, be placed in a perma- DC, Metropolitan Area may:
nent competitive service position, as
(1) In advance of making the appoint-
appropriate, in the employing agency.
ment, discuss whether the finalist
wants to do a developmental rotation
Subpart DPresidential to agency headquarters and, if so,
Management Fellows Program make a commitment to allow and fund
such a rotation, to the maximum ex-
362.401 Definitions. tent practicable, in accordance with
For purposes of this subpart: 362.405(b) of this part; and
Agency PMF Coordinator is an indi- (2) Promote interaction among re-
vidual, at the appropriate agency com- gional Fellows with the agency Federal
ponent level, who coordinates the Executive Board (FEB) and permit Fel-
placement, development, and other lows to attend FEB-sanctioned activi-
Program-related activities of PMFs ap- ties in that region.
pointed in his or her agency. The agen-
cy Pathways Programs Officer may 362.403 Announcement, eligibility,
also serve as the PMF Coordinator. and selection.
Executive Resources Board (ERB) has
(a) OPM will announce the oppor-
the same meaning as specified in
tunity to apply for the PMF Program
317.501(a) of this section; in those
and conduct a competition for the se-
agencies that are not required to have
lection of finalists as set forth in this
an ERB pursuant to that section, it
section.
means the senior agency official or of-
ficials who have been given responsi- (b) A Presidential Management Fel-
bility for executive resources manage- low is an individual who, within the
ment and oversight by the agency previous 2 years, completed an ad-
head. vanced degree from a qualifying edu-
Presidential Management Fellow (PMF) cational institution.
or Fellow is an individual appointed, at (c) An individual may apply for the
the GS9, GS11, or GS12 level (or PMF Program if:
equivalent under a non-GS pay and (1) The individual has obtained an ad-
classification system such as the Fed- vanced degree within the 2-year period
eral Wage System), in the excepted preceding the Program announcement
service under 213.3402(c) of this chap- described in paragraph (a) of this sec-
ter. tion, or
(2) The individual is still a student
362.402 Program administration. attending a qualifying educational in-
(a) The Director may determine the stitution, as defined in paragraph
number of Fellows who may be ap- (2)(iii) of the definition of Qualifying
pointed during any given year. This de- educational institution in 362.102, and
termination will be based on input he or she expects to complete a quali-
from the Chief Human Capital Officers fying advanced degree by August 31 of
Council, as well as input from agencies the academic year in which the com-
not represented on the Council. petition is held.

(b) Thereafter, subject to the provi- (d) An individual may apply for the
sions and requirements of this chapter, PMF Program more than once as long
312
as he or she meets the eligibility cri- (b) Required developmental activities.

teria. However, if an individual be- (1) OPM will provide an orientation
comes a finalist and subsequently ap- program for each class or cohort of Fel-
plies for the Program during the next lows and will provide information on
open announcement, the individual available training opportunities known
will forfeit his or her status as a final- to it.
ist. (2) The agency must provide each
(e) OPM will select Fellow finalists Fellow a minimum of 80 hours of for-
based on an OPM evaluation of each mal interactive training per year that
candidates experience and accomplish- addresses the competencies outlined in
ments according to his or her applica- the IDP. Mandatory annual training,
tion and the results of a rigorous struc- such as information security and ethics
tured assessment process. training, does not count towards the
(f) OPM will publish and provide par- 80-hour requirement.
ticipating agencies the Fellow finalists (3) Within the first 90 days of a Fel-
list for appointment consideration. lows appointment, the agency must
assign the Fellow a mentor, who is a
362.404 Appointment and extension. managerial employee outside the Fel-
lows chain of command.
(a) Appointments. (1) An agency may
(4) The agency must provide each
make 2-year appointments to the PMF
Fellow with at least one rotational or
Program, pursuant to a Pathways MOU
developmental assignment with full-
executed with the OPM, under Sched-
time management and/or technical re-
ule D of the excepted service in accord-
sponsibilities consistent with the Fel-
ance with part 302 of this chapter.
lows IDP. With respect to this require-
(2) An agency must appoint a PMF
ment:
using the excepted service appointing
(i) Each Fellow must receive at least
authority provided by 213.3402(c) of
one developmental assignment of 4 to 6
this chapter.
months in duration, with management
(3) OPM will establish an eligibility and/or technical responsibilities con-
period during which agencies may ap- sistent with the Fellows IDP. As an al-
point Fellow finalists. ternative, a Fellow may choose to par-
(b) Extension. An agency may extend ticipate in an agency-wide initiative or
a Fellows appointment for up to 120 other Presidential or Administration
days to cover rare or unusual cir- initiative that will provide the Fellow
cumstances or situations. The agencys with the experience he or she would
Pathways MOU must identify the cri- have gained through the 4-to-6-month
teria for approving extensions. developmental assignment; and
(c) Grade. An agency may appoint a (ii) The developmental assignment
Fellow at the GS09, GS11, or GS12 may be within the Fellows organiza-
level or equivalent depending on his or tion, in another component of the
her qualifications. agency, or in another Federal agency.
(d) Trial period. The duration of the (5) The Fellow may receive other
PMF appointment in the excepted serv- short-term rotational assignments of 1
ice is a trial period. to 6 months in duration, at the agen-
cys discretion.
362.405 Development, evaluation, (6) Upon the request of OPM, the ap-
promotion, and certification. pointing agency must make Fellows
(a) Individual Development Plans. An available to assist in the assessment
agency must approve, within 45 days, process for subsequent PMF classes.
an Individual Development Plan (IDP) Any interactive training provided to a
for each of its Fellows that sets forth Fellow in connection with assisting
the specific developmental activities OPM in the assessment process may be
that are mutually agreed upon by each counted toward the minimum 80-hour
Fellow and his or her supervisor. The training requirement in paragraph
IDP must be developed in consultation (b)(2) of this section.
with the Agency PMF Coordinator and/ (c) Promotion. An agency may pro-
or the mentor assigned to the Fellow mote any Fellow who meets the quali-
under paragraph (b)(3) of this section. fication requirements for the position.
313
362.406 5 CFR Ch. I (1116 Edition)
This provision does not confer entitle- (d) If the move occurs within the first
ment to promotion. 6 months of the Fellows appointment,
(d) Certification of completion. (1) Upon the original appointing agency may re-
completion of the Program, the agen- quest reimbursement of one-quarter of
cys ERB must evaluate each Fellow the placement fee from the new ap-
and determine whether it can certify in pointing agency.
writing that the Fellow met all of the
requirements of the Program, includ- 362.407 Withdrawal and readmission.
ing the performance and developmental (a) Withdrawal. (1) A Fellow may
expectations set forth in the individ- withdraw from the Program at any
uals performance plan and IDP. The time. Such withdrawal will be treated
ERB may consult the Fellows mentor as a resignation from the Federal serv-
in reaching its determination. ice; however, any obligations estab-
(2) The ERB must notify the Fellow lished upon admission and appointment
of its decision regarding certification (for example, as a result of accepting a
of successful completion. recruitment incentive under part 575 of
(3) ERB certifications must be for- this chapter) still apply.
warded to OPM. (2) A Fellow who held a permanent
(4)(i) If the ERB decides not to cer- appointment in the competitive service
tify a Fellow, the Fellow may request in an agency immediately before enter-
reconsideration of that determination ing the Program, and who withdraws
by the Director. Such reconsideration from the Program for reasons that are
must be requested in writing, with ap- not related to misconduct, poor per-
propriate documentation and justifica- formance, or suitability, may, at the
tion, within 15 calendar days of the employing agencys discretion, be
date of the agencys decision. The Di- placed in a permanent competitive
rectors decision on reconsideration is service position, as appropriate, in that
not subject to appeal. agency. The employing agencys deter-
mination in this regard is not subject
(ii) The Fellow may continue in the
to appeal.
Program pending the outcome of his or
(3) An agency must notify OPM when
her request for reconsideration. The
a Fellow withdraws from the Program.
agency must continue to provide ap-
(b) Readmission. (1) If a Fellow with-
propriate developmental activities dur-
draws from the Program for reasons
ing this period.
that are related to misconduct, poor
362.406 Movement between agencies. performance, or suitability, as deter-
mined by the agency, he or she will not
(a) At any time during his or her ap- be readmitted to the Program at any
pointment in the Program, a Fellow time.
may move to another agency covered (2) If a Fellow withdraws from the
by this part, as long as the agency Program for reasons that are not re-
meets all the requirements for partici- lated to misconduct, poor performance,
pating in the PMF Program. To move or suitability, he or she may petition
from one agency to another during the the employing original agency for re-
Program, the Fellow must separate admission and reappointment to the
from the current agency. The new em- Program. Such a petition must be in
ploying agency must appoint the Par- writing and include appropriate jus-
ticipant without a break in service. tification. The agency may approve or
(b) The Fellow does not begin a new deny the request for readmission. An
Program period upon appointment by agency must submit written notifica-
the new employing agency. Because tion of approved readmission requests
there is no break in service, time to OPM. The individuals status in the
served under the previous Program ap- Program upon readmission and re-
pointment will apply towards the com- appointment must be addressed as part
pletion of the Program with the new of the agencys submission. The Direc-
employing agency. tor may overrule the agencys decision
(c) An agency must notify OPM when to readmit and reappoint, and the Di-
appointing a Fellow currently ap- rectors decision is not subject to ap-
pointed in another agency. peal.
314
362.408 Termination and reduction 370.101 Purpose.

in force. (a) The purpose of this part is to im-
(a) Termination. (1) An agency may plement sections 209(b)(6) and (c) of the
terminate a Fellow for reasons related E-Government Act of 2002 (Pub. L. 107
to misconduct, poor performance, or 347), which authorize the Office of Per-
suitability. sonnel Management to establish an In-
(2) As a condition of employment, a formation Technology Exchange Pro-
Fellows appointment expires at the gram. This statute authorizes the tem-
end of the 2-year Program period, plus porary detail of information tech-
any agency-approved extension, unless nology employees between the Federal
the Participant is selected for non- Government and private sector organi-
competitive conversion. If an agency zations. The statute also gives Federal
does not convert a Fellow at the end of agencies the authority to accept pri-
the Program, as provided in 362.409 of vate sector information technology
this part, or extend the individuals employees detailed under the Informa-
initial appointment under 362.404, the tion Technology Exchange Program.
appointment expires when certification (b) Agency heads, or their designees,
for Program completion is denied or may approve details as a mechanism
when the Director denies the agencys for improving the Federal workforces
request for an extension. competency in using information tech-
(3) The agency must provide written nology to deliver Government informa-
notification to OPM when a Fellow is tion and services. Details under this
terminated for any reason. part allow Federal employees to serve
(b) Reduction in force. Fellows are in with private sector organizations for a
the excepted service Tenure Group II limited time period without loss of em-
for purposes of 351.502 of this chapter. ployee rights and benefits. Agencies
may not make details under this part
362.409 Conversion to the competi- to circumvent personnel ceilings, or as
tive service. a substitute for other more appropriate
(a) A Fellow must complete the Pro- personnel decisions or actions. Ap-
gram within the time limits prescribed proved details must meet the strategic
in 362.404 of this part, including any program goals of the agency. The bene-
agency-approved extension. At the con- fits to the Federal agency and the pri-
clusion of that period, the Fellow may vate sector organization are the pri-
be converted, as provided in paragraph mary considerations in initiating de-
(b) of this section. tails; not the desires or personal needs
(b) An agency may convert, without of an individual employee.
a break in service, an ERB-certified
Fellow to a competitive service term
or permanent appointment. In this part: Agency means an Execu-
tive agency as defined in 5 U.S.C. 105,
PART 370INFORMATION TECH- with the exception of the Government
Accountability Office.
NOLOGY EXCHANGE PRO- Core Competencies are those IT com-
GRAM petencies identified by the Federal
Chief Information Officer (CIO) Council
Sec. as a baseline for use by Federal agen-
370.101 Purpose.
cies in complying with the Clinger-
370.103 Eligibility. Cohen Act, Public Law 104106, to de-
370.104 Length of details. termine the training and development
370.105 Written agreements. needs of the Federal IT workforce.
370.106 Terms and conditions. Detail means: (1) The assignment or
370.107 Details to small business concerns. loan of an employee of an agency to a
370.108 Reporting requirements. private sector organization without a
370.109 Agency plans.
change of position from the agency
AUTHORITY: Pub. L. 107347, 116 Stat. 2923 that employs the individual (5 U.S.C.
2931 (5 U.S.C. 3707).
3701(2)(A)), or
SOURCE: 70 FR 47714, Aug. 15, 2005, unless (2) The assignment or loan of a pri-
otherwise noted. vate sector organization employee to
315
370.103 5 CFR Ch. I (1116 Edition)
an agency without a change of position Private sector organization means a

from the private sector organization profit-making business entity that is
that employs the individual (5 U.S.C. registered in the Central Contractor
3701(2)(B)). Registration Database (http://
Exceptional employee means an em- www.ccr.gov) as required for the con-
ployee who is rated at the highest lev- duct of business with the Government.
els of the applicable performance ap- Small business concern means a busi-
praisal system or, in the case of an em- ness concern that satisfies the defini-
ployee under an appraisal system that tions and standards specified by the
does not have a summary rating level Administrator of the Small Business
above fully successful or equivalent, Administration (SBA), under section
is rated at the highest summary level 3(a)(2) of the Small Business Act, codi-
used by the performance appraisal sys- fied at 13 CFR 121. Federal agencies can
tem and demonstrates sustained qual- find more information through the
ity performance significantly above Frequently Asked Questions page on
that expected in the type of position the SBAs Web site at http://
involved, as determined under perform- www.sba.gov, which addresses small
ance-related criteria established by the business size standards.
agency.
Information technology (IT) manage-
ment means the planning, organizing, (a) To be eligible for a detail under
staffing, directing, integrating, or con- this part, an individual must:
trolling of information technology as (1) Work in the field of information
defined by Office of Management and technology management;
Budget Circular A130 which states, the (2) Be considered an exceptional em-
term information technology means ployee by the individuals current em-
any equipment or interconnected sys- ployer; and
tem or subsystem of equipment, that is (3) Be expected by the individuals
used in the automatic acquisition, current employer to assume increased
storage, manipulation, management, information technology management
movement, control, display, switching, responsibilities in the future.
interchange, transmission, or reception (b) To be eligible for a detail under
of data or information by an executive this part, a Federal employee, in addi-
agency. For purposes of the preceding tion to meeting the requirements of
sentence, equipment is used by an exec- paragraph (a) of this section, must be
utive agency if the equipment is used serving in a position at the GS11 level
by the executive agency directly or is or above (or equivalent), under a career
used by a contractor under a contract or career-conditional appointment or
with the executive agency which re- an appointment of equivalent tenure in
quires the use of such equipment, or re- the excepted service. For purposes of
quires the use, to a significant extent, this part, positions of equivalent ten-
of such equipment in the performance ure in the excepted service are limited
of a service or the furnishing of a prod- to permanent appointments. In addi-
uct. The term information tech- tion, only career members of the Sen-
nology includes computers, ancillary ior Executive Service are eligible to be
equipment, software, firmware and detailed under this part.
similar procedures, services (including (c) To be eligible to participate in the
support services), and related re- Information Technology Exchange Pro-
sources. The term information tech- gram, a private sector organization
nology does not include any equip- must be registered in the Central Con-
ment that is acquired by a Federal contractor Registration Database located
tractor incidental to a Federal con- at http://www.ccr.gov, except as per-
tract. The term information tech- mitted by the Federal Acquisition Reg-
nology does not include national secu- ulation (48 CFR 4.1102).
rity systems as defined in the Clinger- (d) To be eligible for a detail to a
Cohen Act of 1996 (40 U.S.C. 1452).
Federal agency under this part, a pri-

OPM means the Office of Personnel vate sector employee, in addition to
Management. meeting the requirements of paragraph
316
(a) of this section, must meet citizen- 370.106 Terms and conditions.
ship requirements for Federal employ-
(a) A Federal employee detailed
ment in accordance with 5 CFR 7.3 and
under this part:
338.101, as well as any other statutory
limitation. (1) Remains a Federal employee with-
out loss of employee rights and bene-
370.104 Length of details. fits attached to that status. These in-
(a) Details may be for a period of be- clude, but are not limited to:
tween 3 months and 1 year, and may be (i) Consideration for promotion;
extended in 3-month increments for a (ii) Leave accrual;
total of not more than 1 additional (iii) Continuation of retirement bene-
year, in accordance with 5 U.S.C. fits and health, life, and long-term care
3702(d). insurance benefits; and
(b) Agencies may not approve or ex- (iv) Pay increases the employee oth-
tend details after December 17, 2007. An erwise would have received if he or she
individual serving on a detail prior to had not been detailed;
this date may continue to do so as long (2) Remains covered for purposes of
as the detail began or was extended on the Federal Tort Claims Act, and for
or before December 17, 2007. purposes of injury compensation as de-
(c) For the life of the ITEP, a Federal scribed in 5 U.S.C. chapter 81; and
agency may not send on assignment an (3) Is subject to any action that may
employee who has served on a detail impact the employees position while
under this part for more than 6 years he or she is detailed.
during his or her Federal career. OPM (b) An individual detailed from a pri-
may waive this provision upon request vate sector organization under this
of the agency head, or his or her des- part:
ignee.
(1) Is deemed to be an employee of
370.105 Written agreements. the Federal agency for purposes of:
(i) Title 5, United States Code, chap-
Before the detail begins, the agency
ter 73 (Suitability, Security, and Con-
and private sector organization must
duct);
enter into a written agreement with
the individual(s) detailed. The written (ii) Title 18, United States Code, sec-
agreement must be a three-party tion 201 (Bribery of Public Officials and
agreement between the Federal agency Witnesses), section 203 (Compensation
(agency head or designee), the indi- to Members of Congress, Officers, and
vidual (private sector or Federal), and Others in Matters Affecting the Gov-
the private sector organization. The ernment), section 205 (Activities of Of-
written agreement must include, but is ficers and Employees in Claims
not limited to, the following elements: Against and Other Matters Affecting
(a) The duties to be performed, dura- the Government), section 207 (Restric-
tion, and terms under which extensions tions on Former Officers, Employees,
to the detail may be granted; and Elected Officials of the Executive
(b) An individual development plan and Legislative Branches), section 208
describing the core IT competencies (Acts Affecting a Personal Financial
and technical skills that the detailee Interest), section 209 (Salary of Gov-
will be expected to enhance or acquire; ernment Officials and Employees Pay-
(c) Whether the individual will be su- able Only by the United States), sec-
pervised by a Federal or private sector tion 603 (Making Political Contribu-
employee; and a description of the su- tions), section 606 (Intimidation to Se-
pervision; cure Political Contributions), section
(d) The requirement for Federal em- 607 (Place of Solicitation), section 643
ployees to return to their employing (Accounting Generally for Public
agency upon completion of the detail Money), section 654 (Officer or Em-
for a period equal to the length of the ployee of United States Converting
detail including any extensions; and Property of Another), section 1905 (Dis-
(e) The obligations and responsibil- closure of Confidential Information

ities of all parties as described in 5 Generally), and section 1913 (Lobbying
U.S.C. 3702 through 3704. with Appropriated Moneys);
317
370.107 5 CFR Ch. I (1116 Edition)
(iii) Title 31, United States Code, sec- private sector organizations in each
tion 1343 (Buying and Leasing Pas- calendar year, at least 20 percent are to
senger Motor Vehicles and Aircraft), small business concerns, in accordance
section 1344 (Passenger Carrier Use), with 5 U.S.C. 3703(e)(1).
and section 1349(b), (Adverse Personnel (b) Agencies must round up to the
Actions); nearest whole number when calcu-
(iv) The Federal Tort Claims Act and lating the percentage of details to
any other Federal tort liability stat- small business concerns needed to meet
ute; the requirements of this section. For
(v) The Ethics in Government Act of example, if an agency detailed 11 indi-
1978; viduals to private sector organizations
(vi) Internal Revenue Code of 1986, during a given year, to meet the 20 per-
section 1043 (Sale of Property to Com- cent requirement, that agency must
ply with Conflict-of-Interest Require- have made at least 3 (rounded up from
ments); and 2.2) of these details to small business
(vii) Title 41, United States Code, sec- concerns.
tion 423 (Prohibition on Former Offi- (c) For purposes of this section,
cials Acceptance of Compensation year refers to the 12-month period
From Contractor). beginning on date of the enactment of
(2) Does not have any right or expec- the Act, December 17, 2002, and each
tation for Federal employment solely succeeding 12-month period in which
on the basis of his or her detail; any assignments are made. Assign-
(3) May not have access to any trade ments made in a year are those com-
secrets or to any other nonpublic infor- mencing in such year, in accordance
mation which is of commercial value with 5 U.S.C. 3703(e)(2).
to the private sector organization from (d) Agencies that do not meet the re-
which he or she is detailed; quirements of this section are subject
(4) Is subject to such regulations as to the reporting requirements in 5
the President may prescribe; and U.S.C. 3703(e)(3).
(5) Is covered by 5 U.S.C. chapter 81, (e) An agency that makes fewer than
Compensation for Work Injuries, as five details to private sector organiza-
provided in 5 U.S.C. 3704(c). tions in any year is not subject to this
(c) Individuals detailed under this section.
part may be supervised either by Fed-
eral or private sector managers. For 370.108 Reporting requirements.
example, a Federal employee on detail (a) Agencies using this part must pre-
to a private sector organization may be pare and submit to OPM semiannual
supervised by a private sector man- reports in accordance with 5 U.S.C. 3706
ager. Likewise, a private sector em- which must include:
ployee on detail to an agency may be (1) The total number of individuals
supervised by a Federal manager. detailed to, and the total number of in-
(d) As provided in 5 U.S.C. 3704(d), a dividuals detailed from, the agency
private sector organization may not during the report period;
charge the Federal Government, as di- (2) A brief description of each detail
rect or indirect costs under a Federal reported under paragraph (a)(1) of this
contract, for the costs of pay or bene- section including:
fits paid by that private sector organi- (i) The name of the detailed indi-
zation to an employee detailed to an vidual, and the private sector organiza-
agency under this part. tion and the agency (including the spe-
(e) Details may be terminated by the cific bureau or other agency compo-
agency (agency head or designee) or nent) to or from which such individual
private sector organization concerned was detailed;
for any reason at any time. (ii) The respective positions to and
from which the individual was detailed,
370.107 Details to small business con- including the duties and responsibil-
cerns. ities and the pay grade or level associ-
(a) The head of each agency must ated with each; and
take such actions as may be necessary (iii) The duration and objectives of
to ensure that, of the details made to the individuals detail; and
318
(3) Such other information as OPM this part to meet agency reporting re-
considers appropriate. quirements under 370.108(a) and (b).
(b) Reports are due to OPM no later
than April 7 and October 7 of each year PART 410TRAINING
for the immediately preceding 6-month
periods ending March 31 and September Subpart AGeneral Provisions
30, respectively.
(c) Agencies that do not meet the re- Sec.
quirements of 370.107 must prepare 410.101 Definitions.
and submit annual reports to Congress Subpart BPlanning and Evaluating
in accordance with 5 U.S.C. 3703(e)(3), Training
as appropriate.
410.201 Responsibilities of the head of an
370.109 Agency plans. agency.
Before detailing agency employees or 410.202 Responsibilities for evaluating train-
ing.
receiving private sector employees 410.203 Options for developing employees.
under this part, an agency must estab-
lish an Information Technology Ex- Subpart CEstablishing and Implementing
change Program Plan. The plan must Training Programs
include, but is not limited to, the fol-
lowing elements: 410.301 Scope and general conduct of train-
(a) Designation of the agency offi- ing programs.
410.302 Responsibilities of the head of an
cials with authority to review and ap- agency.
prove details; 410.303 Employee responsibilities.
(b) Estimated number of candidates 410.304 Funding training programs.
needed, both private sector and Federal 410.305 Establishing and using interagency
employees, to address IT workforce training.
needs within the agency; 410.306 Selecting and assigning employees
(c) Criteria for the selection of agen- to training.
cy employees for a detail under this 410.307 Training for promotion or placement
in other positions.
part. At a minimum, each agency 410.308 Training to obtain an academic de-
must: gree.
(1) Announce the detail, including 410.309 Agreements to continue in service.
eligibility requirements, to all eligible 410.310 Computing time in training.
employees;
(2) Provide for employee nomination Subpart DPaying for Training Expenses
by their organization or self-nomina- 410.401 Determining necessary training ex-
tion, to include endorsement by their penses.
respective supervisor; 410.402 Paying premium pay.
(3) Forward nominations to des- 410.403 Payments for temporary duty train-
ignated agency reviewing and approving assignments.
ing official for final selection. 410.404 Determining if a conference is a
(4) Consider: training activity.
(i) The extent to which the employ- 410.405 Protection of Government interest.
ees current competencies and skills Subpart EAccepting Contributions,
are being utilized in the agency; Awards, and Payments From Non-
(ii) The employees capability to im- Government Organizations
prove, enhance, or learn skills and ac-
quire competencies needed in the agen- 410.501 Scope.
cy; and 410.502 Authority of the head of an agency.
(iii) The benefits to the agency which 410.503 Records.
would result from selecting the em-
Subpart FReporting
ployee for detail.
(d) Return rights and continuing 410.601 Reporting.
service requirements for Federal em- AUTHORITY: 5 U.S.C. 1103(c), 2301, 2302, 4101,
ployees returning from a detail; and et seq.; E.O. 11348, 3 CFR, 1967 Comp., p. 275,
(e) Documentation and recordkeeping E.O. 11478, 3 CFR 19661970 Comp., page 803,
requirements sufficient to allow recon- unless otherwise noted, E.O. 13087; and E.O.
struction of each action taken under 13152.
319
410.101 5 CFR Ch. I (1116 Edition)
SOURCE: 61 FR 66193, Dec. 17, 1996, unless agencies or shared by two or more
otherwise noted. agencies.
(h) State and local government have
Subpart AGeneral Provisions the meanings given to these terms by
410.101 Definitions. Code.
In this part: (i) Established contact hours are the
(a) Agency, employee, Government, number of academic credit hours as-
signed to a course(s) times the number
Government facility, and non-Government
of weeks in a term times the number of
facility have the meanings given these
terms required to complete the degree.
terms in section 4101 of title 5, United
States Code. [61 FR 66193, Dec. 17, 1996, as amended at 69
(b) Exceptions to organizations and FR 33276, June 15, 2004]
employees covered by this subpart in-
clude: Subpart BPlanning and
(1) Those named in section 4102 of Evaluating Training
title 5, United States Code, and
(2) The U.S. Postal Service and Post- 410.201 Responsibilities of the head
al Rate Commission and their employ- of an agency.
ees, as provided in Pub. L. 91375, en- Agency employee development plans
acted August 12, 1970. and programs should be designed to
(c) Training has the meaning given to build or support an agency workforce
the term in section 4101 of title 5, capable of achieving agency mission
United States Code. and performance goals and facilitating
(d) Mission-related training is training continuous improvement of employee
that supports agency goals by improv- and organizational performance. In de-
ing organizational performance at any veloping strategies to train employees,
appropriate level in the agency, as de- heads of agencies or their designee(s),
termined by the head of the agency. under section 4103 of title 5, United
This includes training that: States Code, and Executive Order 11348,
(1) Supports the agencys strategic are required to:
plan and performance objectives; (a) Establish, budget for, operate,
maintain, and evaluate plans and pro-
(2) Improves an employees current
grams for training agency employees
job performance;
by, in, and through Government or
(3) Allows for expansion or enhance- non-Government facilities, as appro-
ment of an employees current job; priate;
(4) Enables an employee to perform (b) Establish policies governing em-
needed or potentially needed duties ployee training, including a statement
outside the current job at the same of the alignment of employee training
level of responsibility; or and development with agency strategic
(5) Meets organizational needs in re- plans, the assignment of responsibility
sponse to human resource plans and re- to ensure the training goals are
engineering, downsizing, restructuring, achieved, and the delegation of train-
and/or program changes. ing approval authority to the lowest
(e) Retraining means training and de- appropriate level;
velopment provided to address an indi- (c) Establish priorities for training
viduals skills obsolescence in the cur- employees and allocate resources ac-
rent position and/or training and devel- cording to those priorities; and
opment to prepare an individual for a (d) Develop and maintain plans and
different occupation, in the same agen- programs that:
cy, in another Government agency, or (1) Identify mission-critical occupa-
in the private sector. tions and competencies;
(f) Continued service agreement has the (2) Identify workforce competency
meaning given to service agreements gaps;
in section 4108 of title 5, United States (3) Include strategies for closing com-
Code. petency gaps; and

(g) Interagency training means train- (4) Assess periodically, but not less
ing provided by one agency for other often than annually, the overall agency
320
talent management program to iden- that the selection of employees for

tify training needs within the agency training is made without regard to
as required by section 303 of Executive race, color, religion, sex (including
Order 11348. pregnancy and gender identity), na-
[74 FR 65387, Dec. 10, 2009]
tional origin, age (as defined by the
Age Discrimination in Employment
410.202 Responsibilities for evalu- Act of 1967, as amended), disability, ge-
ating training. netic information (including family
Agencies must evaluate their train- medical history), marital status, polit-
ing programs annually to determine ical affiliation, sexual orientation,
how well such plans and programs con- labor organization affiliation or non-
tribute to mission accomplishment and affiliation, status as parent, or any
meet organizational performance other non-merit-based factor, unless
goals. specifically designated by statute as a
factor that must be taken into consid-
[74 FR 65387, Dec. 10, 2009] eration when awarding such benefits,
or retaliation for exercising rights with
410.203 Options for developing em-
ployees. respect to the categories enumerated
above, where retaliation rights are
Agencies may use a full range of op- available, and with proper regard for
tions to meet their mission-related or- their privacy and constitutional rights
ganizational and employee develop- as provided by merit system principles
ment needs, such as classroom train- set forth in 5 U.S.C. 2301(b)(2).
ing, on-the-job training, technology- (2) The head of each agency shall pre-
based training, satellite training, em- scribe procedures as are necessary to
ployees self-development activities, ensure that the training facility and
coaching, mentoring, career develop- curriculum are accessible to employees
ment counseling, details, rotational as- with disabilities.
signments, cross training, and develop-
(3) The head of each agency shall not
mental activities at retreats and con-
allow training in a facility that dis-
ferences.
criminates in the admission or treat-
[61 FR 66193, Dec. 17, 1996. Redesignated at 74 ment of students.
FR 65388, Dec. 10, 2009] (b)(1) Training of Presidential ap-
pointees. The Office of Personnel Man-
Subpart CEstablishing and agement delegates to the head of each
Implementing Training Programs agency authority to authorize training
for officials appointed by the Presi-
410.301 Scope and general conduct of dent. In exercising this authority, the
training programs. head of an agency must ensure that the
(a) Authority. The requirements for training is in compliance with chapter
establishing training programs and 41 of title 5, United States Code, and
plans are found in section 4103(a) of with this part. This authority may not
title 5, United States Code, and Execu- be delegated to a subordinate.
tive Order 11348. (2) Records. When exercising this del-
(b) Alignment with other human re- egation of authority, the head of an
source functions. Training programs es- agency must maintain records that in-
tablished by agencies under chapter 41 clude:
of title 5, United States Code, should be (i) The name and position title of the
integrated with other personnel man- official;
agement and operating activities, (ii) A description of the training, its
under administrative agreements as location, vendor, cost, and duration;
appropriate, to the maximum possible and
extent. (iii) A statement justifying the train-
ing and describing how the official will
410.302 Responsibilities of the head apply it during his or her term of of-
of an agency. fice.
(a) Specific responsibilities. (1) The (3) Review of delegation. Exercise of

head of each agency must prescribe this authority is subject to U.S. Office
procedures as are necessary to ensure of Personnel Management review.
321
410.303 5 CFR Ch. I (1116 Edition)
(c) Training for the head of an agency. 410.305 Establishing and using inter-
Since self-review constitutes a conflict agency training.
of interest, heads of agencies must sub- Executive departments, independent
mit their own requests for training to establishments, Government corpora-
the U.S. Office of Personnel Manage- tions subject to chapter 91 of title 31,
ment for approval. the Library of Congress, and the Gov-
(d) The head of the agency shall es- ernment Printing office may provide or
tablish the form and manner of main- share training programs developed for
taining agency records related to train- its employees of other agencies under
ing plans, expenditures, and activities. section 4120 of title 5, United States
(e) The head of the agency shall es- Code, when this would result in better
tablish written procedures which cover training, improved service, or savings
the minimum requirements for contin- to the Government. Section 302(d) of
Executive Order 11348 allows agencies
ued service agreements. (See also 5
excluded from section 4102 of title 5,
CFR 410.310.) United States Code, to also receive
(f) The head of each agency shall pre- interagency training when this would
scribe procedures, as authorized by sec- result in better training, improved
tion 402 of Executive Order No. 11348, service, or savings to the Government.
for obtaining U.S. Department of State Section 201(e) of Executive Order 11348
advice before assigning an employee provides for the Office of Personnel
who is stationed within the continental Management to coordinate interagency
limits of the United States to training training conducted by and for agencies
outside the continental United States (including agencies and portions of
that is provided by a foreign govern- agencies excepted by section 4102(a) of
ment, international organization, or Title 5, United States Code).
instrumentality of either.
410.306 Selecting and assigning em-
[61 FR 66193, Dec. 17, 1996, as amended at 63 ployees to training.
FR 43867, Aug. 17, 1998; 79 FR 43923, July 29, (a) Each agency shall establish cri-
2014]
teria for the fair and equitable selec-
410.303 Employee responsibilities. tion and assignment of employees to
training consistent with merit system
Employees are responsible for self-de- principles specified in 5 U.S.C.
velopment, for successfully completing 2301(b)(1) and (2).
and applying authorized training, and (b) Persons on Intergovernmental
for fulfilling continued service agree- Personnel Act mobility assignments
ments. In addition, they share with may be assigned to training if that
their agencies the responsibility to training is in the interest of the Gov-
identify training needed to improve in- ernment.
dividual and organizational perform- (1) A State or local government em-
ance and identify methods to meet ployee given an appointment in a Fed-
those needs, effectively and efficiently. eral agency under the authority of sec-
tion 3374(b) of title 5 of the United
410.304 Funding training programs. States Code, is deemed an employee of
the Federal agency. The agency may
Section 4112 of title 5, United States provide training for the State or local
Code, provides for agencies paying the government employee as it does for
costs of their training programs and other agency employees.
plans from applicable appropriations or (2) A State or local government em-
from other funds available. Training ployee on detail to a Federal agency
costs associated with program accom- under the authority of section 3374(c)
plishment may be funded by appropria- of title 5 of the United States Code, is
tions applicable to that program area. not deemed an employee of the Federal
In addition, section 4109(a)(2) of title 5, agency. However, the detailed State or
United States Code, provides authority local government employee may be ad-
for agencies and employees to share mitted to training programs the agen-
the expenses of training. cy has established for Federal per-
sonnel and may be trained in the rules,
322
practices, procedures and/or systems grade of the position the employee held
pertaining to the Federal government. before pay retention.
(c) Subject to the prohibitions of (2) Training for placement in another
410.308(a) of this part, an agency may agency. Under the authority of 5 U.S.C.
pay all or part of the training expenses 4103(b), and consistent with merit sys-
of students hired under the Student Ca- tem principles set forth in 5 U.S.C.
reer Experience Program (see 5 CFR 2301, an agency may train an employee
213.3202(d)(10)). to meet the qualification requirements
[61 FR 66193, Dec. 17, 1996; 61 FR 68119, Dec. of a position in another agency if the
27, 1996] head of the agency determines that
such training would be in the interest
410.307 Training for promotion or of the Government.
placement in other positions. (i) Before undertaking any training
(a) General. In determining whether under this section, the head of the
to provide training under this section, agency shall determine that there ex-
agencies should take into account: ists a reasonable expectation of place-
(1) Agency authority to modify quali- ment in another agency.
fication requirements in certain situa- (ii) When selecting an employee for
tions as provided in the OPM Operating training under this section, the head of
Manual for Qualification Standards for the agency shall consider:
General Schedule Positions; (A) The extent to which the employ-
(2) Agency authority to establish ees current skills, knowledge, and
training programs that provide inten- abilities may be utilized in the new po-
sive and directly job-related training sition;
to substitute for all or part of the expe- (B) The employees capability to
rience (but not education, licensing, learn skills and acquire knowledge and
certification, or other specific creden- abilities needed in the new position;
tials), required by OPM qualification and
standards. Such training programs (C) The benefits to the Government
may be established to provide employ- which would result from retaining the
ees with the opportunity to acquire the employee in the Federal service.
experience and knowledge, skills, and (3) Training displaced or surplus em-
abilities necessary to qualify for an- ployees. Displaced or surplus employees
other position (including at a higher as defined in 5 CFR 330.602 may be eli-
grade) at an accelerated rate; and gible for training or retraining for posi-
(3) Time-in-grade restrictions on ad- tions outside Government through pro-
vancement (see 5 CFR 300.603(b)(6)). grams provided under 29 U.S.C. 1651, or
(b) Training for promotion. Under the similar authorities. An agency may use
authority of 5 U.S.C. 4103, and con- its appropriated funds for training dis-
sistent with merit system principles placed or surplus employees for posi-
set forth in 5 U.S.C. 2301(b)(1) and (2), tions outside Government only when
an agency may provide training to non- specifically authorized by legislation
temporary employees that in certain to do so.
instances may lead to promotion. An (4) Career transition assistance plans.
agency must follow its competitive Under 5 CFR part 330, subpart F, agen-
procedures under part 335 of this chap- cies are required to establish career
ter when selecting a non-temporary transition assistance plans (CTAP) to
employee for training that permits provide career transition services to
noncompetitive promotion after suc- displaced and surplus employees.
cessful completion of the training. (i) Under the authority of 5 U.S.C.
(c) Training for placement in other 4109, an agency may:
agency positions, in other agencies, or (A) Train employees in the use of the
outside Government(1) Grade or pay re- CTAP services;
tention. Under the authority of 5 U.S.C. (B) Provide vocational and career as-
4103 and 5 U.S.C. 5364, an agency may sessment and counseling services;
train an employee to meet the quali- (C) Train employees in job search
fication requirements of another posi- skills, techniques, and strategies; and

tion in the agency if the new position (D) Pay for training related expenses
is at or below the retained grade or the as provided in 5 U.S.C. 4109(a)(2).
323
410.308 5 CFR Ch. I (1116 Edition)
(ii) Agency CTAPs will include plans quirements for continued service
for retraining displaced or surplus em- agreements. These requirements shall
ployees covered by this part. include procedures the agency con-
siders necessary to protect the Govern-
FR 67605, Nov. 3, 2010] ments interest should the employee
fail to successfully complete training.
410.308 Training to obtain an aca- (2) An employee selected for training
demic degree. subject to an agency continued service
(a) An agency may authorize training agreement must sign an agreement to
for an employee to obtain an academic continue in service after training prior
degree under conditions prescribed at 5 to starting the training. The period of
U.S.C. 4107(a). service will equal at least three times
(b) Colleges and universities partici- the length of the training.
pating in an academic degree training (3) The head of an agency shall estab-
program must be accredited by a na- lish procedures to compute length of
tionally recognized body. A nation- training period for academic degree
ally recognized body is a regional, na- training programs in accordance with
tional, or international accrediting or- 410.310(d).
ganization recognized by the U.S. De- (c) Failure to fulfill agreements. With a
partment of Education. The listing of signed agreement, the agency has a
accrediting bodies is available through right to recover training costs, except
the Department. pay or other compensation, if the em-
(c) The selection of employees for an ployee voluntarily separates from Gov-
academic degree training program ernment service. The agency shall pro-
must follow the requirements of vide procedures to enable the employee
335.103(b)(3), 335.103(c)(1)(iii), and sub- to obtain a reconsideration of the re-
part A of part 300 of this chapter. The covery amount or to appeal for a waiv-
selection and assignment must be ac- er of the agencys right to recover.
complished to meet one or more of the [61 FR 66193, Dec. 17, 1996; 63 FR 72097, Dec.
criteria identified in 5 U.S.C. 4107(a). 31, 1998, as amended at 69 FR 33277, June 15,
Therefore, an agency may competi- 2004]
tively select and assign an employee to
an academic degree training program 410.310 Computing time in training.
that qualifies the employee for pro- For the purpose of computing time in
motion to a higher graded position or training for continued service agree-
to a position that requires an academic ments under section 4108 of title 5,
degree. United States Code:
(d) Agency heads must assess and
(a) An employee on an 8-hour day
maintain records on the effectiveness
work schedule assigned to training is
of training assignments under this sec-
counted as being in training for the
tion.
same number of hours he or she is in
(e) On a periodic basis, OPM may repay status during the training assign-
quest agency information on the use ment. If the employee is not in pay sta-
and effectiveness of training assign- tus during the training, the employee
ments under this section. is counted as being in training for the
[69 FR 33277, June 15, 2004] number of hours he or she is granted
leave without pay for the purpose of
410.309 Agreements to continue in the training.
service. (b) For an employee on an alter-
(a) Authority. Continued service native work schedule, the agency is re-
agreements are provided for in section sponsible for determining the number
4108 of title 5, United States Code. of hours the employee is in pay status
Agencies have the authority to deter- during the training assignment. If the
mine when such agreements will be re- employee is not in pay status during
quired. the training, the employee is counted
(b) Requirements. (1) The head of the as being in training for the number of
agency shall establish written proce- hours he or she is granted leave with-
dures which include the minimum re- out pay for the purpose of the training.
324
(c) An employee on an 8-hour or an training at institutions of higher learn-

alternative work schedule assigned to ing.
training on less than a full-time basis (2) Training at night. An employee
is counted as being in training for the given training at night because situa-
number of hours he or she spends in tions that he or she must learn to han-
class, in formal computer-based train- dle occur only at night shall be paid by
ing, in satellite training, in formal the applicable premium pay.
self-study programs, or with the train- (3) Cost savings. An employee given
ing instructor, unless a different meth- training on overtime, on a holiday, or
od is determined by the agency. on a Sunday because the costs of the
(d) When an employee is pursuing an training, premium pay included, are
academic degree through an agency less than the costs of the same training
academic degree training program, an confined to regular work hours shall be
agency may compute the length of the paid the applicable premium pay.
academic degree training period based (4) Availability pay. An agency shall
on the academic institutions estab- continue to pay availability pay during
lished contact hours. agency-sanctioned training to a crimi-
[61 FR 66193, Dec. 17, 1996, as amended at 69 nal investigator who is eligible for it
FR 33277, June 15, 2004] under 5 U.S.C. 5545a and implementing
regulations. Agencies may, at their dis-
Subpart DPaying for Training cretion, provide availability pay to in-
Expenses vestigators during periods of initial,
basic training. (See 5 CFR 550.185 (b)
410.401 Determining necessary train- and (c).)
ing expenses. (5) Standby and administratively un-
(a) The head of an agency determines controllable duty. An agency may con-
which expenses constitute necessary tinue to pay annual premium pay for
training expenses under section 4109 of regularly scheduled standby duty or
title 5, United States Code. administratively uncontrollable over-
(b) An agency may pay, or reimburse time work, during periods of temporary
an employee, for necessary expenses in- assignment for training as provided by
curred in connection with approved 5 CFR 550.162(c).
training as provided in section (6) Firefighter overtime pay. (i) A fire-
4109(a)(2) of title 5, United States Code. fighter compensated under part 550,
Necessary training expenses do not in- subpart M, of this chapter shall receive
clude an employees pay or other com- basic pay and overtime pay for the fire-
pensation. fighters regular tour of duty (as de-
fined in 550.1302 of this chapter) in any
410.402 Paying premium pay. week in which attendance at agency-
(a) Prohibitions. Except as provided by sanctioned training reduces the hours
paragraph (b) of this section, an agency in the firefighters regular tour of
may not use its funds, appropriated or duty.
otherwise available, to pay premium (ii) The special pay protection pro-
pay to an employee engaged in training vided by paragraph (b)(6)(i) of this sec-
by, in, or through Government or non- tion does not apply to firefighters who
government facilities. voluntarily participate in training dur-
(b) Exceptions. The following are ex- ing non-duty hours, leave hours, or pe-
cepted form the provision in paragraph riods of excused absence. It also does
(a) of this section prohibiting the pay- not apply if the firefighter is entitled
ment of premium pay: to a greater amount of pay based on ac-
(1) Continuation of premium pay. An tual work hours during the week in
employee given training during a pe- which training occurs.
riod of duty for which he or she is al- (7) Agency exemption. An employee
ready receiving premium pay for over- given training during a period not oth-
time, night, holiday, or Sunday work erwise covered by a provision of this
shall continue to receive that premium paragraph may be paid premium pay
pay. This exception does not apply to when the employing agency has been
an employee assigned to full-time granted an exception to paragraph (a)
325
410.403 5 CFR Ch. I (1116 Edition)
of this section by the U.S. Office of Atmospheric Administration, in ac-

Personnel Management. cordance with sections 404 and 405 of
(8) Border Patrol agent overtime supple- title 37, United States Code, and the
ment. A Border Patrol agent may re- Joint Federal travel Regulations for
ceive an overtime supplement under 5 the Uniformed Services).
U.S.C. 5550 and 5 CFR part 550, subpart (b) An agency may pay a reduced per
P, during training, subject to the limi- diem rate, such as a standardized pay-
tation in 5 U.S.C. 5550(b)(2)(G) and ment less than the maximum per diem
(b)(3)(G) and 5 CFR 550.1622(b). rate for a geographical area. If a re-
(c) An employee who is excepted
duced or standardized per diem rate
under paragraph (b) of this section is
was not authorized in advance of the
eligible to receive premium pay in ac-
cordance with the applicable pay au- travel and the fees paid to a training
thorities. institution include lodging or meal
(d) Regulations governing overtime costs, an appropriate deduction shall
pay for employees covered by Fair be made from the total per diem rate
Labor Standards Act (FLSA) during payable on the travel voucher (see 41
training, education, lectures, or con- CFR 3017.12).
ferences are found in 551.423 of this (c) An agency may pay limited relo-
chapter. The prohibitions on paying cation expenses for the transportation
premium pay found in paragraph (a) of of the employees immediate family,
this section are not applicable for the household goods and personal effects,
purpose of paying FLSA overtime pay. including packing, crating, tempo-
(e) Compensation for time spent trav- rarily storing, draying, and unpacking
eling to and from training. (1) Com- the household goods in accordance with
pensation provisions are contained in 5 section 5724 of title 5, United States
CFR 550.112(g) for time spent traveling Code (or, for commissioned officers of
for employees subject to title 5 of the the National Oceanic and Atmospheric
United States Code. Administration, in accordance with
(2) Compensation provisions are con- sections 406 and 409 of title 37, United
tained in 5 CFR 551.422 for time spent States Code, and the Joint federal trav-
traveling for employees covered by the
el Regulations for the uniformed Serv-
Fair Labor Standards Act. (See also 29
ices). Limited relocation expenses are
CFR 785.33 through 785.41.)
payable only when the estimated costs
[61 FR 66193, Dec. 17, 1996, as amended at 63 of transportation and related services
FR 64592, Nov. 23, 1998; 64 FR 69172, Dec. 10, are less than the estimated aggregate
1999; 67 FR 15466, Apr. 2, 2002; 80 FR 58111,
Sept. 25, 2015]
per diem or actual subsistence expense
payments for the period of training. An
410.403 Payments for temporary duty employee selected for temporary duty
training assignments. training may receive travel and per
Section 4109(a)(2) of title 5, United diem (or actual subsistence expenses)
States Code, provides that an agency for the period of the assignment or
may pay, or reimburse an employee payment of limited relocation ex-
for, all or a part of the necessary expenses, but not both.
penses of training, including the nec-
[61 FR 66193, Dec. 17, 1996; 61 FR 66821, Dec.
essary costs of travel; per diem ex- 30, 1996]
penses; or limited relocation expenses
including transportation of the imme- 410.404 Determining if a conference
diate family, household goods and per- is a training activity.
sonal effects:
(a) If an agency chooses to pay per Agencies may sponsor an employees
diem, or in unusual circumstances the attendance at a conference as a devel-
actual subsistence, expenses for an em- opmental assignment under section
ployee on a temporary duty training 4110 of title 5, United States Code,
assignment, payment must be in ac- when
cordance with 41 CFR part 3017 or 41 (a) The announced purpose of the
CFR part 3018 (or, for commissioned conference is educational or instruc-
officers of the National Oceanic and tional;
326
(b) More than half of the time is or in kind) incident to training or to

scheduled for a planned, organized ex- accept payment (in cash or in kind) of
change of information between pre- travel, subsistence, and other expenses
senters and audience which meets the incident to attendance at meetings if
definition of training in section 4101 of (1) The conditions specified in section
title 5, United States Code; 4111 of title 5, United States Code, are
(c) The content of the conference is met; and
germane to improving individual and/ (2) In the judgment of the agency
or organizational performance, and head, the following two conditions are
(d) Development benefits will be de- met:
rived through the employees attend- (i) The contribution, award, or pay-
ance. ment is not a reward for services to the
organization prior to the training or
410.405 Protection of Government in- meeting; and
terest.
(ii) Acceptance of the contribution,
The head of an agency shall establish award, or payment:
such procedures as he or she considers (A) Would not reflect unfavorably on
necessary to protect the Governments the employees ability to carry out of-
interest when employees fail to com- ficial duties in a fair and objective
plete, or to successfully complete, manner;
training for which the agency pays the (B) Would not compromise the hon-
expenses. esty and integrity of Government pro-
grams or of Government employees and
Subpart EAccepting Contribu- their official actions or decisions;
tions, Awards, and Payments (C) Would be compatible with the
From Non-Government Orga- Ethics in Government Act of 1978, as
nizations amended; and
(D) Would otherwise be proper and
410.501 Scope. ethical for the employee concerned
(a) Section 4111 of title 5, United given the circumstances of the par-
States Code, describes conditions for ticular case.
employee acceptance of contributions, (b) Delegation of authority. An agen-
awards, and payments made in connec- cy head may delegate authority to au-
tion with non-Government sponsored thorize the acceptance of contribu-
training or meetings which an em- tions, awards, and payments under this
ployee attends while on duty or when section. The designated official must
the agency pays the training or meet- ensure that
ing attendance expenses, in whole or in (1) The policies of the agency head
part. are reflected in each decision; and
(b) This subpart does not limit the (2) The circumstances of each case
authority of an agency head to estab- are fully evaluated under conditions
lish procedures on the acceptance of set forth in 410.502(a).
contributions, awards, and payments in (c) Acceptance of contributions,
connection with any training and awards, and payments. An employee
meetings that are outside the scope of may accept a contribution, award, or
this subpart in accordance with laws payment (whether made in cash or in
and regulations governing Government kind) that falls within the scope of this
ethics and governing acceptance of section only when he or she has spe-
travel reimbursements from non-Fed- cific written authorization.
eral sources. (d) When more than one non-Govern-
[61 FR 66193, Dec. 17, 1996, as amended at 63 ment organization participates in mak-
FR 16877, Apr. 7, 1998] ing a single contribution, award, or
payment, the organization referred
410.502 Authority of the head of an to in this subsection is the one that:
agency. (1) Selects the recipient; and
(a) In writing, the head of an agency (2) Administers the funds from which
may authorize an agency employee to the contribution, award, or payment is
accept a contribution or award (in cash made.
327
410.503 5 CFR Ch. I (1116 Edition)
410.503 Records. Subpart CSenior Executive Service

Candidate Development Programs
An agency shall maintain, in such
form and manner as the agency head 412.301 Obtaining approval to conduct a
considers appropriate, the following Senior Executive Service candidate de-
records in connection with each con- velopment program (SESCDP).
tribution, awards, or payment made 412.302 Criteria for a Senior Executive Serv-
and accepted under authority of this ice candidate development program
section: The recipients name; the or- (SESCDP).
ganizations name; the amount and na-
ture of the contribution, award, or pay- Subpart DExecutive Development
ment and the purpose for which it is to 412.401 Continuing executive development.
be used; and a copy of the written au-
thorization required by 410.502(a). AUTHORITY: 5 U.S.C. 1103 (c)(2)(C), 3396, 3397,
4101 et seq.
Subpart FReporting SOURCE: 74 FR 65388, Dec. 10, 2009, unless

otherwise noted.
410.601 Reporting.
(a) Each agency shall maintain Subpart AGeneral Provisions
records of training plans, expenditures,
and activities in such form and manner 412.101 Coverage.
as necessary to submit the recorded This part applies to all incumbents
data to the Office of Personnel Man- of, and candidates for, supervisory,
agement (OPM) through the OPM Gov- managerial, and executive positions in
ernmentwide Electronic Data Collec- the General Schedule, the Senior Exec-
tion System. utive Service (SES), or equivalent pay
(b) Beginning December 31, 2006, each systems also covered by part 410 of this
agency shall report the training data chapter.
for its employees training and devel-
opment at such times and in such form 412.102 Purpose.
as required for the OPM Government-
(a) This part implements for super-
wide Electronic Data Collection Sys-
tem, which is explained in the Guide to visors, managers, and executives the
Personnel Recordkeeping and the Guide provisions of 5 U.S.C. chapter 41, re-
to Human Resources Reporting. lated to training, and 5 U.S.C. 3396, re-
(c) Each agency shall establish a lated to the criteria for programs of
Schedule of Records for information re- systematic development of candidates
quired to be maintained by this chap- for the SES and the continuing devel-
ter in accordance with regulations pro- opment of SES members.
mulgated by the National Archives and (b) This part identifies a continuum
Records Administration (NARA). of leadership development, starting
with supervisory positions and pro-
[71 FR 28547, May 17, 2006. Redesignated and ceeding through management and exec-
amended at 74 FR 65388, Dec. 10, 2009]
utive positions Governmentwide. For
this reason, this part provides require-
PART 412SUPERVISORY, MAN- ments by which agencies:
AGEMENT, AND EXECUTIVE DE- (1) Develop the competencies needed
VELOPMENT by supervisors, managers, and execu-
tives;
Subpart AGeneral Provisions (2) Provide learning through con-
Sec. tinuing development and training in
412.101 Coverage. the context of succession planning; and
412.102 Purpose. (3) Foster a broad agency and Gov-
ernmentwide perspective to prepare in-
Subpart BSuccession Planning dividuals for advancement, thus sup-
412.201 Management succession. plying the agency and the Government
412.202 Systematic training and develop- with an adequate number of well-pre-

ment of supervisors, managers, and ex- pared and qualified candidates to fill
ecutives. leadership positions.
328
Subpart BSuccession Planning visor and manager additional training

on the use of appropriate actions, op-
412.201 Management succession. tions, and strategies to:
The head of each agency, in consulta- (1) Mentor employees;
tion with OPM, must develop a com- (2) Improve employee performance
prehensive management succession and productivity;
program, based on the agencys work- (3) Conduct employee performance
force succession plans, to fill agency appraisals in accordance with agency
supervisory and managerial positions. appraisal systems; and
These programs must be supported by (4) Identify and assist employees with
employee training and development unacceptable performance.
programs. The focus of the program (c) Provide training when individuals
should be to develop managers as well make critical career transitions, for in-
as strengthen organizational capa- stance from non-supervisory to man-
bility, and to ensure an adequate num- ager or from manager to executive.
ber of well-prepared and qualified can- This training should be consistent with
didates for leadership positions. These assessments of the agencys and the in-
programs must:
dividuals needs.
(a) Implement developmental train-
ing consistent with agency succession
management plans; Subpart CSenior Executive Serv-
(b) Provide continuing learning expe- ice Candidate Development
riences throughout an employees ca- Programs
reer, such as details, mentoring, coach-
ing, learning groups, and projects. 412.301 Obtaining approval to con-
These experiences should provide broad duct a Senior Executive Service
knowledge and practical experience candidate development program
linked to OPMs Federal leadership (SESCDP).
competencies, as well as agency-identi- (a) An SESCDP is an OPM-approved
fied, mission-related competencies, and training program designed to develop
should be consistent with the agencys the executive qualifications of employ-
succession management plan; and ees with strong executive potential to
(c) Include program evaluations pur- qualify them for and authorize their
suant to 5 CFR 410.202. initial career appointment in the SES.
An agency conducting an SESCDP may
412.202 Systematic training and de-
velopment of supervisors, man- submit program graduates for Quali-
agers, and executives. fications Review Board (QRB) review of
their executive qualifications under 5
All agencies must provide for the de-
CFR 317.502. A program graduate cer-
velopment of individuals in super-
tified by a QRB may receive an initial
visory, managerial and executive posi-
career appointment without further
tions, as well as individuals whom the
competition to any SES position for
agency identifies as potential can-
didates for those positions, based on which he or she meets the professional
the agencies succession plans. Agen- and technical qualifications require-
cies also must issue written policies to ments.
ensure they: (b) An agency covered by subchapter
(a) Design and implement leadership II of chapter 31 of title 5, United States
development programs integrated with Code, may apply to OPM to conduct an
the employee development plans, pro- SESCDP alone or on behalf of a group
grams, and strategies required by 5 of agencies. (In this subpart, the term
CFR 410.201, and that foster a broad agency refers to either a single agen-
agency and Governmentwide perspec- cy or a group of agencies acting in
tive; partnership under this subpart.) Any
(b) Provide training within one year agency developing an SESCDP must
of an employees initial appointment submit a policy document describing
to a supervisory position and follow up its program methodologies to OPM for

periodically, but at least once every formal approval before implementing
three years, by providing each super- the SESCDP. An agency must seek
329
412.302 5 CFR Ch. I (1116 Edition)
OPM approval every five years there- qualifications. The ERB must also
after, and must also consult OPM be- oversee the writing and implementa-
fore implementing a change substan- tion of a removal policy for program
tially altering how the SESCDP com- candidates who do not make adequate
plies with the requirements of this reg- progress.
ulation. An agency implementing an (b) Recruitment. In recruiting, the
SESCDP without first obtaining formal agency, consistent with the merit sys-
approval may not submit graduates of tem principles in 5 U.S.C. 2301 (b)(1)
the program for QRB review. and (2), takes into consideration the
(c) An agency that obtained OPM ap- goal of achieving a diversified work-
proval under previous regulations must force. Recruitment for the program is
apply for re-approval in accordance from all groups of qualified individuals
with requirements in paragraph (b) and within the civil service, or all groups of
this subpart before initiating a new qualified individuals whether or not
SESCDP. All existing SESCDP approv- within the civil service. The number of
als expire within 2 years after publica- expected SES vacancies must be con-
tion of this regulation. sidered as one factor in determining
(d) An agency covered by subchapter the number of selected candidates.
II of chapter 31 of title 5, United States (c) Senior Executive Service candidate
Code, may authorize a major agency development program requirements. An
component employing senior execu- SESCDP lasts a minimum of 12
tives to apply directly to OPM for ap- months. To graduate, a candidate must
proval to conduct an SESCDP. Such an accomplish the requirements of the
application from a component must be program established by his or her agen-
accompanied by the agencys written cy. Each individual participating in an
endorsement. To obtain approval, the SESCDP must have:
component must meet the SESCDP re- (1) A documented development plan
quirements of this subpart independent based upon a competency-based needs
of agency involvement. determination and approved by the
(e) As always, agencies should be agency ERB. The components of the
mindful of merit principles in carrying development plan must:
out their functions under this subpart. (i) Address the executive core quali-
fications (ECQs);
412.302 Criteria for a Senior Execu- (ii) Address Federal Government
tive Service candidate development leadership challenges crucial to the
program (SESCDP). senior executive;
(a) Executive Resources Board require- (iii) Provide increased knowledge and
ments. An agencys Executive Re- understanding of the overall func-
sources Board (ERB) must oversee the tioning of the agency, so the partici-
SESCDP. The ERB ensures the devel- pant is prepared for a range of posi-
opment program lasts a minimum of 12 tions and responsibilities;
months and includes substantive devel- (iv) Include interaction with senior
opmental experiences that should employees outside the candidates de-
equip a successful candidate to accom- partment or agency to foster a broader
plish Federal Government missions as perspective; and
a senior executive. The agency ERB (v) Have Governmentwide or multi-
must oversee and be accountable for agency applicability in the nature and
SESCDP recruitment, merit staffing, scope of the training;
and assessment. The agency ERB must (2) A formal interagency and/or
ensure the program follows SES merit multi-sector training experience last-
staffing provisions in 5 CFR 317.501, ing at least 80 hours that addresses the
subject to the condition explained in ECQs and their application to SES po-
412.302(d)(1) of this part. The ERB also sitions Governmentwide. The training
must oversee development, evaluation, experience must include interaction
progress in the program, and gradua- with senior employees outside the can-
tion of candidates, and submit for QRB didates department or agency;
review within 90 workdays of gradua- (3) A developmental assignment of at

tion those candidates determined by least 4 months of full-time service to
the ERB to possess the executive core include at least one assignment of 90
330
continuous days in a position other created for developmental purposes

than, and substantially different from, connected with the SESCDP from the
the candidates position of record. The appointment procedures of part 302 of
assignment must include executive- this chapter. Competition for these ap-
level responsibility and differ from the pointments must be conducted pursu-
candidates current and past assign- ant to SES merit staffing procedures at
ments in ways that broaden the can- 317.501 of this chapter, except agencies
didates experience, as well as chal- must follow the principle of veterans
lenge the candidate with respect to preference as far as administratively
leadership competencies and the ECQs. feasible, in accordance with 302.101(c)
Assignments need not be restricted to of this chapter. Candidates serving
the agency, the Executive Branch, or under this Schedule B appointment
the Federal Government, so long as may not be used to fill an agencys reg-
they can be accomplished in compli- ular positions on a continuing basis.
ance with applicable law and Federal (2) An individual who currently holds
and agency specific ethics regulations. a career or career-type appointment in
The candidate is held accountable for the civil service must be selected
organizational or agency results through SES merit staffing procedures
achieved during the assignment. If the at 317.501 of this chapter. Subject to
assignment is in a non-Federal organi- the approval of the agency in which the
zation, the ERB must provide for ade- selectee is employed, such an indi-
quate documentation of the individ- vidual may be selected for and partici-
uals actions and accomplishments and pate in an SESCDP in any agency
must determine the assignment will while serving in his or her position of
contribute to development of the can- record. The individual may continue to
didates executive qualifications; and participate in the SESCDP upon mov-
(4) A mentor who is a member of the ing to other civil service positions
SES or is otherwise determined by the under career or career-type appoint-
ERB to have the knowledge and capac- ment, assuming the employing agency
ity to advise the candidate, consistent approves. An SESCDP competition
with goals of the SESCDP. The mentor does not satisfy the requirements of
and the candidate are jointly respon- part 335 of this chapter and therefore
sible for a productive mentoring rela- does not provide an independent basis
tionship; however, the agency must es- to appoint or promote a career or ca-
tablish methods to assess these rela- reer-type appointee.
tionships and, if necessary, facilitate (3) A career or career-type appointee
them or make appropriate changes in may participate in an SESCDP con-
the interest of the candidate. ducted by an agency other than his or
(d) An SESCDP is a training oppor- her employing agency under such
tunity for which agencies must recruit terms as are mutually agreeable and
consistent with merit system prin- outlined in a Memorandum of Under-
ciples and paragraph (d)(1) of this sec- standing (MOU) signed by both agen-
tion. An agency must provide proce- cies involved. The MOU should be sub-
dures under which selections are made mitted to OPM after the candidate is
from among either all qualified persons selected and before the program begins.
or all qualified persons in the civil Terms of the MOU must be consistent
service. If selected, the individual par- with applicable provisions of 5 U.S.C.
ticipates in the agencys SESCDP. chapter 41, and a copy must be pro-
(1) An individual who does not cur- vided to OPM. Either agency may de-
rently hold a career or career-type cline or discontinue a candidates par-
civil service appointment may only ticipation if such terms cannot be ne-
participate in an SESCDP by means of gotiated or are not fulfilled.
a Schedule B appointment authorized (4) Any candidates participation in
by 5 CFR 213.3202(j) to a full-time posi- an SESCDP is at the discretion of the
tion created for developmental pur- employing agency and subject to provi-
poses connected with the SESCDP. Ex- sions established under 5 CFR 412.302(a)
ercising its authority under for removing a participant who does

302.101(c)(6) of this chapter, OPM here- not make adequate progress in the pro-
by exempts these full-time positions gram.
331
412.401 5 CFR Ch. I (1116 Edition)
(5) For purposes of this paragraph (d), 430.102 Performance management.

a career-type appointment means a
career or career-conditional appoint- Subpart BPerformance Appraisal for
ment or an appointment of equivalent General Schedule, Prevailing Rate,
tenure. An appointment of equivalent and Certain Other Employees
tenure is considered to be an appoint- 430.201 General.
ment in the excepted service that is 430.202 Coverage.
placed in Group I or Group II under 430.203 Definitions.
section 351.502(b). 430.204 Agency performance appraisal sys-
tem(s).
430.205 Agency performance appraisal pro-
Subpart DExecutive gram(s).
Development 430.206 Planning performance.
430.207 Monitoring performance.
412.401 Continuing executive devel- 430.208 Rating performance.
opment. 430.209 Agency responsibilities.
(a) Each agency must establish a pro- 430.210 OPM responsibilities.
gram or programs for the continuing
Subpart CManaging Senior Executive
development of its senior executives in
Performance
accordance with 5 U.S.C 3396(a). Such
agency programs must include prepara- 430.301 General.
tion, implementation, and regular up- 430.302 Coverage.
dating of an Executive Development 430.303 Definitions.
Plan (EDP) for each senior executive. 430.304 SES performance management sys-
The EDPs will: tems.
430.305 System standards for SES perform-
(1) Function as a detailed guide of de- ance management systems.
velopmental experiences to help SES 430.306 Planning and communicating per-
members, through participation in formance.
short-term and longer-term experi- 430.307 Monitoring performance.
ences, meet organizational needs for 430.308 Appraising performance.
leadership, managerial improvement, 430.309 Rating performance.
and organizational results; 430.310 Details and job changes.
(2) Address enhancement of existing 430.311 Performance Review Boards (PRBs).
430.312 Using performance results.
executive competencies and such other
430.313 Training and evaluation.
competencies as will strengthen the ex- 430.314 OPM review of agency systems.
ecutives performance;
(3) Outline developmental opportuni- Subpart DPerformance Appraisal
ties and assignments to allow the indi- Certification for Pay Purposes
vidual to develop a broader perspective
in the agency as well as Government- 430.401 Purpose.
wide; and 430.402 Definitions.
430.403 System certification.
(4) Be reviewed annually and revised 430.404 Certification criteria.
as appropriate by an ERB or similar 430.405 Procedures for certifying agency ap-
body designated by the agency to over- praisal systems.
see executive development, using input
AUTHORITY: 5 U.S.C. chapter 43 and 5307(d).
from the performance evaluation cycle.
(b) Consistent with 5 U.S.C. 3396(d)
and other applicable statutes, EDPs Subpart APerformance
may provide for executive sabbaticals Management
and other long-term assignments out-
side the Federal sector. SOURCE: 60 FR 43943, Aug. 23, 1995, unless
otherwise noted.
PART 430PERFORMANCE 430.101 Authority.
MANAGEMENT
Chapter 43 of title 5, United States
Subpart APerformance Management Code, provides for the performance ap-
praisal of Federal employees. This sub-

Sec. part supplements and implements this
430.101 Authority. portion of the law.
332
430.102 Performance management. tions in this subpart shall be applied in

(a) Performance management is the such a way as to affect any administra-
systematic process by which an agency tive proceeding related to any action
involves its employees, as individuals taken under regulations in this chapter
and members of a group, in improving pending on September 22, 1995.
organizational effectiveness in the ac- (c) Equivalent ratings of record. (1) If
complishment of agency mission and an agency has administratively adopt-
goals. ed and applied the procedures of this
(b) Performance management inte- subpart to evaluate the performance of
grates the processes an agency uses its employees, the ratings of record re-
to sulting from that evaluation are con-
(1) Communicate and clarify organi- sidered ratings of record for reduction
zational goals to employees; in force purposes.
(2) Identify individual and, where ap- (2) Other performance evaluations
plicable, team accountability for ac- given while an employee is not covered
complishing organizational goals; by the provisions of this subpart are
(3) Identify and address develop- considered ratings of record for reduc-
mental needs for individuals and, tion in force purposes when the per-
where applicable, teams; formance evaluation
(4) Assess and improve individual, (i) Was issued as an officially des-
team, and organizational performance; ignated evaluation under the employ-
(5) Use appropriate measures of per- ing agencys performance evaluation
formance as the basis for recognizing system,
and rewarding accomplishments; and (ii) Was derived from the appraisal of
(6) Use the results of performance ap- performance against expectations that
praisal as a basis for appropriate per- are established and communicated in
sonnel actions. advance and are work related, and
(iii) Identified whether the employee
Subpart BPerformance Ap- performed acceptably.
praisal for General Schedule, (3) When the performance evaluation
Prevailing Rate, and Certain does not include a summary level des-
Other Employees ignator and pattern comparable to
those established at 430.208(d), the
agency may identify a level and pat-
SOURCE: 60 FR 43943, Aug. 23, 1995, unless tern based on information related to
otherwise noted.
the appraisal process.
430.201 General. [60 FR 43943, Aug. 23, 1995; 60 FR 47646, Sept.
(a) Statutory authority. Chapter 43 of 13, 1995, as amended at 62 FR 62502, Nov. 24,
title 5, United States Code, provides for 1997]
the establishment of agency perform-
430.202 Coverage.
ance appraisal systems and requires
the Office of Personnel Management (a) Employees and agencies covered by
(OPM) to prescribe regulations gov- statute. (1) Section 4301(1) of title 5,
erning such systems. The regulations United States Code, defines agencies
in this subpart in combination with covered by this subpart.
statute set forth the requirements for (2) Section 4301(2) of title 5, United
agency performance appraisal sys- States Code, defines employees covered
tem(s) and program(s) for employees by statute by this subpart. Besides
covered by subchapter I of chapter 43. General Schedule (GS/GM) and pre-
(b) Savings provision. The perform- vailing rate employees, coverage in-
ance appraisal system portion of an cludes, but is not limited to, senior-
agencys Performance Management level and scientific and professional
Plan approved by OPM as of September employees paid under 5 U.S.C. 5376.
22, 1995 shall constitute an approved (b) Statutory exclusions. This subpart
performance appraisal system under does not apply to agencies or employ-
the regulations in this subpart until ees excluded by 5 U.S.C. 4301(1) and (2),
such time changes to the system are the United States Postal Service, or
approved. No provision of the regula- the Postal Rate Commission.
333
430.203 5 CFR Ch. I (1116 Edition)
(c) Administrative exclusions. OPM performance is unacceptable. Such ele-

may exclude any position or group of ments shall be used to measure per-
positions in the excepted service under formance only at the individual level.
the authority of 5 U.S.C. 4301(2)(G). The Non-critical element means a dimen-
regulations in this subpart exclude ex- sion or aspect of individual, team, or
cepted service positions for which em- organizational performance, exclusive
ployment is not reasonably expected to of a critical element, that is used in as-
exceed the minimum period established signing a summary level. Such ele-
under 430.207(a) in a consecutive 12- ments may include, but are not limited
month period. to, objectives, goals, program plans,
(d) Agency requests for exclusions. work plans, and other means of ex-
Heads of agencies or their designees pressing expected performance.
may request the Director of OPM to ex- Performance means accomplishment
clude positions in the excepted service. of work assignments or responsibil-
The request must be in writing, ex- ities.
plaining why the exclusion would be in Performance appraisal system: See Ap-
the interest of good administration. praisal system.
Performance plan means all of the
430.203 Definitions. written, or otherwise recorded, per-
In this subpart, terms are defined as formance elements that set forth ex-
follows: pected performance. A plan must in-
Additional performance element means clude all critical and non-critical ele-
a dimension or aspect of individual, ments and their performance stand-
team, or organizational performance ards.
that is not a critical or non-critical Performance rating means the written,
element. Such elements are not used in or otherwise recorded, appraisal of per-
assigning a summary level but, like formance compared to the performance
critical and non-critical elements, are standard(s) for each critical and non-
useful for purposes such as commu- critical element on which there has
nicating performance expectations and been an opportunity to perform for the
serving as the basis for granting minimum period. A performance rating
awards. Such elements may include, may include the assignment of a sum-
but are not limited to, objectives, mary level within a pattern (as speci-
goals, program plans, work plans, and fied in 430.208(d)).
other means of expressing expected Performance standard means the man-
performance. agement-approved expression of the
Appraisal means the process under performance threshold(s), require-
which performance is reviewed and ment(s), or expectation(s) that must be
evaluated. met to be appraised at a particular
Appraisal period means the estab- level of performance. A performance
lished period of time for which per- standard may include, but is not lim-
formance will be reviewed and a rating ited to, quality, quantity, timeliness,
of record will be prepared. and manner of performance.
Appraisal program means the specific Progress review means communicating
procedures and requirements estab- with the employee about performance
lished under the policies and param- compared to the performance standards
eters of an agency appraisal system. of critical and non-critical elements.
Appraisal system means a framework Rating of record means the perform-
of policies and parameters established ance rating prepared at the end of an
by an agency as defined at 5 U.S.C. appraisal period for performance of
4301(1) for the administration of per- agency-assigned duties over the entire
formance appraisal programs under period and the assignment of a sum-
subchapter I of chapter 43 of title 5, mary level within a pattern (as speci-
United States Code, and this subpart. fied in 430.208(d)), or (2) in accordance
Critical element means a work assign- with 531.404(a)(1) of this chapter.
ment or responsibility of such impor- These constitute official ratings of
record referenced in this chapter.
tance that unacceptable performance

on the element would result in a deter- [60 FR 43943, Aug. 23, 1995, as amended at 62
mination that an employees overall FR 62503, Nov. 24, 1997]
334
430.204 Agency performance ap- ments established by the appraisal sys-

praisal system(s). tem.
(a) Each agency as defined at section (c) Agencies are encouraged to in-
4301(1) of title 5, United States Code, volve employees in developing and im-
shall develop one or more performance plementing their system(s). When
appraisal systems for employees cov- agencies involve employees, the meth-
ered by this subpart. od of involvement shall be in accord-
(b) An agency appraisal system shall ance with the law.
establish agencywide policies and pa- [60 FR 43943, Aug. 23, 1995; 60 FR 47646, Sept.
rameters for the application and oper- 13, 1995]
ation of performance appraisal within
the agency for the employees covered 430.205 Agency performance ap-
by the system. At a minimum, an agen- praisal program(s).
cy system shall (a) Each agency shall establish at
(1) Provide for least one appraisal program of specific
(i) Establishing employee perform- procedures and requirements to be im-
ance plans, including, but not limited plemented in accordance with the ap-
to, critical elements and performance plicable agency appraisal system. At a
standards; minimum, each appraisal program
(ii) Communicating performance shall specify the employees covered by
plans to employees at the beginning of the program and include the proce-
an appraisal period; dures and requirements for planning
(iii) Evaluating each employee dur- performance (as specified in 430.206),
ing the appraisal period on the employ- monitoring performance (as specified
ees elements and standards; in 430.207), and rating performance (as
(iv) Recognizing and rewarding em- specified in 430.208).
ployees whose performance so war- (b) An agency program shall estab-
rants; lish criteria and procedures to address
(v) Assisting employees in improving
employee performance for employees
unacceptable performance; and
who are on detail, who are transferred,
(vi) Reassigning, reducing in grade,
and for other special circumstances as
or removing employees who continue
established by the agency.
to have unacceptable performance, but
(c) An agency may permit the devel-
only after an opportunity to dem-
opment of separate appraisal programs
onstrate acceptable performance.
under an appraisal system.
(2) Identify employees covered by the
system; (d) Agencies are encouraged to in-
(3) Specify the flexibilities an agency volve employees in developing and im-
program established under the system plementing their program(s). When
has for setting agencies involve employees, the meth-
(i) The length of the appraisal period od of involvement shall be in accord-
(as specified in 430.206(a)); ance with law.
(ii) The length of the minimum pe-
430.206 Planning performance.
riod (as specified in 430.207(a));
(iii) The number(s) of performance (a) Appraisal period. (1) An appraisal
levels at which critical and non-crit- program shall designate an official ap-
ical elements may be appraised (as praisal period for which a performance
specified in 430.206(b)(7) (i)(A) and plan shall be prepared, during which
(ii)(A)); and performance shall be monitored, and
(iv) The pattern of summary levels for which a rating of record shall be
that may be assigned in a rating of prepared.
record (as specified in 430.208(d)); (2) Each program shall specify a sin-
(4) Include, where applicable, criteria gle length of time as its appraisal pe-
and procedures for establishing sepa- riod. The appraisal period generally
rate appraisal programs under an ap- shall be 12 months so that employees
praisal system; and are provided a rating of record on an
(5) Require that an appraisal program annual basis. A programs appraisal pe-
shall conform to statute, the regula- riod may be longer when work assign-
tions of this chapter, and the requirements and responsibilities so warrant
335
430.207 5 CFR Ch. I (1116 Edition)
or performance management objectives a determination that performance is at

can be achieved more effectively. that level.
(b) Performance plan. (1) Agencies [60 FR 43943, Aug. 23, 1995, as amended at 62
shall encourage employee participation FR 62503, Nov. 24, 1997]
in establishing performance plans.
(2) Performance plans shall be pro- 430.207 Monitoring performance.
vided to employees at the beginning of (a) Minimum period. An appraisal pro-
each appraisal period (normally within gram shall establish a minimum period
30 days). of performance that must be completed
(3) An appraisal program shall re- before a performance rating may be
quire that each employee be covered by prepared.
an appropriate written, or otherwise (b) Ongoing appraisal. An appraisal
recorded, performance plan based on program shall include methods for ap-
work assignments and responsibilities. praising each critical and non-critical
(4) Each performance plan shall in- element during the appraisal period.
clude all elements which are used in Performance on each critical and non-
deriving and assigning a summary critical element shall be appraised
level, including at least one critical against its performance standard(s).
element and any non-critical ele- Ongoing appraisal methods shall in-
ment(s). clude, but not be limited to, con-
(5) Each performance plan may in- ducting one or more progress reviews
clude one or more additional perform- during each appraisal period.
ance elements, which (c) Marginal performance. Appraisal
(i) Are not used in deriving and as- programs should provide assistance
signing a summary level, and whenever performance is determined to
(ii) Are used to support performance be below Fully Successful or equiva-
management processes as described at lent but above Unacceptable.
430.102(b). (d) Unacceptable performance. An ap-
(6) A performance plan established praisal program shall provide for
under an appraisal program that uses (1) Assisting employees in improving
only two summary levels (pattern A as unacceptable performance at any time
specified in 430.208(d)(1)) shall not in- during the appraisal period that per-
clude non-critical elements. formance is determined to be unaccept-
(7) An appraisal program shall estab- able in one or more critical elements;
lish how many and which performance and
levels may be used to appraise critical (2) Taking action based on unaccept-
and non-critical elements. able performance.
(8) Elements and standards shall be
established as follows 430.208 Rating performance.
(i) For a critical element (a) As soon as practicable after the
(A) At least two levels for appraisal end of the appraisal period, a written,
shall be used with one level being or otherwise recorded, rating of record
Fully Successful or its equivalent shall be given to each employee.
and another level being Unaccept- (1) A rating of record shall be based
able, and only on the evaluation of actual job
(B) A performance standard shall be performance for the designated ap-
established at the Fully Successful praisal period.
level and may be established at other (2) An agency shall not issue a rating
levels. of record that assumes a level of per-
(ii) For non-critical elements, when formance by an employee without an
established, actual evaluation of that employees
(A) At least two levels for appraisal performance.
shall be used, and (3) Except as provided in 430.208(i), a
(B) A performance standard(s) shall rating of record is final when it is
be established at whatever level(s) is issued to an employee with all appro-
appropriate. priate reviews and signatures.
(iii) The absence of an established (b) Rating of record procedures for

performance standard at a level speci- each appraisal program shall include a
fied in the program shall not preclude method for deriving and assigning a
336
summary level as specified in para- for applying other related regulations,

graph (d) of this section based on ap- including, but not limited to, assigning
praisal of performance on critical ele- additional retention service credit
ments and, as applicable, non-critical under 351.504 of this chapter.
elements. (5) Under the provisions of 351.504(e)
(1) A Level 1 summary (Unaccept- of this chapter, the number of years of
able) shall be assigned if and only if additional retention service credit es-
performance on one or more critical tablished for a summary level of a rat-
elements is appraised as Unaccept- ing of record shall be applied in a uni-
able. form and consistent manner within a
(2) Consideration of non-critical ele- competitive area in any given reduc-
ments shall not result in assigning a tion in force, but the number of years
Level 1 summary ( Unacceptable). may vary:
(c) The method for deriving and as-
(i) In different reductions in force;
signing a summary level may not limit
or require the use of particular sum- (ii) In different competitive areas;
mary levels (i.e., establish a forced dis- and
tribution of summary levels). However, (iii) In different summary level pat-
methods used to make distinctions terns within the same competitive
among employees or groups of employ- area.
ees such as comparing, categorizing, (e) A rating of record of Unaccept-
and ranking employees or groups on able (Level 1) shall be reviewed and
the basis of their performance may be approved by a higher level manage-
used for purposes other than assigning ment official.
a summary level including, but not (f) The rating of record or perform-
limited to, award determinations and ance rating for a disabled veteran shall
promotion decisions. not be lowered because the veteran has
(d) Summary levels. (1) An appraisal been absent from work to seek medical
program shall use one of the following treatment as provided in Executive
patterns of summary levels: Order 5396.
Summary level
(g) When a rating of record cannot be
Pattern prepared at the time specified, the ap-
1 2 3 4 5 praisal period shall be extended. Once
A ................ X ............ X the conditions necessary to complete a
B ................ X ............ X ............ X rating of record have been met, a rat-
C ................ X ............ X X ing of record shall be prepared as soon
D ................ X X X
E ................ X ............ X X X as practicable.
F ................ X X X ............ X (h) Each rating of record shall cover
G ................ X X X X a specified appraisal period. Agencies
H ................ X X X X X
shall not carry over a rating of record
(2) Within any of the patterns shown prepared for a previous appraisal period
in paragraph (d)(1) of this section, sum- as the rating of record for a subsequent
mary levels shall comply with the fol- appraisal period(s) without an actual
lowing requirements: evaluation of the employees perform-
(i) Level 1 through Level 5 are or- ance during the subsequent appraisal
dered categories, with Level 1 as the period.
lowest and Level 5 as the highest; (i) When either a regular appraisal
(ii) Level 1 is Unacceptable; period or an extended appraisal period
(iii) Level 3 is Fully Successful or ends and any agency-established dead-
equivalent; and line for providing ratings of record
(iv) Level 5 is Outstanding or passes or a subsequent rating of record
equivalent. is issued, an agency shall not produce
(3) The term Outstanding shall be or change retroactively a rating of
used only to describe a Level 5 sum- record that covers that earlier ap-
mary. praisal period except that a rating of
(4) The designation of a summary record may be changed
level and its pattern shall be used to (1) Within 60 days of issuance based
provide consistency in describing rat- upon an informal request by the em-
ings of record and as a reference point ployee;
337
430.209 5 CFR Ch. I (1116 Edition)
(2) As a result of a grievance, com- (f) Maintain and submit such records
plaint, or other formal proceeding per- as OPM may require; and
mitted by law or regulation that re- (g) Take any action required by OPM
sults in a final determination by appro- to ensure conformance with applicable
priate authority that the rating of law, regulation, and OPM policy.
record must be changed or as part of a
bona fide settlement of a formal pro- 430.210 OPM responsibilities.
ceeding; or (a) OPM shall review and approve an
(3) Where the agency determines that agencys performance appraisal sys-
a rating of record was incorrectly re- tem(s).
corded or calculated. (b) OPM may evaluate the operation
(j) A performance rating may be pre- and application of an agencys perform-
pared at such other times as an ap- ance appraisal system(s) and pro-
praisal program may specify for special gram(s).
circumstances including, but not lim- (c) If OPM determines that an ap-
ited to, transfers and performance on praisal system or program does not
details. meet the requirements of applicable
[60 FR 43943, Aug. 23, 1995, as amended at 62 law, regulation, or OPM policy, it shall
FR 62503, Nov. 24, 1997; 63 FR 53276, Oct. 5, direct the agency to implement an ap-
1998] propriate system or program or to take
other corrective action.
430.209 Agency responsibilities.
An agency shall Subpart CManaging Senior
(a) Submit to OPM for approval a de-
scription of its appraisal system(s) as
Executive Performance
specified in 430.204(b) of this subpart,
and any subsequent changes that mod- SOURCE: 80 FR 57694, Sept. 25, 2015, unless
ify any element of the agencys sys- otherwise noted.
tem(s) that is subject to a regulatory
430.301 General.
requirement in this part;
(b) Transfer the employees most re- (a) Statutory authority. Chapter 43 of
cent ratings of record, and any subse- title 5, United States Code, provides for
quent performance ratings, when an the establishment of Senior Executive
employee transfers to another agency Service (SES) performance appraisal
or is assigned to another organization systems and appraisal of senior execu-
within the agency in compliance with tive performance. This subpart pre-
part 293 of this chapter and instruc- scribes regulations for managing SES
tions in the OPM Operating Manual, performance to implement the statu-
THE GUIDE TO PERSONNEL REC- tory provisions at 5 U.S.C. 43114315.
ORDKEEPING, for sale by the U.S. (b) Purpose. In order to improve the
Government Printing Office, Super- overall performance of Government,
intendent of Documents; agencies must establish performance
(c) Communicate with supervisors management systems that hold senior
and employees (e.g., through formal executives accountable (within their
training) about relevant parts of its assigned areas of responsibility and
performance appraisal system(s) and control) for their individual perform-
program(s); ance and for organizational perform-
(d) Evaluate the performance ap- ance by
praisal system(s) and performance ap- (1) Encouraging excellence in senior
praisal program(s) in operation in the executive performance;
agency; (2) Aligning executive performance
(e) Report ratings of record data to plans with the results-oriented goals
the Central Personnel Data File in required by the Government Perform-
compliance with instructions in the ance and Results Act Modernization
OPM Operating Manual, FEDERAL Act of 2010 (GPRAMA) or other stra-
WORKFORCE REPORTING SYSTEMS, tegic planning initiatives;
for sale by the U.S. Government Print- (3) Setting and communicating indi-
ing Office, Superintendent of Docu- vidual and organizational goals and ex-
ments; pectations that clearly fall within the
338
executives area of responsibility and cial with authority to make appoint-

control; ments in the Senior Executive Service
(4) Reporting on the success of meet- (SES).
ing organizational goals (including any Appraisal period means the estab-
factors that may have impacted suc- lished period of time for which a senior
cess); executives performance will be ap-
(5) Systematically appraising senior praised and rated.
executive performance using measures Critical element means a key compo-
that balance organizational results nent of an executives work that con-
with customer and employee perspec- tributes to organizational goals and re-
tives, and other perspectives as appro- sults and is so important that unsatis-
priate; and factory performance of the element
(6) Using performance appraisals as a would make the executives overall job
basis for pay, awards, development, re- performance unsatisfactory.
tention, removal, and other personnel Initial summary rating means an over-
decisions. all rating level the supervisor derives,
(c) Savings provision. Agencies with- from appraising the senior executives
out OPM approval to use the basic SES performance during the appraisal pe-
appraisal system issued by U.S. Office riod in relation to the critical elements
of Personnel Management (OPM) and and performance standards and re-
the Office of Management and Budget quirements, and forwards to the Per-
on January 4, 2012, must design, obtain formance Review Board.
OPM approval for, and implement sys- Oversight official means the agency
tems conforming to the requirements head or the individual specifically des-
of this subpart no later than one year ignated by the agency head who pro-
after October 26, 2015. No provision of vides oversight of the performance
this subpart will affect any administra- management system and issues per-
tive proceedings related to any action formance appraisal guidelines.
initiated under a provision of this Performance means the accomplish-
chapter before October 26, 2015. ment of the work described in the sen-
ior executives performance plan.
430.302 Coverage. Performance appraisal means the re-
This subpart applies to view and evaluation of a senior execu-
(a) All senior executives covered by tives performance against critical ele-
subchapter II of chapter 31 of title 5, ments and performance standards and
United States Code; and requirements.
(b) Agencies as defined in 430.303. Performance management system means
the framework of policies and practices
430.303 Definitions. that an agency establishes under sub-
In this subpart chapter II of chapter 43 of title 5,
Agency means an agency as that term United States Code, subpart A, and this
is defined in 5 U.S.C. 3132(a)(1) and an subpart for planning, monitoring, de-
Office of Inspector General, which is a veloping, evaluating, and rewarding
separate agency for all provisions of both individual and organizational per-
the Senior Executive Service under the formance and for using resulting per-
Inspector General Act of 1978 (5 U.S.C. formance information in making per-
App 6(d)). sonnel decisions.
Annual summary rating means the Performance requirement means a de-
overall rating level that an appointing scription of what a senior executive
authority assigns at the end of the ap- must accomplish, or the competencies
praisal period after considering (1) the demonstrated, for a critical element. A
initial summary rating, (2) any input performance requirement establishes
from the executive or a higher level re- the criteria to be met to be rated at a
view, and (3) the applicable Perform- specific level of performance and gen-
ance Review Boards recommendations. erally includes quality, quantity, time-
This is the official final rating for the liness, cost savings, manner of per-
appraisal period. formance, or other factors.

Appointing authority means the de- Performance standard means a nor-
partment or agency head, or other offi- mative description of a single level of
339
430.304 5 CFR Ch. I (1116 Edition)
performance within five such described (4) Establishing a minimum appraisal

levels of performance ranging from un- period of at least 90 days;
satisfactory performance to out- (5) Ending the appraisal period at any
standing performance. Performance time after the minimum appraisal pe-
standards provide the benchmarks for riod is completed, but only if the agen-
developing performance requirements cy determines there is an adequate
against which actual performance will basis on which to appraise and rate the
be assessed. senior executives performance and the
Progress review means a review of the shortened appraisal period promotes ef-
senior executives progress in meeting fectiveness; and
the performance requirements. A (6) Establishing criteria and proce-
progress review is not a performance dures to address performance of senior
rating. executives who are on detail, tempo-
Senior executive performance plan rarily reassigned, or transferred as de-
means the written critical elements scribed at 430.312(c)(1), and for other
and performance requirements against special circumstances established by
which performance will be evaluated the agency.
during the appraisal period by applying
the established performance standards. 430.305 System standards for SES
The plan includes all critical elements, performance management systems.
performance standards, and perform- (a) Each agency performance man-
ance requirements, including any spe- agement system must incorporate the
cific goals, targets, or other measures
following system standards:
established for the senior executive.
(1) Use critical elements based on
Strategic planning initiatives means
OPM-validated executive competencies
agency strategic plans as required by
to evaluate executive leadership and
the GPRA Modernization Act of 2010,
results, including the quality of the ex-
annual performance plans, organiza-
ecutives performance;
tional work plans, and other related
initiatives. (2) Align performance requirements
with agency mission and strategic
System standards means the OPM-es-
planning initiatives;
tablished requirements for perform-
ance management systems. (3) Define performance standards for
each of the summary rating perform-
430.304 SES performance manage- ance levels, which also may be used for
ment systems. the individual elements or performance
requirements being appraised;
(a) To encourage excellence in senior
executive performance, each agency (4) Appraise each senior executives
must develop and administer one or performance at least annually against
more performance management sys- performance requirements based on es-
tems for its senior executives in ac- tablished performance standards and
cordance with the system standards es- other measures;
tablished in 430.305. (5) Derive an annual summary rating
(b) Performance management sys- through a mathematical method that
tems must provide for ensures executives performance aligns
(1) Identifying executives covered by with level descriptors contained in per-
the system; formance standards that clearly dif-
ferentiate levels above fully successful,
(2) Monitoring progress in accom-
while prohibiting a forced distribution
plishing critical elements and perform-
of rating levels for senior executives;
ance requirements and conducting
progress reviews at least once during (6) Establish five summary perform-
the appraisal period, including inform- ance levels as follows:
ing executives on how well they are (i) An outstanding level;
performing; (ii) An exceeds fully successful level;
(3) Establishing an official perform- (iii) A fully successful level;
(iv) A minimally satisfactory level;
ance appraisal period for which an an-

nual summary rating must be pre- and
pared; (v) An unsatisfactory level;
340
(7) Include equivalency statements in (3) Performance requirements. At a

the system description for agency-spe- minimum, performance requirements
cific terms for the five summary per- must describe expected accomplish-
formance levels aligning them with the ments or demonstrated competencies
five performance levels required in for fully successful performance by the
430.305(a)(6); and executive. An agency may establish
(8) Use performance appraisals as a performance requirements associated
basis to adjust pay, reward, retain, and with other levels of performance as
develop senior executives or make well. These performance requirements
other personnel decisions, including re- must align with agency mission and
movals as specified in 430.312. strategic planning initiatives. Per-
(b) An agency may develop its own formance requirements must contain
performance management system for measures of the quality, quantity,
senior executives in accordance with timeliness, cost savings, or manner of
the requirements of this section. performance, as appropriate, expected
(c) OPM may establish, and refine as for the applicable level of performance.
needed, a basic performance manage- (d) Agencies may require a review of
ment system incorporating all require- senior executive performance plans at
ments of this section, which agencies the beginning of the appraisal period to
may adopt, with limited adaptation, ensure consistency of agency-specific
for performance management of its performance requirements. Such re-
senior executives. views may be performed by the Per-
formance Review Board (PRB) or an-
430.306 Planning and communicating
performance. other body of the agencys choosing.
(a) Each senior executive must have 430.307 Monitoring performance.
a performance plan that describes the
Supervisors must monitor each sen-
individual and organizational expecta-
ior executives performance throughout
tions for the appraisal period that
the appraisal period and hold at least
clearly fall within the senior execu-
one progress review. At a minimum,
tives area of responsibility and con-
supervisors must inform senior execu-
trol.
tives during the progress review about
(b) Supervisors must develop per-
how well they are performing with re-
formance plans in consultation with
gard to their performance plan. Super-
senior executives and communicate the
visors must provide advice and assist-
plans to them in writing, including
ance to senior executives on how to im-
through the use of automated systems,
prove their performance. Supervisors
on or before the beginning of the ap-
and senior executives may also discuss
praisal period.
available development opportunities
(c) A senior executive performance
for the senior executive.
plan must include
(1) Critical elements. Critical elements 430.308 Appraising performance.
must reflect individual performance re-
sults or competencies as well as organi- (a) Agencies must establish appro-
zational performance priorities within priate timelines for communicating
each executives respective area of re- performance plans, conducting apprais-
sponsibility and control, and be based als, and assigning and communicating
on OPM-validated executive com- annual summary ratings.
petencies. (b) At least annually, agencies must
(2) Performance standards. Perform- appraise each senior executives per-
ance plans must include the perform- formance in writing, including through
ance standards describing each level of the use of automated systems, and as-
performance at which a senior execu- sign an annual summary rating at the
tives performance can be appraised. end of the appraisal period.
Performance standards describe the (c) Agencies must appraise a senior
general expectations that must be met executives performance on the critical
to be rated at each level of perform- elements and performance require-

ance and provide the benchmarks for ments in the senior executives per-
developing performance requirements. formance plan.
341
430.309 5 CFR Ch. I (1116 Edition)
(d) Agencies must base appraisals of (d) Senior executive performance ap-
senior executive performance on both praisals and ratings are not appealable.
individual and organizational perform- (e) Procedures for rating senior ex-
ance as it applies to the senior execu- ecutives must provide for the fol-
tives area of responsibility and con- lowing:
trol, taking into account factors such (1) Initial summary rating. The super-
as visor must develop an initial summary
(1) Results achieved in accordance rating of the senior executives per-
with agency mission and strategic formance, in writing, including
planning initiatives; through the use of automated systems,
(2) Overall quality of performance and share that rating with the senior
rendered by the executive, executive. The senior executive may
(3) Performance appraisal guidelines respond in writing.
that must be based upon assessments (2) Higher-level review (HLR). A senior
of the agencys performance and are executive may ask for a higher-level
provided by the oversight official to official to review the initial summary
senior executives, rating and reviewing rating before the rating is given to the
officials, PRB members, and appoint- PRB. The agency must provide each
ing authorities at the conclusion of the senior executive an opportunity for re-
appraisal period and before completion view of the initial summary rating by
of the initial summary ratings; an employee, or (with the consent of
(4) Customer perspectives; the senior executive) a commissioned
(5) Employee perspectives; officer in the uniformed services on ac-
(6) The effectiveness, productivity, tive duty in the agency, in a higher
and performance results of the employ- level in the agency.
ees for whom the senior executive is re- (i) A single review by an official at a
sponsible; higher level who did not participate in
(7) Leadership effectiveness in pro- determining the executives initial
moting diversity, inclusion and engage- summary rating will satisfy this re-
ment as set forth, in part, under sec- quirement. An official providing HLR
tion 7201 of title 5, United States Code; may not change the initial summary
and rating but may recommend a different
(8) Compliance with the merit system rating to the PRB. HLR may be pro-
principles set forth under section 2301 vided by an official who is at a higher
of title 5, United States Code. level in the agency than the appointing
authority who will approve the final
430.309 Rating performance. rating under paragraph (e)(4) of this
(a) When rating senior executive per- section.
formance, each agency must (ii) When an agency cannot provide
(1) Comply with the requirements of review by a higher-level official for an
this section, and executive who receives an initial sum-
(2) Establish a PRB as described at mary rating from the agency head be-
430.311. cause no such official exists in the
(b) Each performance management agency, the agency must offer an alter-
system must provide that an appraisal native review as it determines appro-
and rating for a career appointees per- priate, except that the review may not
formance may not be made within 120 be provided by a member of the PRB or
days after the beginning of a new an official who participated in deter-
Presidents term. mining the initial summary rating.
(c) When an agency cannot prepare (iii) If a senior executive declines re-
an annual summary rating at the end view by agency-designated higher-level
of the appraisal period because the sen- officials, the agency may offer an al-
ior executive has not completed the ternative review but it not obligated to
minimum appraisal period or for other do so. The agency must document the
reasons, the agency must extend the executives declination of the HLR op-
executives appraisal period. Once the portunity provided by the agency be-
appropriate conditions are met, the fore offering an alternative review.

agency will then prepare the annual (iv) Copies of findings and rec-
summary rating. ommendations of the HLR official or
342
the official performing an alternative tial summary rating at the end of the
review under paragraph (e)(2)(ii) appraisal period.
through (iii) of this section must be
given to the senior executive, the su- 430.311 Performance Review Boards
pervisor, and the PRB. (PRBs).
(3) PRB review. The PRB must receive Each agency must establish one or
and review the initial summary rating, more PRBs to make recommendations
the senior executives response to the to the appointing authority on the per-
initial rating if made, and findings and formance of its senior executives.
recommendations of any HLR or any (a) Membership. (1) Each PRB must
alternative review under paragraph have three or more members who are
(e)(2) of this section before making rec- appointed by the agency head, or by
ommendations to the appointing au- another official or group acting on be-
thority, as provided in 430.311. half of the agency head. Agency heads
(4) Annual summary rating. The ap- are encouraged to consider diversity
pointing authority must assign the an- and inclusion in establishing their
nual summary rating of the senior ex- PRBs.
ecutives performance after considering (2) PRB members must be appointed
the applicable PRBs recommenda- in a way that assures consistency, sta-
tions. This rating is the official final bility, and objectivity in SES perform-
rating for the appraisal period and ance appraisal.
must be communicated to the execu- (3) When appraising a career ap-
tive in writing, including through the pointees performance or recom-
use of automated systems, in accord- mending a career appointee for a per-
ance with the timelines developed formance-based pay adjustment or per-
under 430.308(a). formance award, more than one-half of
(5) Shortened appraisal periods. The the PRBs members must be SES ca-
procedures of this section apply when- reer appointees.
ever an agency terminates an appraisal (4) The agency must publish notice of
period under 430.304(b)(5). PRB appointments in the FEDERAL
REGISTER before service begins.
430.310 Details and job changes. (b) Functions. (1) Each PRB must con-
(a) When a senior executive is de- sider agency performance as commu-
tailed or temporarily reassigned for 120 nicated by the oversight official
days or longer, the gaining organiza- through the performance appraisal
tion must set performance goals and guidelines when reviewing and evalu-
requirements for the detail or tem- ating the initial summary rating, any
porary assignment. The gaining organi- senior executives response, and any
zation must appraise the senior execu- higher-level officials findings and rec-
tives performance in writing, includ- ommendations on the initial summary
ing through the use of automated sys- rating or the results of an alternative
tems, and this appraisal must be con- review. The PRB may conduct any fur-
sidered when deriving the initial sum- ther review needed to make its rec-
mary rating. ommendations. The PRB may not re-
(b) When a senior executive is reas- view an initial summary rating to
signed or transferred to another agency which the executive has not been given
after completing the minimum ap- the opportunity to respond in writing,
praisal period, the supervisor must ap- including through the use of auto-
praise the executives performance in mated systems.
writing, including through the use of (2) The PRB must make a written
automated systems, before the execu- recommendation, including through
tive leaves and provide this informa- the use of automated systems, to the
tion to the executive. appointing authority about each senior
(c) The most recent annual summary executives annual summary rating,
rating and any subsequent appraisals performance-based pay adjustment,
must be transferred to the gaining and performance award.
agency or organization. The gaining (3) PRB members may not take part
supervisor must consider the rating in any PRB deliberations involving
and appraisals when deriving the ini- their own appraisals, performance-
343
430.312 5 CFR Ch. I (1116 Edition)
based pay adjustments, and perform- 430.314 OPM review of agency sys-
ance awards. tems.
(a) Agencies must submit proposed
430.312 Using performance results.
SES performance management systems
(a) Agencies must use performance to OPM for approval. Agency systems
appraisals as a basis for adjusting pay, must address the system standards and
granting awards, retaining senior ex- requirements specified in this subpart.
ecutives, and making other personnel (b) OPM will review agency systems
decisions. Performance appraisals also for compliance with the requirements
will be a factor in assessing a senior ex- of law, OPM regulations, and OPM per-
ecutives continuing development formance management policy, includ-
needs. ing the system standards specified at
(b) Agencies are required to provide 430.305.
appropriate incentives and recognition (c) If OPM finds that an agency sys-
(including pay adjustments and per- tem does not meet the requirements
formance awards under part 534, sub- and intent of subchapter II of chapter
43 of title 5, United States Code, or of
part D) for excellence in performance.
this subpart, OPM will identify the re-
(c) A career executive may be re-
quirements that were not met and di-
moved from the SES for performance rect the agency to take corrective ac-
reasons, subject to the provisions of tion, and the agency must comply.
part 359, subpart E, as follows:
(1) An executive who receives an un-
satisfactory annual summary rating
Subpart DPerformance Ap-
must be reassigned or transferred with-
praisal Certification for Pay
in the SES, or removed from the SES; Purposes
(2) An executive who receives two un-
satisfactory annual summary ratings SOURCE: 69 FR 45550, 45551, July 29, 2004, un-
in any 5-year period must be removed
NOTE TO SUBPART D: Regulations identical
from the SES; and to this subpart appear at 5 CFR part 1330,
(3) An executive who receives less subpart D.
than a fully successful annual sum-
mary rating twice in any 3-year period 430.401 Purpose.
must be removed from the SES. (a) This subpart implements 5 U.S.C.
5307(d), as added by section 1322 of the
430.313 Training and evaluation. Chief Human Capital Officers Act of
(a) To assure effective implementa- 2002 (Title XIII of Public Law 107296,
tion of agency performance manage- the Homeland Security Act of 2002; No-
ment systems, agencies must provide vember 25, 2002), which provides a high-
appropriate information and training er aggregate limitation on pay for cer-
to agency leadership, supervisors, and tain members of the Senior Executive
senior executives on performance man- Service (SES) under 5 U.S.C. 5382 and
agement, including planning and ap- 5383 and employees in senior-level (SL)
praising performance. and scientific or professional (ST) posi-
tions paid under 5 U.S.C. 5376. In addi-
(b) Agencies must periodically evalu-
tion, this subpart is necessary to ad-
ate the effectiveness of their perform-
minister rates of basic pay for mem-
ance management system(s) and imple- bers of the SES under 5 U.S.C. 5382, as
ment improvements as needed. Evalua- amended by section 1125 of the Na-
tions must provide for both assessment tional Defense Authorization Act for
of effectiveness and compliance with Fiscal Year 2004. The regulations in
relevant laws, OPM regulations, and this subpart strengthen the application
OPM performance management policy. of pay-for-performance principles to
(c) Agencies must maintain all per- senior executives and senior profes-
formance-related records for no fewer sionals. Specifically, the statutory pro-
than 5 years from the date the annual visions authorize an agency to apply a
summary rating is issued, as required higher maximum rate of basic pay for
in 5 CFR 293.404(b)(1). senior executives (consistent with 5
344
CFR part 534, subpart D, when effec- the normally high performance ex-
tive) and apply a higher aggregate lim- pected of any senior employee, as evi-
itation on pay (consistent with 5 CFR denced by exceptional accomplish-
part 530, subpart B) to its senior em- ments or contributions to the agencys
ployees, but only after OPM, with OMB performance.
concurrence, has certified that the de- Performance evaluation means the
sign and application of the agencys ap- comparison of the actual performance
praisal systems for these employees of senior employees against their per-
make meaningful distinctions based on formance expectations and may take
relative performance. This subpart es- into account their contribution to
tablishes the certification criteria and agency performance, where appro-
procedures that OPM will apply in con- priate.
sidering agency requests for such cer- Performance expectations means crit-
tification. ical and other performance elements
(b) Senior executives generally may and performance requirements that
receive an annual rate of basic pay up constitute the senior executive per-
to the rate for level III of the Execu- formance plans (as defined in 430.303)
tive Schedule under 5 U.S.C. 5382 and 5 established for senior executives, the
CFR part 534, subpart D, when effec- performance elements and standards
tive. Senior employees generally may that constitute the performance plans
receive total compensation in a cal- (as defined in 430.203) established for
endar year up to the rate for level I of senior professionals, or other appro-
the Executive Schedule under 5 U.S.C. priate means authorized under per-
5307(a) and 5 CFR 530.203(a). Only em- formance appraisal systems not cov-
ployees covered by an appraisal system ered by 5 U.S.C. chapter 43 for commu-
that OPM, with OMB concurrence, cer- nicating what a senior employee is ex-
tifies under this subpart are eligible for pected to do and the manner in which
a maximum annual rate of basic pay he/she is expected to do it, and may in-
for senior executives up to the rate for clude contribution to agency perform-
level II of the Executive Schedule (con- ance, where appropriate.
sistent with 5 U.S.C. 5382 and 5 CFR Program performance measures means
part 534, subpart D, when effective) and results-oriented measures of perform-
a higher aggregate pay limitation ance, whether at the agency, compo-
equivalent to the total annual com- nent, or function level, which include,
pensation payable to the Vice Presi- for example, measures under the Gov-
dent (consistent with 5 U.S.C. 5307(d) ernment Performance and Results Act.
and 5 CFR 530.203(b)). PRB means Performance Review
Board, as described at 430.310.
430.402 Definitions. Relative performance means the per-
In this subpart formance of a senior employee with re-
Appraisal system means the policies, spect to the performance of other sen-
practices, and procedures an agency es- ior employees, including their con-
tablishes under 5 U.S.C. chapter 43 and tribution to agency performance,
5 CFR part 430, subparts B and C, or where appropriate, as determined by
other applicable legal authority, for the application of a certified appraisal
planning, monitoring, developing, eval- system.
uating, and rewarding employee per- Senior employee means a senior execu-
formance. This includes appraisal sys- tive or a senior professional.
tems and appraisal programs as defined Senior executive means a member of
at 430.203 and performance manage- the Senior Executive Service (SES)
ment systems as defined at 430.303. paid under 5 U.S.C. 5383.
GPRA means the Government Per- Senior professional means an employee
formance and Results Act of 1993. in a senior-level (SL) or scientific or
OMB means the Office of Manage- professional position (ST) paid under 5
ment and Budget. U.S.C. 5376.
OPM means the Office of Personnel
430.403 System certification.
Management.
Outstanding performance means per- (a) The performance appraisal sys-
formance that substantially exceeds tem(s) covering senior employees must
345
430.404 5 CFR Ch. I (1116 Edition)
be certified by OPM, with OMB concur- subpart B, and is separate from the
rence, as making meaningful distinc- system(s) established to cover its SES
tions based on relative performance be- members under 5 CFR part 430, subpart
fore an agency may apply a maximum C. For the purpose of certification
annual rate of basic pay for senior ex- under this subpart, such senior profes-
ecutives equal to the rate for level II of sional appraisal system(s) must meet
the Executive Schedule or apply an an- the certification criteria set forth in
nual aggregate limitation on payments 430.404. At its discretion, an agency
to senior employees equal to the salary may include system features in its sen-
of the Vice President under 5 U.S.C. ior professional appraisal system(s)
5307(d)). OPM, with OMB concurrence, that are the same as, or similar to, the
will certify an agencys appraisal sys- features of its SES appraisal system(s),
tem(s) only when a review of that sys- as appropriate, including procedures
tems design, application, and adminis- that correspond to the higher level re-
tration reveals that the agency meets view procedures under 430.308(b) and
the certification criteria established in PRB reviews of summary ratings under
430.404 and has followed the proce- 430.308(c).
dures for certifying agency appraisal (e) For agencies subject to 5 U.S.C.
systems in 430.405. chapter 43 and 5 CFR part 430, OPM ap-
(b) Except as provided in paragraph proval of the agency performance ap-
(c) of this section, agencies subject to 5 praisal system(s) is a prerequisite to
U.S.C. chapter 43 and 5 CFR part 430 certification. Agencies not subject to
seeking certification of their appraisal the appraisal provisions of 5 U.S.C.
systems must submit systems that chapter 43 and 5 CFR part 430 and
have been approved by OPM under which are seeking certification of their
430.312 or 430.210, as applicable. In appraisal system(s) under this subpart
some agencies, the performance ap- must submit appropriate documenta-
praisal system(s) covers employees in tion to demonstrate that each system
many organizations and/or compo- complies with the appropriate legal au-
nents, and their ability to meet the thority that governs the establish-
certification criteria in 430.404 may ment, application, and administration
vary significantly. In such cases, an of that system.
agency may establish and/or submit
separate performance appraisal sys- 430.404 Certification criteria.
tems for each of these distinct organi- (a) To be certified, an agencys appli-
zations and/or components to ensure cable appraisal system(s) for senior ex-
timely certification of those perform- ecutives or senior professionals must
ance appraisal system(s) that meet the make meaningful distinctions based on
criteria. New appraisal systems estab- relative performance and meet the
lished under 5 CFR part 430, subpart B other requirements of 5 U.S.C. chapter
or C, as applicable based on the em- 43, as applicable, in addition to the par-
ployees covered, must be approved by ticular criterion cited here (i.e., con-
OPM. sultation). Such system(s) must pro-
(c) When an agency establishes a new vide for the following:
appraisal system for the purpose of (1) Alignment, so that the perform-
seeking certification under this sub- ance expectations for individual senior
part, the agency may submit that sys- employees derive from, and clearly
tem for certification even if it has not link to, the agencys mission, GPRA
yet been approved by OPM under strategic goals, program and policy ob-
430.312 or 430.210, as applicable. OPM jectives, and/or annual performance
will certify, with OMB concurrence, plans and budget priorities;
only those systems that OPM deter- (2) Consultation, so that the perform-
mines meet the approval requirements ance expectations for senior employees
of 5 CFR part 430, subpart B or C, as ap- meet the requirements of 5 CFR part
plicable. 430, subparts B and C, as applicable,
(d) An agency must establish an ap- and/or other applicable legal authority;
praisal system(s), as defined in 430.402, are developed with the input and in-
for its senior professionals that meets volvement of the individual senior em-
the requirements of 5 CFR part 430, ployees who are covered thereby; and
346
are communicated to them at the be- (6) Oversight by the agency head or
ginning of the applicable appraisal pe- the individual specifically designated
riod, and/or at appropriate times thereunder paragraph (a)(5) of this section,
after; who certifies, for a particular senior
(3) Results, so that the performance employee appraisal system, that
expectations for individual senior em- (i) The senior employee appraisal
ployees apply to their respective areas process makes meaningful distinctions
of responsibility; reflect expected agen- based on relative performance;
cy and/or organizational outcomes and (ii) The results of the senior em-
outputs, performance targets or ployee appraisal process take into ac-
metrics, policy/program objectives, count, as appropriate, the agencys as-
and/or milestones; identify specific pro- sessment of its performance against
grammatic crosscutting, external, and program performance measures, as well
partnership-oriented goals or objec- as other relevant considerations; and
tives, as applicable; and are stated in (iii) Pay adjustments, cash awards,
terms of observable, measurable, and/or and levels of pay based on the results
demonstrable performance; of the appraisal process accurately re-
(4) Balance, so that in addition to ex- flect and recognize individual perform-
pected results, the performance expec- ance and/or contribution to the agen-
tations for individual senior employees cys performance;
include appropriate measures or indi- (7) Accountability, so that final agen-
cators of employee and/or customer/ cy head decisions and any PRB rec-
stakeholder feedback; quality, quan- ommendations regarding senior em-
tity, timeliness, and cost effectiveness, ployee ratings consistent with 5 CFR
as applicable; and those technical, part 430, subparts B and C, individually
leadership and/or managerial com- and overall, appropriately reflect the
petencies or behaviors that contribute employees performance expectations,
to and are necessary to distinguish relevant program performance meas-
outstanding performance; ures, and such other relevant factors as
(5) Appropriate assessments of the the PRB may find appropriate; in the
agencys performanceoverall and case of supervisory senior employees,
with respect to each of its particular ratings must reflect the degree to
missions, components, programs, pol- which performance standards, require-
icy areas, and support functionssuch ments, or expectations for individual
as reports of the agencys GPRA goals, subordinate employees clearly link to
annual performance plans and targets, organizational mission, GPRA stra-
program performance measures, and tegic goals, or other program or policy
other appropriate indicators, as well as objectives and take into account the
evaluation guidelines based, in part, degree of rigor in the appraisal of their
upon those assessments, that are com- subordinate employees;
municated by the agency head, or an (8) Performance differentiation, so
individual specifically designated by that the system(s) includes at least one
the agency head for such purpose, to summary level of performance above
senior employees, appropriate senior fully successful, including a summary
employee rating and reviewing offi- level that reflects outstanding per-
cials, and PRB members. These assess- formance, as defined in 430.402, and so
ments and guidelines are to be provided that its annual administration results
at the conclusion of the appraisal pe- in meaningful distinctions based on
riod but before individual senior em- relative performance that take into ac-
ployee performance ratings are rec- count the assessment of the agencys
ommended, so that they may serve as a performance against relevant program
basis for individual performance eval- performance measures, as described in
uations, as appropriate. The guidance paragraph (a)(6) of this section, em-
provided may not take the form of ployee performance expectations, and
quantitative limitations on the number such other relevant factors as may be
of ratings at any given rating level, appropriate. Relative performance does

and must conform to 5 CFR part 430, not require ranking senior employees
subpart B or C, as applicable; against each other; such ranking is
347
430.405 5 CFR Ch. I (1116 Edition)
prohibited for the purpose of deter- tiating among senior employees based
mining performance ratings. For equiv- on appraisals of their relative perform-
alent systems that do not use summary ance against performance expectations
ratings, the appraisal system must pro- in any given appraisal period reflecting
vide for clear differentiation of per- performance evaluation results that
formance at the outstanding level; and make meaningful distinctions based on
(9) Pay differentiation, so that those relative performance, and which in-
senior employees who have dem- clude
onstrated the highest levels of indi- (A) For the agencys senior execu-
vidual performance and/or contribution tives covered by 5 CFR part 430, sub-
to the agencys performance receive part C, at least four, but not more than
the highest annual summary ratings or five, summary rating levelsan out-
ratings of record, as applicable, as well standing level, a fully successful level,
as the largest corresponding pay ad- an optional level between outstanding
justments, cash awards, and levels of and fully successful, a minimally satis-
pay, particularly above the rate for factory level, and an unsatisfactory
level III of the Executive Schedule. level;
Agencies must provide for trans- (B) For the agencys senior profes-
parency in the processes for making sionals covered by 5 CFR part 430, sub-
pay decisions, while assuring confiden- part B, at least three, but not more
tiality. than five, summary levelsan out-
(b) Consistent with the requirements standing level, a fully successful level,
in section 3(a) of the Inspector General an optional level between outstanding
Act of 1978, an agencys Inspector Gen- and fully successful, an unacceptable
eral or an official he or she designates level, and an optional level between
must perform the functions listed in fully successful and unacceptable; and
paragraphs (a)(5) and (6) of this section (C) For agencies not subject to 5 CFR
for senior employees in the Office of part 430, subparts B and C, a summary
the Inspector General. rating level that reflects outstanding
performance or a methodology that
430.405 Procedures for certifying clearly differentiates outstanding per-
agency appraisal systems. formance, as defined in 430.402;
(a) General. To receive system certifi- (2) A clearly defined process for re-
cation, an agency must provide docu- viewing
mentation demonstrating that its ap- (i) The initial summary ratings and
praisal system(s), in design, applica- ratings of record, as applicable, of sen-
tion, and administration, meets the ior employees to ensure that annual
certification criteria in 430.404 as well summary ratings or ratings of record
as the procedural requirements set are not distributed arbitrarily or on a
forth in this section. rotational basis, and
(b) Certification requests. In order for (ii) In the case of senior employees
an agencys appraisal system to be cer- with supervisory responsibilities
tified, the head of the agency or des- (A) The performance standards, re-
ignee must submit a written request quirements, or expectations for the em-
for full or provisional certification of ployees they supervise to ensure that
its appraisal system(s) to OPM. Certifi- they clearly link to organizational
cation requests may cover an agency- mission, GPRA strategic goals, or
wide system or a system that applies other program and policy objectives, as
to one or more agency organizations or appropriate, and
components and must include (B) The performance standards, re-
(1) A full description of the appraisal quirements, or expectations and the
system(s) to be certified, including performance ratings of the employees
(i) Organizational and employee cov- they supervise to ensure that they re-
erage information; flect distinctions in individual and or-
(ii) Applicable administrative in- ganizational performance, as appro-
structions and implementing guidance; priate;
and (3) Documentation showing that the

(iii) The systems use of rating levels appraisal system(s) meets the applica-
that are capable of clearly differen- ble certification criteria, as follows:
348
(i) For provisional certification, the that the agency appraisal system is not
requirements in 430.404(a)(1)(4); and in compliance with certification cri-
(ii) For full certification, all of the teria.
requirements in 430.404. (d) Pay limitations. Absent full or pro-
(4) For full certification, data on sen- visional certification of its appraisal
ior executive annual summary ratings system(s), an agency must
and senior professional ratings of (1) Set a senior executives rate of
record, as applicable (or other docu- basic pay at a rate that does not exceed
mentation for agencies that do not use the rate for level III of the Executive
summary ratings), for the two ap- Schedule, consistent with 5 CFR part
praisal periods preceding the request, 534, subpart D, when effective; and
as well as corresponding pay adjust- (2) Limit aggregate compensation
ments, cash awards, and levels of pay paid to senior employees in a calendar
provided to those senior employees; year to the rate for level I of the Exec-
and utive Schedule, consistent with 5 CFR
(5) Any additional information that 530.203(b).
OPM and OMB may require to make a (e) Full certification. (1) OPM, with
determination regarding certification. OMB concurrence, may grant full cer-
(c) Certification actions. At the re- tification when a review of the agen-
quest of an agency, the Director of cys request and accompanying docu-
OPM, at his or her discretion and in ac- mentation demonstrates that the de-
cordance with the requirements of this sign, application, and administration
subpart and with OMB concurrence, of the agencys appraisal system(s)
may grant full or provisional certifi- meet the criteria in 430.404 and the
cation of the agencys appraisal sys- documentation requirements of this
tem(s). OPM, with OMB concurrence, section.
may (2) An agency with a fully-certified
(1) Grant full certification of an appraisal system(s) may set the rate of
agencys senior employee appraisal sys- basic pay under 5 CFR part 534, subpart
tem(s) for 2 calendar years when an D, when effective, for a senior execu-
agency has demonstrated that it has tive covered by a certified system at a
designed and fully implemented and rate that does not exceed the rate for
applied an appraisal system(s) for its level II of the Executive Schedule and
senior executives or senior profes- pay senior employees covered by cer-
sionals, as applicable, that meets the tified system(s) aggregate compensa-
certification criteria in 430.404 and the tion in a certified calendar year in an
documentation requirements of this amount up to the Vice Presidents sal-
section. ary under 3 U.S.C. 104.
(2) Grant provisional certification of (3) Full certification of an agencys
an agencys senior employee appraisal appraisal system will be renewed auto-
system(s) for 1 calendar year when an matically for an additional 2 calendar
agency has designed, but not yet fully years, if
implemented or applied, an appraisal (i) The agency meets the annual re-
system(s) for its senior executives or porting requirements in paragraph (g)
senior professionals, as applicable, that of this section; and
meets the certification criteria in (ii) Based on those annual reports,
430.404. OPM may extend provisional OPM determines, and OMB concurs,
certification into the following cal- that the appraisal system(s) continues
endar year in order to permit an agen- to meet the certification criteria and
cy to take any actions needed to adjust procedural requirements set forth in
pay based on annual summary ratings, this subpart.
ratings of record, or other performance (f) Provisional certification. (1) OPM,
appraisal results determined during the with OMB concurrence, may grant pro-
calendar year for which the system was visional certification when the design
certified; or of an agencys appraisal system(s) for
(3) Suspend certification under para- senior executives or senior profes-
graph (h) of this section if, at any time sionals, as applicable, meets the re-
during the certification period, OPM, quirements set forth in this subpart,
with OMB concurrence, determines but insufficient documentation exists
349
to determine whether the actual appli- (h) Suspension of certification. (1)

cation and administration of the ap- When OPM determines that an agen-
praisal system(s) meet the require- cys certified appraisal system is no
ments for full certification. OPM, with longer in compliance with certification
OMB concurrence, may grant provi- criteria, OPM, with OMB concurrence,
sional certification to an agency more may suspend such certification, as pro-
than once. vided in paragraph (c)(3) of this sec-
(2) During the 1-year period of provi- tion.
sional certification, an agency may set (2) An agencys system certification
the rate of basic pay for a senior execu- is automatically suspended when OPM
tive covered by the provisionally cer- withdraws performance appraisal sys-
tified system at a rate that does not tem approval or mandates corrective
exceed the rate for level II of the Exec- action because of misapplication of the
utive Schedule (consistent with 5 CFR system as authorized under 430.210(c),
part 534, subpart D, when effective) and 430.312(c), and 430.403(e).
pay senior employees covered by provi- (3) OPM will notify the head of the
sionally certified systems aggregate agency at least 30 calendar days in ad-
compensation in the certified calendar vance of the suspension and the rea-
year in an amount up to the Vice son(s) for the suspension, as well as
Presidents salary under 3 U.S.C. 104 any expected corrective action. Upon
(consistent with 5 CFR part 530, sub- such notice, and until its system cer-
part B). tification is reinstated, the agency
must set a senior executives rate of
(3) An agency must resubmit an ap-
basic pay under 5 CFR part 534, subpart
plication requesting provisional certifi-
D, when effective, at a rate that does
cation for every calendar year for
not exceed the rate for level III of the
which it intends to maintain provi-
Executive Schedule. While certifi-
sional certification. An agency with a
cation is suspended, an agency must
provisionally certified appraisal sys- limit aggregate compensation received
tem(s) may request that OPM, with in a calendar year by a senior employee
OMB concurrence, grant full certifi- to the rate for level I of the Executive
cation upon a showing that its per- Schedule. Pay adjustments, cash
formance appraisal systems for senior awards, and levels of pay in effect prior
executives and senior professionals, as to that notice will remain in effect un-
applicable, meet the certification cri- less OPM finds that any such decision
teria in 430.404 and the documentation and subsequent action was in violation
requirements in this section, particu- of law, rule, or regulation.
larly with respect to the implementa- (4) OPM, with OMB concurrence, may
tion and administration of the sys- reinstate an agencys suspended certifi-
tem(s) over at least two consecutive cation only after the agency has taken
performance appraisal periods. appropriate corrective action.
(g) Annual reporting requirement. (5) OPM may reinstate the certifi-
Agencies with certified appraisal sys- cation of an appraisal system that has
tems must provide OPM with a general been automatically suspended under
summary of the annual summary rat- paragraph (h)(2) of this section upon
ings and ratings of record, as applica- the agencys compliance with the ap-
ble, and rates of basic pay, pay adjust- plicable OPM-mandated corrective ac-
ments, cash awards, and aggregate tion(s).
total compensation (including any
lump-sum payments in excess of the PART 432PERFORMANCE BASED
applicable aggregate limitation on pay
that were paid in the current calendar
REDUCTION IN GRADE AND RE-
year as required by 530.204) for their MOVAL ACTIONS
senior employees covered by a certified
Sec.
appraisal system at the conclusion of
432.101 Statutory authority.
each appraisal period that ends during 432.102 Coverage.
a calendar year for which the certifi- 432.103 Definitions.

cation is in effect, in accordance with 432.104 Addressing unacceptable perform-
OPM instructions. ance.
350
432.105 Proposing and taking action based who has not completed 1 year of cur-
on unacceptable performance. rent continuous employment in the
432.106 Appeal and grievance rights. same or similar positions;
432.107 Agency records.
(5) An action imposed by the Merit
AUTHORITY: 5 U.S.C. 4303, 4305. Systems Protection Board under the
SOURCE: 54 FR 26179, June 21, 1989, unless authority of 5 U.S.C. 1206;
otherwise noted. (6) An action taken under 5 U.S.C.
7521 against an administrative law
432.101 Statutory authority. judge;
This part applies to reduction in (7) An action taken under 5 U.S.C.
grade and removal of employees cov- 7532 in the interest of national secu-
ered by the provisions of this part rity;
based solely on performance at the un- (8) An action taken under a provision
acceptable level. 5 U.S.C. 4305 author- of statute, other than one codified in
izes the Office of Personnel Manage- title 5 of the U.S. Code, which excepts
ment to prescribe regulations to carry the action from the provisions of title
out the purposes of title 5, chapter 43, 5 of the U.S. Code;
United States Code, including 5 U.S.C. (9) A removal from the Senior Execu-
4303, which covers agency actions to re- tive Service to a civil service position
duce in grade or remove employees for outside the Senior Executive Service
unacceptable performance. (The provi- under part 359 of this chapter;
sions of 5 U.S.C. 7501 et seq., may also (10) A reduction-in-force governed by
be used to reduce in grade or remove part 351 of this chapter;
employees. See part 752 of this chap- (11) A voluntary action by the em-
ter.) ployee;
[58 FR 65533, Dec. 15, 1993] (12) A performance-based action
taken under part 752 of this chapter;
432.102 Coverage. (13) An action that terminates a tem-
(a) Actions covered. This part covers porary or term promotion and returns
reduction in grade and removal of em- the employee to the position from
ployees based on unacceptable perform- which temporarily promoted, or to a
ance. different position of equivalent grade
(b) Actions excluded. This part does and pay if the agency informed the em-
not apply to: ployee that it was to be of limited du-
(1) The reduction in grade of a super- ration;
visor or manager who has not com- (14) A termination in accordance
pleted the probationary period under 5 with terms specified as conditions of
U.S.C. 3321(a)(2) if such a reduction is employment at the time the appoint-
based on supervisory or managerial ment was made; and
performance and the reduction is to (15) An involuntary retirement be-
the grade held immediately before because of disability under part 831 of
coming a supervisor or manager in ac- this chapter.
cordance with 5 U.S.C. 3321(b); (c) Agencies covered. This part applies
(2) The reduction in grade or removal to:
of an employee in the competitive serv- (1) The executive departments listed
ice who is serving a probationary or at 5 U.S.C. 101;
trial period under an initial appoint- (2) The military departments listed
ment; at 5 U.S.C. 102;
(3) The reduction in grade or removal (3) Independent establishments in the
of an employee in the competitive serv- executive branch as described at 5
ice serving in an appointment that re- U.S.C. 104, except for a Government
quires no probationary or trial period corporation; and
who has not completed 1 year of cur- (4) The Government Printing Office.
rent continuous employment in the (d) Agencies excluded. This part does
same or similar position under other not apply to:
than a temporary appointment limited (1) A Government corporation;
to 1 year or less; (2) The Central Intelligence Agency;

(4) The reduction in grade or removal (3) The Defense Intelligence Agency;
of an employee in the excepted service (4) The National Security Agency;
351
432.103 5 CFR Ch. I (1116 Edition)
(5) Any executive agency or unit (13) An individual occupying a posi-

thereof which is designated by the tion in the excepted service for which
President and the principal function of employment is not reasonably expected
which is the conduct of foreign intel- to exceed 120 calendar days in a con-
ligence or counterintelligence activi- secutive 12 month period; and
ties; (14) A manager or supervisor re-
(6) The General Accounting Office; turned to his or her previously held
(7) The U.S. Postal Service; and grade pursuant to 5 U.S.C. 3321 (a)(2)
(8) The Postal Rate Commission. and (b).
(e) Employees covered. This part ap- [54 FR 26179, June 21, 1989, as amended at 57
plies to individuals employed in or FR 10125, Mar. 24, 1992; 57 FR 20042, May 11,
under a covered agency as specified at 1992; 58 FR 13192, Mar. 10, 1993; 58 FR 65533,
432.102(c) except as listed in 432.102(f). Dec. 15, 1993]
(f) Employees excluded. This part does
not apply to: 432.103 Definitions.
(1) An employee in the competitive For the purpose of this part
service who is serving a probationary (a) Acceptable performance means per-
or trial period under an initial appoint- formance that meets an employees
ment; performance requirement(s) or stand-
(2) An employee in the competitive ard(s) at a level of performance above
service serving in an appointment that unacceptable in the critical ele-
requires no probationary or trial pe- ment(s) at issue.
riod, who has not completed 1 year of (b) Critical element means a work as-
current continuous employment in the signment or responsibility of such im-
same or similar positions under other portance that unacceptable perform-
than a temporary appointment limited ance on the element would result in a
to 1 year or less; determination that an employees over-
(3) An employee in the excepted serv- all performance is unacceptable.
ice who has not completed 1 year of (c) Current continuous employment
current continuous employment in the means a period of employment or serv-
same or similar positions; ice immediately preceding an action
(4) An employee outside the United under this part in the same or similar
States who is paid in accordance with positions without a break in Federal
local native prevailing wage rates for civilian employment of a workday.
the area in which employed; (d) Opportunity to demonstrate accept-
(5) An individual in the Foreign Serv- able performance means a reasonable
ice of the United States; chance for the employee whose per-
(6) An employee who holds a position formance has been determined to be
with the Veterans Health Administra- unacceptable in one or more critical
tion which has been excluded from the elements to demonstrate acceptable
competitive service by or under a pro- performance in the critical element(s)
vision of title 38, United States Code, at issue.
unless such employee was appointed to (e) Reduction in grade means the in-
such a position under section 7401(3) of voluntary assignment of an employee
title 38; to a position at a lower classification
(7) An administrative law judge ap- or job grading level.
pointed under 5 U.S.C. 3105; (f) Removal means the involuntary
(8) An individual in the Senior Execu- separation of an employee from em-
tive Service; ployment with an agency.
(9) An individual appointed by the (g) Similar positions mean positions in
President; which the duties performed are similar
(10) An employee occupying a posi- in nature and character and require
tion in Schedule C as authorized under substantially the same or similar
part 213 of this chapter; qualifications, so that the imcumbents
(11) A reemployed annuitant; could be interchanged without signifi-
(12) A technician in the National cant training or undue interruption to
Guard described in 5 U.S.C. 8337(h)(1), the work.

employed under section 709(b) of title (h) Unacceptable performance means
32; performance of an employee that fails
352
to meet established performance stand- tunity to demonstrate acceptable per-

ards in one or more critical elements of formance.
such employees position. (2) If an employee has performed ac-
ceptably for 1 year from the beginning
FR 49076, Nov. 29, 1989; 55 FR 25950, June 26, of an opportunity to demonstrate ac-
1990; 57 FR 23045, June 1, 1992; 57 FR 60717, ceptable performance (in the critical
Dec. 22, 1992; 58 FR 65534, Dec. 15, 1993; 60 FR element(s) for which the employee was
43946, Aug. 23, 1995] afforded an opportunity to dem-
onstrate acceptable performance), and
432.104 Addressing unacceptable per- the employees performance again be-
formance. comes unacceptable, the agency shall
At any time during the performance afford the employee an additional op-
appraisal cycle that an employees per- portunity to demonstrate acceptable
formance is determined to be unaccept- performance before determining wheth-
able in one or more critical elements, er to propose a reduction in grade or
the agency shall notify the employee of removal under this part.
the critical element(s) for which per- (3) A proposed action may be based
formance is unacceptable and inform on instances of unacceptable perform-
the employee of the performance re- ance which occur within a 1 year period
quirement(s) or standard(s) that must ending on the date of the notice of pro-
be attained in order to demonstrate ac- posed action.
ceptable performance in his or her po- (4) An employee whose reduction in
sition. The agency should also inform grade or removal is proposed under this
the employee that unless his or her part is entitled to:
performance in the critical element(s) (i) Advance notice. (A) The agency
improves to and is sustained at an ac- shall afford the employee a 30 day ad-
ceptable level, the employee may be re- vance notice of the proposed action
duced in grade or removed. For each that identifies both the specific in-
critical element in which the employ- stances of unacceptable performance
ees performance is unacceptable, the by the employee on which the proposed
agency shall afford the employee a rea- action is based and the critical ele-
sonable opportunity to demonstrate ac- ment(s) of the employees position in-
ceptable performance, commensurate volved in each instance of unacceptable
with the duties and responsibilities of performance.
the employees position. As part of the (B) An agency may extend this ad-
employees opportunity to demonstrate vance notice period for a period not to
acceptable performance, the agency exceed 30 days under regulations pre-
shall offer assistance to the employee scribed by the head of the agency. An
in improving unacceptable perform- agency may extend this notice period
ance. further without prior OPM approval for
the following reasons:
FR 65534, Dec. 15, 1993] (1) To obtain and/or evaluate medical
information when the employee has
432.105 Proposing and taking action raised a medical issue in the answer to
based on unacceptable perform- a proposed reduction in grade or re-
ance. moval;
(a) Proposing action based on unaccept- (2) To arrange for the employees
able performance. (1) Once an employee travel to make an oral reply to an ap-
has been afforded a reasonable oppor- propriate agency official, or the travel
tunity to demonstrate acceptable per- of an agency official to hear the em-
formance pursuant to 432.104, an agen- ployees oral reply;
cy may propose a reduction-in-grade or (3) To consider the employees answer
removal action if the employees per- if an extention to the period for an an-
formance during or following the op- swer has been granted (e.g., because of
portunity to demonstrate acceptable the employees illness or incapacita-
performance is unacceptable in 1 or tion);

more of the critical elements for which (4) To consider reasonable accommo-
the employee was afforded an oppor- dation of a handicapping condition;
353
432.106 5 CFR Ch. I (1116 Edition)
(5) If agency procedures so require, to obligations of 29 CFR 1613.704. If the

consider positions to which the em- employee who raises a medical condi-
ployee might be reassigned or reduced tion has the requisite years of service
in grade; or under the Civil Service Retirement
(6) To comply with a stay ordered by System or the Federal Employees Re-
a member of the Merit Systems Protec- tirement System, the agency shall pro-
tion Board under 5 U.S.C. 1208(b). vide information concerning applica-
(C) If an agency believes that an ex- tion for disability retirement. As pro-
tension of the advance notice period is vided at 831.501(d) of this chapter, an
necessary for another reason, it may employees application for disability
request prior approval for such exten- retirement shall not preclude or delay
sion from the Chief, Family Programs any other appropriate agency decision
and Employee Relations Division, Of- or personnel action.
fice of Labor Relations and Workforce (b) Final written decision. The agency
Performance, Personnel Systems and shall make its final decision within 30
Oversight Group, Office of Personnel days after expiration of the advance
Management, 1900 E Street NW., Wash- notice period. Unless proposed by the
ington, DC 20415. head of the agency, such written deci-
(ii) Opportunity to answer. The agency sion shall be concurred in by an em-
shall afford the employee a reasonable ployee who is in a higher position than
time to answer the agencys notice of the person who proposed the action. In
proposed action orally and in writing. arriving at its decision, the agency
(iii) Representation. The agency shall shall consider any answer of the em-
allow the employee to be represented ployee and/or his or her representative
by an attorney or other representative. furnished in response to the agencys
An agency may disallow as an employ- proposal. A decision to reduce in grade
ees representative an individual whose or remove an employee for unaccept-
activities as a representative would able performance may be based only on
cause a conflict of interest or position those instances of unacceptable per-
or an employee whose release from his formance that occurred during the 1
or her official position would give rise year period ending on the date of
to unreasonable costs to the Govern- issuance of the advance notice of pro-
ment or whose priority work assign- posed action under 432.105(a)(4)(i). The
ment precludes his or her release from agency shall issue written notice of its
official duties. decision to the employee at or before
(iv) Consideration of medical condi- the time the action will be effective.
tions. The agency shall allow an em- Such notice shall specify the instances
ployee who wishes to raise a medical of unacceptable performance by the
condition which may have contributed employee on which the action is based
to his or her unacceptable performance and shall inform the employee of any
to furnish medical documentation (as applicable appeal and/or grievance
defined in 339.102 of this chapter of the rights.
condition for the agencys consider- [54 FR 26179, June 21, 1989. Redesignated and
ation. Whenever possible, the employee amended at 54 FR 49076, Nov. 29, 1989. Redes-
shall supply this documentation fol- ignated and amended at 58 FR 65534, Dec. 15,
lowing the agencys notification of un- 1993]
acceptable performance under 432.104.
If the employee offers such documenta- 432.106 Appeal and grievance rights.
tion after the agency has proposed a re- (a) Appeal rights. An employee cov-
duction in grade or removal, he or she ered under 432.102(e) who has been re-
shall supply this information in ac- moved or reduced in grade under this
cordance with 432.105(a)(4)(ii). In con- part may appeal to the Merit Systems
sidering documentation submitted in Protection Board if the employee is:
connection with the employees claim (1) In the competitive service and has
of a medical condition, the agency may completed a probationary or trial pe-
require or offer a medical examination riod;
in accordance with the criteria and (2) In the competitive service serving
procedures of part 339 of this chapter, in an appointment which is not subject
and shall be aware of the affirmative to a probationary or trial period, and
354
has completed 1 year of current contin- wise, a bargaining unit employee who
uous employment in the same or simi- has exercised his or her option to
lar position(s) under other than a tem- grieve an action taken under this part
porary appointment limited to 1 year may not also file an appeal on the mat-
or less; ter with the Merit Systems Protection
(3) A preference eligible in the ex- Board.
cepted service who has completed 1
[54 FR 26179, June 21, 1989. Redesignated at 54
year of current continuous employ- FR 49076, Nov. 29, 1989; 57 FR 20043, May 11,
ment in the same or similar posi- 1992; 58 FR 13192, Mar. 10, 1993. Redesignated
tion(s); or at 58 FR 65534, Dec. 15, 1993]
(4) A nonpreference eligible in the ex-
cepted service who is covered by sub- 432.107 Agency records.
parts C and D of part 752 of this chap- (a) When the action is effected. The
ter. agency shall preserve all relevant doc-
(b) Grievance rights. (1) A bargaining umentation concerning a reduction in
unit employee covered under 432.102(e) grade or removal which is based on un-
who has been removed or reduced in acceptable performance and make it
grade under this part may file a griev- available for review by the affected em-
ance under an applicable negotiated ployee or his or her representative. At
grievance procedure if the removal or a minimum, the agencys records shall
reduction in grade action falls within consist of a copy of the notice of pro-
its coverage (i.g., is not excluded by the posed action, the answer of the em-
parties to the collective bargaining ployee when it is in writing, a sum-
agreement) and the employee is: mary thereof when the employee
(i) In the competitive service and has makes an oral reply, the written notice
completed a probationary or trial pe- of decision and the reasons therefor,
riod. and any supporting material including
(ii) In the competitive service, serv- documentation regarding the oppor-
ing in an appointment which is not tunity afforded the employee to dem-
subject to a probationary or trial pe- onstrate acceptable performance.
riod, and has completed 1 year of cur- (b) When the action is not affected. As
rent continuous employment in the provided at 5 U.S.C. 4303(d), if, because
same or similar position(s) under other of performance improvement by the
than a temporary appointment limited employee during the notice period, the
to 1 year or less; employee is not reduced in grade or re-
(iii) A preference eligible in the ex- moved, and the employees perform-
cepted service who has completed 1 ance continues to be acceptable for 1
year of current continuous employ- year from the date of the advanced
ment in the same or similar posi- written notice provided in accordance
tion(s); or with 432.105(a)(4)(i), any entry or
(iv) A nonpreference eligible in the other notation of the unacceptable per-
excepted service who is covered by sub- formance for which the action was pro-
parts C and D of part 752 of the chapter. posed shall be removed from any agen-
(2) 5 U.S.C. 7114(a)(5) and 7121(b)(3), cy record relating to the employee.
and the terms of an applicable collec-
tive bargaining agreement govern rep- [55 FR 25950, June 26, 1990, as amended at 58
resentation for employees in an exclu- FR 65534, Dec. 15, 1993]
sive bargaining unit who grieve a mat-
ter under this section through the ne- PART 451AWARDS
gotiated grievance process.
(c) Election of forum. As provided at 5 Subpart AAgency Awards
U.S.C. 7121(e)(1), a bargaining unit em-
Sec.
ployee who by law may file an appeal
451.101 Authority and coverage.
or a grievance, and who has exercised 451.102 Definitions.
his or her option to appeal an action 451.103 Agency award program(s).
taken under this part to the Merit Sys- 451.104 Awards.
tems Protection Board, may not also 451.105 Award restrictions.

file a grievance on the matter under a 451.106 Agency responsibilities.
negotiated grievance procedure. Like- 451.107 OPM responsibilities.
355
451.101 5 CFR Ch. I (1116 Edition)
Subpart BPresidential Awards cash awards under 5 U.S.C. 4505a to be

paid to categories of employees who
451.202 Payment.
would not be eligible otherwise.
451.203 Responsibilities of the Office of Per- (c) This subpart applies to employees
sonnel Management. as defined by section 2105 and agencies
as defined by section 4501 of title 5,
Subpart CPresidential Rank Awards United States Code, except as provided
451.301 Ranks for the Senior Executive
in 451.105 and 451.201(b).
Service. (d) For the regulatory requirements
451.302 Ranks for senior career employees. for granting performance awards to
451.303 Restrictions. Senior Executive Service (SES) em-
451.304 Payment of Rank Awards. ployees under 5 U.S.C. 5384, refer to
451.305 Responsibilities of the Office of Per- 534.405 of this chapter.
sonnel Management.
(e) An agency may grant perform-
AUTHORITY: 5 U.S.C. 4302, 45014509; E.O. ance-based cash awards on the basis of
11438, 33 FR 18085, 3 CFR, 19661970 Comp., p. a rating of record at the fully success-
755; E.O. 12828, 58 FR 2965, 3 CFR, 1993 Comp., ful level (or equivalent) or above under
p. 569.
the authority of 5 U.S.C. 4505a and the
provisions of this part to eligible non-
Subpart AAgency Awards GS employees who are covered by 5
U.S.C. chapter 45 and this part and who
SOURCE: 60 FR 43946, Aug. 23, 1995, unless are not otherwise covered by an ex-
otherwise noted. plicit statutory authority for the pay-
ment of such awards, including 5 U.S.C.
5384 (SES performance awards).
(a) Chapter 45 of title 5, United
States Code authorizes agencies to pay [60 FR 43946, Aug. 23, 1995; 60 FR 47646, Sept.
13, 1995, as amended at 69 FR 70359, Dec. 6,
a cash award to, grant time-off to, and 2004; 72 FR 1270, Jan. 11, 2007]
incur necessary expense for the hon-
orary recognition of, an employee (in- 451.102 Definitions.
dividually or as a member of a group)
and requires the Office of Personnel Award means something bestowed or
Management to prescribe regulations an action taken to recognize and re-
governing such authority. Chapter 43 of ward individual or team achievement
title 5, United States Code, provides for that contributes to meeting organiza-
recognizing and rewarding employees tional goals or improving the effi-
whose performance so warrants. The ciency, effectiveness, and economy of
regulations in this subpart, in com- the Government or is otherwise in the
bination with chapters 43 and 45 of title public interest. Such awards include,
5, United States Code, and any other but are not limited to, employee incen-
applicable law, establish the require- tives which are based on predetermined
ments for agency award programs. criteria such as productivity standards,
(b) Section 4 of E.O. 11438 (Pre- performance goals, measurement sys-
scribing Procedures Governing Inter- tems, award formulas, or payout sched-
departmental Cash Awards to the ules.
Members of the Armed Forces, Decem- Award program means the specific
ber 3, 1968) requires the Office of Per- procedures and requirements estab-
sonnel Management to prescribe proce- lished by an agency or a component of
dures for covering the cost of a cash an agency for granting awards under
award recommended by more than one subchapter I of chapter 43 and sub-
agency for a member of the armed chapter I of chapter 45 of title 5, United
forces for the adoption or use of a sug- States Code, and this subpart.
gestion, invention, or scientific
achievement. Section 1 of E.O. 12828 451.103 Agency award program(s).
(Delegation of Certain Personnel Man- (a) Agencies shall develop one or
agement Authorities, January 5, 1993) more award programs for employees
delegates to the Office of Personnel covered by this subpart.

Management the authority of the (b) Agencies are encouraged to in-
President to permit performance-based volve employees in developing such
356
programs. When agencies involve em- absorb the award costs and pay the
ployees, the method of involvement award; and
shall be in accordance with law. (2) A member of the armed forces for
(c) An agency award program shall a suggestion, invention, or scientific
provide for achievement, arrangements shall be
(1) Obligating funds consistent with made to transfer funds to the agency
applicable agency financial manage- having jurisdiction over the member in
ment controls and delegations of au- accordance with E.O. 11438, Pre-
thority; and scribing Procedures Governing Inter-
(2) Documenting justification for departmental Cash Awards to the
awards that are not based on a rating Members of the Armed Forces.
of record (as defined in 430.203 of this (e) An award may be granted to a
chapter). separated employee or the legal heir(s)
or estate of a deceased employee.
[60 FR 43946, Aug. 23, 1995; 60 FR 47646, Sept.
13, 1995] (f) A time-off award granted under
this subpart shall not be converted to a
451.104 Awards. cash payment under any cir-
cumstances.
(a) An agency may grant a cash, hon-
orary, or informal recognition award, (g) When granting an award paid as a
or grant time-off without charge to percentage of basic pay under 5 U.S.C.
leave or loss of pay consistent with 4505a(a)(2), the rate of basic pay used
chapter 45 of title 5, United States must include any applicable locality
Code, and this part to an employee, as payment under 5 CFR part 531, subpart
an individual or member of a group, on F; special rate supplement under 5 CFR
the basis of part 530, subpart C; or similar payment
or supplement under other legal au-
(1) A suggestion, invention, superior
thority. For an employee receiving a
accomplishment, productivity gain, or
retained rate under 5 CFR part 536, sub-
other personal effort that contributes
part C (or similar authority, such as 5
to the efficiency, economy, or other
CFR 359.705), the rate of basic pay is
improvement of Government oper-
the maximum payable rate for the em-
ations or achieves a significant reduc-
ployees grade or level, rather than the
tion in paperwork;
retained rate.
(2) A special act or service in the pub-
lic interest in connection with or re- (h) Programs for granting perform-
lated to official employment; or ance-based cash awards on the basis of
a rating of record at the fully success-
(3) Performance as reflected in the
ful level (or equivalent) or above, as de-
employees most recent rating of
signed and applied, must make mean-
record (as defined in 430.203 of this
ingful distinctions based on levels of
chapter), provided that the rating of
performance.
record is at the fully successful level
(or equivalent) or above, except that [60 FR 43946, Aug. 23, 1995, as amended at 69
performance awards may be paid to FR 70359, Dec. 6, 2004; 70 FR 31287, May 31,
SES members only under 534.405 of 2005; 70 FR 74995, Dec. 19, 2005; 72 FR 1270,
this chapter and not on the basis of Jan. 11, 2007]
this subpart.
451.105 Award restrictions.
(b) A cash award under this subpart
is a lump sum payment and is not basic (a) In accordance with 5 U.S.C. 4508,
pay for any purpose. agencies shall not grant awards under
(c) An award is subject to applicable this subpart during a Presidential elec-
tax rules, such as withholding. tion period to employees who are
(d) When an award is approved for (1) In a Senior Executive Service po-
(1) An employee of another agency, sition and not a career appointee as de-
the benefiting agency shall make ar- fined under 5 U.S.C. 3132(a)(4); or
rangements to transfer funds to the (2) In an excepted service position of
employing agency to cover the award. a confidential or policy-determining
If the administrative costs of transfer- character (schedule C).

ring funds would exceed the amount of (b) In accordance with 5 U.S.C. 4509,
the award, the employing agency shall agencies shall not grant cash awards
357
451.106 5 CFR Ch. I (1116 Edition)
under this subpart to employees ap- (j) Agencies shall take any corrective
pointed by the President with Senate action required by OPM to ensure con-
confirmation who serve in formance with applicable law, regula-
(1) An Executive Schedule position, tion, and OPM policy.
or
(2) A position for which pay is set in 451.107 OPM responsibilities.
statute by reference to a section or (a) OPM shall review and approve or
level of the Executive Schedule. disapprove each agency recommenda-
tion for an award that would grant
451.106 Agency responsibilities.
more than $10,000 to an individual em-
(a) In establishing and operating its ployee.
award program(s), an agency shall as- (b) When a recommended award
sure that a program does not conflict would grant more than $25,000 to an in-
with or violate any other law or Gov- dividual employee, OPM shall review
ernmentwide regulation. the recommendation and submit it (if
(b) When a recommended award approved) to the President for final ap-
would grant more than $10,000 to an in- proval.
dividual employee, the agency shall
(c) OPM shall review and approve or
submit the recommendation to OPM
disapprove a request from the head of
for approval.
an Executive agency to extend the pro-
(c) Agencies shall provide for commu-
nicating with employees and super- visions of 5 U.S.C. 4505a to any cat-
visors (e.g., through formal training) egory of employees within that agency
about the relevant parts of their award that would not be covered otherwise.
program(s). (d) OPM may evaluate the operation
(d) Agencies shall evaluate their and application of an agencys award
award program(s). program(s).
(e) Agencies shall document all cash
and time off awards in compliance with Subpart BPresidential Awards
instructions in the OPM Operating
Manual, THE GUIDE TO PROCESSING SOURCE: 51 FR 8419, Mar. 11, 1986, unless
PERSONNEL ACTIONS, for sale by the otherwise noted.
U.S. Government Printing Office, Su-
perintendent of Documents. 451.201 Authority and coverage.
(f) Agencies shall file award docu- (a) Under chapter 45 of title 5, United
ments in the Official Personnel Folder
States Code, the President may pay a
in compliance with instructions in the
cash award to and incur necessary ex-
OPM Operating Manual, THE GUIDE
TO PERSONNEL RECORDKEEPING, penses for the honorary recognition of
for sale by the U.S. Government Print- an employee who:
ing Office, Superintendent of Docu- (b) Awards granted under paragraph
ments. (a) of this section are subject to the re-
(g) Agencies shall report award data strictions as specified in 451.105.
to the Central Personnel Data File in (1) By his/her suggestion, invention
Compliance with instructions in the or other personal effort contributes to
OPM Operating Manual, FEDERAL the efficiency, economy, or other im-
WORKFORCE REPORTING SYSTEMS, provement of Government operations,
for sale by the U.S. Government Print- or achieves a significant reduction in
ing Office, Superintendent of Docu- paperwork; or
ments. (2) Performs an exceptionally meri-
(h) Agencies shall maintain and sub- torious special act or service in the
mit to OPM such records as OPM may public interest in connection with or
require. related to official employment.
(i) Agencies shall give due weight to (c) Except as provided in paragraph
an award granted under this part in (b) of this section, this subpart applies
qualifying and selecting an employee to employees as defined by section 2105

for promotion as provided in 5 U.S.C. of title 5, United States Code.
3362.
358
(d) This subpart applies to agencies (2) Be an employee of the agency, as

as defined in section 4501 of title 5, defined at 5 U.S.C. 3132(a)(1), on the
United States Code. nomination deadline set by OPM; and
(3) Have at least 3 years of career or
FR 65534, Dec. 15, 1993; 60 FR 43947, Aug. 23, career-type Federal civilian service at
1995; 67 FR 52596, Aug. 13, 2002] the SES level. Service need not be con-
tinuous.
451.202 Payment. (i) Qualifying service includes ap-
(a) A Presidential award is paid by pointments in the SES, the Senior For-
the agency(ies) primarily benefiting eign Service, the Defense Intelligence
from the employee contribution. Senior Executive Service, and similar
(b) A Presidential award may be in senior executive systems.
addition to an agency award under sub- (ii) Qualifying service does not in-
part A of this part. clude noncareer, limited term, or lim-
ited emergency appointments in the
451.203 Responsibilities of the Office SES or their equivalent, Scientific and
of Personnel Management. Professional (ST) appointments, and
(a) The Office of Personnel Manage- Senior-Level (SL) appointments.
ment, in accordance with Executive (c) Each agency may nominate up to
Order 10717, as amended, shall review 9 percent of its SES career appointees
agency recommendations for the Presi- for rank awards.
dents Award for Distinguished Federal
Civilian Service and recommend to the 451.302 Ranks for senior career em-
ployees.
President which career employees
should receive this award. (a) The circumstances under which
(b) Under Executive Order 11228, sec- the President may award the rank of
tion 2, the Office of Personnel Manage- Distinguished Senior Professional and
ment has the authority to determine Meritorious Senior Professional to a
the activity or activities primarily senior career employee are set forth in
benefiting from any suggestion, inven- 5 U.S.C. 4507a.
tion, or other contribution which forms (b) To be eligible for a rank award, a
the basis for a Presidential award senior career employee must:
under 5 U.S.C. 4504. (1) Hold a career appointment in a
Senior-Level (SL) or Scientific-Profes-
FR 65534, Dec. 15, 1993; 67 FR 52596, Aug. 13, sional (ST) position that is subject to
2002] OPM position allocations under part
319 of this chapter and paid under 5
Subpart CPresidential Rank U.S.C. 5376 on the nomination deadline
set by OPM;
Awards
(2) Be an employee of the agency on
the nomination deadline set by OPM;
SOURCE: 67 FR 52596, Aug. 13, 2002, unless and
otherwise noted.
(3) Have at least 3 years of career or
451.301 Ranks for the Senior Execu- career-type Federal civilian service
tive Service. above GS15. Service need not be con-
tinuous. Qualifying service includes ap-
(a) The circumstances under which pointments that are not
the President may award the rank of
(i) Time-limited; or
Distinguished Executive and Meri-
torious Executive to a Senior Execu- (ii) To positions that are excepted
tive Service (SES) career appointee are from the competitive service because
set forth in 5 U.S.C. 4507. of their confidential or policy-making
(b) To be eligible for a rank award, a character.
senior executive must: (c) Each agency may nominate up to
(1) Hold a career appointment in the 9 percent of its senior career employees
for rank awards.
SES, as defined at 5 U.S.C. 3132(a)(4),

on the nomination deadline set by [67 FR 52596, Aug. 13, 2002, as amended at 72
OPM; FR 44367, Aug. 8, 2007]
359
451.303 5 CFR Ch. I (1116 Edition)
451.303 Restrictions. aggregate compensation at 5 U.S.C.

5307.
(a) Governmentwide limitationsSES.
During any fiscal year [67 FR 52596, Aug. 13, 2002, as amended at 72
(1) The number of career SES ap- FR 44367, Aug. 8, 2007]
pointees awarded the rank of Meri-
torious Executive may not exceed 5 451.305 Responsibilities of the Office
of Personnel Management.
percent of the career SES; and
(2) The number of career SES ap- (a) Annually, OPM shall establish
pointees awarded the rank of Distin- criteria, including terms, conditions,
guished Executive may not exceed 1 and evaluation factors, for rank award
percent of the career SES. nominations, in consultation with
(b) Governmentwide limitationsSenior agencies and other stakeholders. Agen-
career employees. During any fiscal cies shall nominate individuals for
year rank awards in accordance with OPM
(1) The number of senior career em- criteria and any other instructions.
ployees awarded the rank of Meri- (b) Annually, OPM shall review agen-
torious Senior Professional may not cy recommendations for Presidential
exceed 5 percent of the total number of Rank Awards for SES career ap-
career appointees to OPM-allocated pointees and senior career employees
Senior-Level (SL) and Scientific-Pro- under 5 U.S.C. 4507 and 4507a, and rec-
fessional (ST) positions; and ommend to the President which of
(2) The number of senior career em- those individuals should receive rank
ployees awarded the rank of Distin- awards.
guished Senior Professional may not
exceed 1 percent of the total number of PART 470PERSONNEL MANAGE-
career appointees to OPM-allocated MENT RESEARCH PROGRAMS
Senior-Level (SL) and Scientific-Pro- AND DEMONSTRATIONS
fessional (ST) positions. PROJECTS
(c) Frequency of awards. Individuals
awarded a Distinguished or Meritorious Subpart AGeneral Provisions
rank under this subpart shall not be
entitled to be awarded that rank dur- Sec.
ing the following 4 fiscal years. 470.101 Statutory authority.
[67 FR 52596, Aug. 13, 2002, as amended at 72
FR 44367, Aug. 8, 2007] Subpart BRegulatory Requirements
Pertaining to Research Programs
451.304 Payment of Rank Awards.
470.201 Purposes of research programs.
(a) Receipt of the Distinguished rank
470.203 Eligible parties.
by an SES career appointee or a senior
470.205 Initiation of research programs.
career employee entitles the individual
to a lump-sum payment of an amount Subpart CRegulatory Requirements
equal to 35 percent of annual basic pay, Pertaining to Demonstration Projects
which shall be in addition to the basic
pay paid under 5 U.S.C. 5376 or 5382, or 470.301 Program expectations.
any award paid under 5 U.S.C. 5384. 470.303 Eligible parties.
(b) Receipt of the Meritorious rank 470.305 Submission of proposals for dem-
by an SES career appointee or a senior onstration projects.
470.307 Notification responsibilities.
career employee entitles such indi-
470.309 Public hearing.
vidual to a lump-sum payment of an
470.311 Final project approval.
amount equal to 20 percent of annual
470.313 Project implementation regulations.
basic pay, which shall be in addition to 470.315 Project modification and extension.
the basic pay paid under 5 U.S.C. 5376 470.317 Project evaluation.
or 5382, or any award paid under 5
U.S.C. 5384. AUTHORITY: 5 U.S.C. 4706.
(c) Payment of rank awards must SOURCE: 48 FR 2726, Jan. 21, 1983, unless
comply with the restrictions on annual otherwise noted.
360
Subpart AGeneral Provisions ered a demonstration project for

purposes of this part.
470.101 Statutory authority. Research means systematic, intensive
(a) Section 4702, title 5, United States study directed toward fuller scientific
Code, provides the Office of Personnel knowledge or understanding of the sub-
Management (OPM) with the authority ject studied. Activities classified as re-
to: search are structured experimental or
(1) Establish and maintain, and assist descriptive investigations conducted
in the establishment and maintenance according to sound methodological
of, research programs to study im- principles.
proved methods and technologies in Research Program means a planned
Federal personnel management; study of the manner in which public
(2) Evaluate the research programs management policies and systems are
established under paragraph (a)(1) of operating or have operated, the effects
this section; of those policies and systems, the pos-
(3) Establish and maintain a program sibilities for change, and comparisons
for the collection and public dissemina- among policies and systems.
tion of information relating to per-
sonnel management research, and for Subpart BRegulatory Require-
encouraging and facilitating the ex- ments Pertaining to Research
change of information among inter- Programs
ested persons and entities; and
(4) Carry out the preceding functions 470.201 Purposes of research pro-
directly or through agreement or con- grams.
tract. The purposes of research programs
(b) Section 4703, title 5, United States undertaken under this subpart are to
Code, provides OPM with the authority stimulate and conduct personnel man-
to conduct and evaluate demonstration agement research which:
projects to determine whether a speci- (a) Develops new knowledge, tech-
fied change in personnel management niques, and materials about personnel
policies or procedures would result in management;
improved Federal personnel manage- (b) Seeks solutions to personnel man-
ment. agement problems;
(c) This part supplements and imple- (c) Provides a factual base to support
ments the provisions of chapter 47 of existing or proposed changes in per-
title 5, United States Code, relating to sonnel management policies, tech-
the conduct of personnel research pro- niques, and materials;
grams and demonstration projects, and (d) Modifies or develops personnel
must be read together with those pro- management systems which improve
visions of law. the management of the Federal Gov-
ernments human resources;
470.103 Definitions. (e) Gathers, makes explicit, systema-
In this part: tizes, and transmits the knowledge and
Demonstration Project means a project techniques of practicing managers for
conducted by the Office of Personnel the guidance of others and as a factual
Management, or under its supervision, basis for research needs determination;
to determine whether a specified (f) Develops new methods or provides
change in personnel management poli- new standards for conducting personnel
cies or procedures would result in im- management research; or
proved Federal personnel management (g) Designs systems for the assess-
(5 U.S.C. 4701). The project must re- ment and transmittal of relevant per-
quire the waiver of a provision of law, sonnel management strategies.
rule, or regulation which is eligible for
waiver under the demonstration au- 470.203 Eligible parties.
thority contained in 5 U.S.C. 4703. A Research may be conducted by the
project which can be undertaken under Office of Personnel Management, or
an agencys own authority and does not under contract or agreement, as appro-
require the waiver of a provision of priate, by:
law, rule, or regulation is not consid- (a) Federal agencies;
361
470.205 5 CFR Ch. I (1116 Edition)
(b) State and local governments; (d) OPM may seek legislation, or to
(c) Institutions of higher education; the extent already authorized by law,
or make changes in regulation to imple-
(d) Other public or private institu- ment permanently successful proce-
tions or organizations, profit or non- dures, techniques, new management
profit. knowledge, and materials which im-
prove personnel management programs
470.205 Initiation of research pro- or techniques.
grams.
OPM will announce opportunities for 470.303 Eligible parties.
research contracts by issuing Requests (a) Any Federal agency, or groups of
for Proposals (RFPs) in accordance two or more Federal agencies, eligible
with Federal procurement regulations. to propose demonstration projects
Unsolicited proposals may be accepted; under 5 U.S.C. 4701(a)(1) and 4701(b)
however the relevance of the proposed may conduct demonstration projects
research to OPM research needs will after approval by the Office of Per-
determine the acceptability of the pro- sonnel Management and required Con-
posal. gressional and public review.
(b) While only a Federal agency may
Subpart CRegulatory Require- propose and conduct a demonstration
ments Pertaining to Dem- project, the agency may be assisted in
onstration Projects the development and evaluation of the
project under contract or agreement
470.301 Program expectations. with public or private institutions and
(a) Demonstration projects permit organizations.
the Office of Personnel Management
and Federal agencies to test alter- 470.305 Submission of proposals for
demonstration projects.
native personnel management concepts
in controlled situations to determine (a) OPM will accept project proposals
the likely effects and ramifications of at any time. However, OPM may delay
proposed changes before putting them action for a reasonable amount of time
into general effect. OPM will assist on submitted proposals until compari-
agencies, within available resources, in sons can be made with other existing
developing projects which demonstrate projects or with project proposals of a
new or improved personnel methods. similar nature not yet received by
(b) The demonstration project must OPM but known to be under develop-
be proposed in a research context. The ment.
project plan must include a research (b) Agencies must submit the project
design which contains: proposal in the form of a project plan
(1) Measurable goals or objectives; to OPM for approval. OPM will pre-
(2) Acceptable expected results or scribe the content of a project plan in
outcomes; its guidance and instructions, which at
(3) A description of the procedures, a minimum will contain the items
methods and techniques to be dem- identified in 5 U.S.C. 4703(b)(1) and 5
onstrated in achieving the desired CFR 470.301(b).
goals or objectives; (c) Agencies will outline, at the time
(4) An evaluation section describing proposed demonstration projects are
the data collection and analysis proce- submitted to OPM for approval, what
dures to be used to assess the success discussions of the project have been
or failure of the project from a quali- held with labor organizations which
tative and quantitative standpoint; and have been accorded exclusive recogni-
(5) An itemization of all costs and tion for bargaining units containing
benefits associated with the project, to employees involved in or affected by
the agency, the Government, and the the proposed demonstration project.
community. (d) OPM may combine and evaluate
(c) OPM may establish and maintain similar project proposals received from
activities which publish, exchange and different agencies as a single project,

apply the results of demonstration with the approval of the agencies in-
projects. volved.
362
470.307 Notification responsibilities. tive oral presentations by interested

(a) 5 U.S.C. 4703 requires notification individuals and organizations. The pre-
of tentatively approved demonstration siding officer, designated by the Direc-
project plans to Congress, employees, tor, OPM, shall in his or her reasonable
labor organizations, and the public. discretion regulate the course of the
(b) OPM shall: proceedings and the conduct of those
(1) Notify each House of the Congress present at the hearing by appropriate
180 days in advance of the beginning of means.
each project; and (c) A written summary shall be made
(2) Publish each tentatively approved of the oral evidence.
project plan as a notice in the FEDERAL (d) The record shall be left open for 2
REGISTER. weeks after the conclusion of the hear-
(c) Each agency having a tentatively ing to receive additional written data,
approved project plan shall: views, and arguments from the parties
(1) Notify and make available copies participating in the hearing.
of the project plan to:
(i) All employees who may be inter- 470.311 Final project approval.
ested in or affected by the activities of (a) The Office of Personnel Manage-
the demonstration project; and ment will consider all timely relevant
(ii) All labor organizations accorded oral and written views, arguments, and
exclusive recognition for bargaining data before final approval or dis-
units which include employees in or af- approval of a project plan. OPM may
fected by the project plan. request that the agency modify the
(2) Certify to OPM in writing when tentatively approved project plan be-
and how the requirements of fore final approval because of com-
470.307(c)(1) were carried out and documents and data received from the Con-
ment the manner in which it insured gress, the public, labor organizations,
that all affected employees were noti- and affected employees. OPM will not
fied. permit the agency to implement the
(3) Observe the consultation and ne- project until all required consultation
gotiation requirements of 5 U.S.C. 4703 or negotiation has been completed, in-
(f) and (g). cluding the conclusion of impasse reso-
470.309 Public hearing. lution and negotiability disputes.
(b) The Office of Personnel Manage-
(a) Notice of public hearing. OPM shall ment shall provide a copy of the final
hold a public hearing no less than 30 version of the project plan to each
days after the date of its notice in the House of the Congress at least 90 days
FEDERAL REGISTER during which inter- in advance of the date the project is to
ested persons or organizations may take effect.
present their written or oral views con-
(c) Agencies involved in the project
cerning the proposed demonstration
shall communicate the content of the
project. The notice of public hearing
final project plan to:
shall be published in the FEDERAL REG-
ISTER and shall:
(1) Labor organizations and affected
(1) State the date, time, place and employees; and
purpose of the hearing; (2) Individuals and groups known to
(2) Describe briefly the project; be interested in the projects activities.
(3) Indicate where more information
and a copy of the project plan may be 470.313 Project implementation regu-
lations.
obtained;
(4) State the name and address of the Agencies will prepare demonstration
person who will receive written com- project implementing regulations, as
ments from those unable to attend the appropriate, to replace Government-
hearing; and wide statutes and regulations waived
(5) Indicate the date by which writ- for the project. Demonstration project
ten comments must be received to be implementing regulations issued pur-
considered. suant to an OPM-approved demonstra-

(b) Nature of public hearing. The hear- tion project must be approved by OPM
ing will be informal to encourage effec- and shall have full force and authority
363
470.315 5 CFR Ch. I (1116 Edition)
pursuant to Title VI of the Civil Serv- PART 511CLASSIFICATION UNDER

ice Reform Act of 1978. THE GENERAL SCHEDULE
470.315 Project modification and ex- Subpart AGeneral Provisions
tension.
Sec.
OPM-approved projects permit the 511.101 Definitions.
testing of alternative personnel sys-
tems and procedures in accordance Subpart BCoverage of the General
with the provisions of the project plan. Schedule
The provisions of approved project
511.201 Coverage of and exclusions from the
plans will not be modified, duplicated General Schedule.
in organizations not listed in the 511.202 Authority of agency.
project plan, or extended by agencies 511.203 Exercise of authority.
to individuals or groups of employees
not included in the project plan with- Subparts CE [Reserved]
out the approval of the Office of Per- Subpart FClassification Appeals
sonnel Management. OPM will inform
the agency of notification responsibil- 511.601 Applicability of regulations.
ities under 470.307. The extent of noti- 511.602 Notification of classification deci-
sion.
fication requirements will depend on 511.603 Right to appeal.
the nature and extent of the requested 511.604 Filing an appeal.
project modification. 511.605 Time limits.
511.606 Form and content of an appeal.
470.317 Project evaluation. 511.607 Nonappealable issues.
511.608 Employee representatives.
(a) Compliance evaluation. OPM will 511.609 Ascertainment of facts.
review the operation of the project pe- 511.610 Notification.
riodically to determine its compliance 511.611 Cancellation of an employee appeal.
with the requirements of this part and 511.612 Finality of decision.
511.613 Appeals reconsideration by the Of-
the approved project plan. If OPM de- fice.
termines that an agency is not meeting 511.614 Review by the Director.
legal, regulatory, or project plan re- 511.615 Temporary compliance authority.
quirements, it may, as appropriate, di- 511.616 Availability of information.
rect the agency to take corrective ac-
Subpart GEffective Dates of Position
tion or terminate the project.
Classification Actions or Decisions
(b) Results evaluation. All approved
project plans will contain an evalua- 511.701 Effective dates generally.
tion section to measure the impact of 511.702 Agency or Office classification ap-
peal decisions.
the project results in relation to its ob- 511.703 Retroactive effective date.
jectives and to determine whether or
not permanent changes in law and/or AUTHORITY: 5 U.S.C. 5115, 5338, 5351.
regulation should be considered or pro- SOURCE: 33 FR 12445, Sept. 4, 1968, unless
posed. Where the project plan provides otherwise noted.
for agency evaluation of project re-
sults, OPM will review those project Subpart AGeneral Provisions
evaluation efforts, may conduct eval-
uations of its own, on a sample basis,
to verify results, and may report its In this part:
own conclusions. If OPM or the agency (a) Agency and employee have the
determines that an experiment is cre- meanings given them by section 5102 of
ating a substantial hardship on, or is title 5, United States Code.
(b) Class means all positions which
not in the best interest of, the public,
are sufficiently similar as to (1) kind or
the Federal Government, employees, or
subject-matter of work, (2) level of dif-
eligibles, even though the experiment
ficulty and responsibility, and (3) the
is being conducted properly, OPM or
qualification requirements of the work,

the agency may jointly or unilaterally to warrant similar treatment in per-
terminate the project. sonnel and pay administration.
364
(c) Classification means the analysis 511.601 Applicability of regulations.

and identification of a position and
This subpart applies to a request
placing it in a class under the position-
from an employee or an agency for the
classification plan established by OPM
Office to review the classification of a
under chapter 51 of title 5, United
position subject to chapter 51 of title 5,
States Code.
United States Code, or for the Office to
(d) Grade means all classes of posi- determine whether a position is subject
tions which (although different with to that chapter.
respect to kind or subject-matter of
work) are sufficiently equivalent as to 511.602 Notification of classification
(1) level of difficulty and responsi- decision.
bility, and (2) level of qualification re-
An employee whose position is re-
quirements of the work, to warrant
classified to a lower grade which is
their inclusion within one range of
based in whole or in part on a classi-
rates of basic pay.
fication decision is entitled to a
(e) Position means the work, con- prompt written notice from the agen-
sisting of the duties and responsibil- cy. This includes employees who are el-
ities, assigned by competent authority igible for retained grade or pay. If the
for performance by an employee. reclassification is due to an Office clas-
sification certificate issued under the
Subpart BCoverage of the authority of 5 U.S.C. 5110, the agency
General Schedule will also explain the reasons for the re-
classification action to the employee.
511.201 Coverage of and exclusions This notice shall inform the employee:
from the General Schedule. (a) Of his or her right to appeal the
This part and chapter 51 of the title classification decision to the agency (if
5, United States Code, apply to all posi- the agency has an established appeal
tions in the agencies except those spe- system and it has the authority to re-
cifically excluded by section 5102 of view the classification decision), or to
title 5, United States Code. (5 U.S.C. the Office as provided in this subpart if
5102) such an appeal has not already been
made;
(5 U.S.C. 1104; Pub. L. 95454, sec. 3(5))
(b) Of the time limits within which
[44 FR 54693, Sept. 21, 1979] the employees appeal must be filed in
order to preserve any retroactive bene-
511.202 Authority of agency. fits under 511.703; and
Subject to the provisions of subpart (c) Any other appeal or grievance
F of this part and 511.203, an agency rights available under applicable law,
may determine whether a position is rule, regulation or negotiated agree-
subject to, or is excluded from, chapter ment.
51 of title 5, United States Code, by sec-
tion 5102(c) (7) and (8) thereof. 511.603 Right to appeal.
(a) Employee appeal. An employee, or
511.203 Exercise of authority. the employees designated representa-
An agency may exercise the author- tive acting on behalf of an employee,
ity under 511.202 only in accordance may request an Office decision as to:
with guidelines and standards issued by (1) The appropriate occupational se-
OPM. ries or grade of the employees official
position.
Subparts CE [Reserved] (2) The inclusion under or exclusion
from chapter 51 of title 5, United
Subpart FClassification Appeals States Code, of the official position by
the employees agency or the Office,
except in the case of a position located

SOURCE: 46 FR 9913, Jan. 30, 1981, unless in the Office of the Architect of the
otherwise noted.
Capitol.
365
511.604 5 CFR Ch. I (1116 Edition)
(b) Agency appeal. The head of an cumstances by either the Director or

agency, or an authorized representa- the Directors designee.
tive, may appeal any classification cer- [46 FR 9913, Jan. 30, 1981, as amended at 71
tificate issued by the Office under sec- FR 37489, June 30, 2006]
tions 5103 or 5110 of title 5, U.S.C., with
respect to any position in the agency. 511.606 Form and content of an ap-
peal.
511.604 Filing an appeal.
(a) Employee appeal. An employees
(a) Employee. An employee may ap- appeal shall be in writing, and shall
peal by writing to the Office directly, contain the reasons why the employee
or by forwarding the appeal through believes his or her position is erro-
the employing agency. neously classified, or should be brought
(b) Referral of an employee appeal to under or excluded from chapter 51 of
the Office. An agency shall forward, title 5, United States Code. The agen-
within 60 calendar days of its receipt in cy, when forwarding the employees ap-
the agency, and employees appeal filed peal or when requested by the Office,
through the agency to the Office when: shall furnish all relevant facts con-
(1) The employee has directed the ap- cerning the position and the agencys
peal to the Office and the agencys justification for its classification deci-
written decision is not favorable; or sion. The agency shall also comment
(2) The agency is not authorized to on the information submitted by the
act on the employees appeal; or employee if requested to do so by the
(3) The agency has not decided the Office. Either the employee or agency
appeal within the established time pe- may submit relevant information to
riod. the Office at any time following the
initial filing of an appeal.
511.605 Time limits. (b) Agency appeal. An agencys appeal
(a) Employees. (1) An employee may shall be in writing, and shall contain
submit an appeal of his or her official its reasons and justification for re-
position at any time. If the employee questing a review of the Offices certifi-
has suffered a loss in grade or pay, is cate.
not entitled to retained grade or pay, (c) Inspection of the Offices appellate
and desires retroactive adjustments, record. The employee, an employees
the time limits in 511.703 must be ob- representative and the agency will be
served. permitted to inspect the Offices appel-
(2) If the employee is appealing an late record on request. Agencies will
agency decision or an Office classifica- make available to appellants copies of
tion certificate issued under 5 U.S.C. any and all information submitted by
5103 or 5110, the employee shall prompt- the agency to the Office with respect to
ly appeal if he or she disagrees with the the appellants individual appeal.
classification certificate. Employees
must meet the time limits provided in 511.607 Nonappealable issues.
511.703 in order to preserve the right (a) The following issues are not ap-
to retroactive adjustment. pealable to the Office under this sub-
(b) Agency. An agency may appeal an part. Such issues may be reviewed
Office classification certificate issued under administrative or negotiated
under authority of section 5103 or 5110 grievance procedures if applicable:
of title 5, United States Code, at any (1) The accuracy of the official posi-
time. Heads of agencies should appeal tion description including the inclu-
prior to the implementation date of the sion or exclusion of a major duty in the
certificate if they disagree with the official position description. When the
classification rationale. accuracy of the official position de-
(c) Reconsideration. An employee or scription is questioned by the em-
agency may request reconsideration of ployee, the employee will be directed
an Office appellate decision. The re- to review this matter with his or her
quest must be in writing, and filed not supervisor. If management and the em-
later than 45 calendar days after the ployee cannot resolve their differences
decision is issued. This time limit may informally, the accuracy of the posi-
be waived under exceptional cir- tion description should be reviewed in
366
accordance with administrative or ne- would cause a conflict of interest or po-

gotiated grievance procedures. If the sition; an employee who cannot be re-
accuracy of the position description leased from his or her official duties
cannot be resolved in this manner, the because of the priority needs of the
Office will decide the appeal on the Government; or an employee whose re-
basis of the actual duties and respon- lease would give rise to unreasonable
sibilities assigned by management and costs to the Government.
performed by the employee;
(2) An assignment or detail out of the 511.609 Ascertainment of facts.
scope of normally performed duties as The employee, a designated rep-
outlined in the official position de- resentative, and the agency shall fur-
scription; nish such facts as may be requested by
(3) The accuracy, consistency or use the Office within the time frames spec-
of agency supplemental classification ified. The facts shall be in writing
guides; or, when so requested. The Office, in its
(4) The title of the position unless a discretion, may investigate or audit
specific title is authorized in a pub- the position. A representative may not
lished Office classification standard or participate in OPM on-site audits un-
guide, or the title reflects a qualifica- less specifically requested to do so by
tion requirement or authorized area of the Office.
specialization.
(b) The following issues are neither 511.610 Notification.
appealable nor reviewable:
(1) The class, grade, or pay system of The Office shall notify the employee,
a position to which the employee is not or a representative if one is designated,
officially assigned by an official per- and the agency in writing of its deci-
sonnel action; sion.
(2) An agencys proposed classifica-
511.611 Cancellation of an employee
tion decision; appeal.
(3) The class, grade, or pay system of
a position to which the employee is de- An employees appeal shall be can-
tailed or promoted on a time-limited celled and the employee so notified in
basis, except that employees serving writing in the following circumstances:
under time-limited promotion for 2 (a) On receipt of the employees writ-
years or more may appeal the classi- ten request for cancellation.
fication of their positions to the Office (b) On failure to prosecute, when the
under these procedures. employee or the designated representa-
(4) The classification of the employ- tive does not furnish requested infor-
ees position based on position-to-posi- mation, or proceed with the advance-
tion comparisons and not standards; ment of the appeal.
(5) The accuracy of grade level cri- The Office may at its discretion reopen
teria contained in an Office classifica- a cancelled appeal on a showing that
tion guide or standard; or circumstances beyond the control of
(6) A classification decision that has the employee prevented pursuing the
been issued by the Office under this appeal.
subpart when there has been no change
in the governing classification stand- 511.612 Finality of decision.
ard(s) or the major duties of the posi- An appellate decision made by the
tion. Office is final unless reconsidered by
[46 FR 9913, Jan. 30, 1981, as amended at 58 the Office. There is no further right of
FR 59348, Nov. 9, 1993] appeal. The Office may reconsider a de-
cision at its discretion. The decision
511.608 Employee representatives. shall constitute a certificate which is
An employee may select a represent- mandatory and binding on all adminis-
ative of his or her choice to assist in trative, certifying, payroll, disbursing,
the preparation and presentation of an and accounting officials of the Govern-
appeal. An agency may disallow an em- ment. Agencies shall review their own
ployees representative when the indi- classification decisions for identical,
viduals activities as a representative similar or related positions to insure
367
511.613 5 CFR Ch. I (1116 Edition)
consistency with the Offices certifi- 511.616 Availability of information.

cate.
(a) The Office, upon a request which
511.613 Appeals reconsideration by identifies the individual from whose
the Office. file the information is sought, shall
disclose the following information
The Office may, at its discretion, re-
from an appeal file to a member of the
open and reconsider a certificate issued
public, except when the disclosure
under this subpart.
would constitute a clearly unwarranted
(a) Requests which contain new and
invasion of personal privacy:
material information, or disagree-
ments over the significance of informa- (1) Confirmation of the name of the
tion, will be remanded to the Directors individual from whose file the informa-
designee for a decision. tion is sought and the names of the
(b) The Office may reopen and recon- other parties concerned;
sider a decision only when written ar- (2) The status of the appeal;
gument or evidence is presented which (3) The results of the appeal (i.e.,
establishes a reasonable doubt con- proper title, pay plan, series, and
cerning the technical accuracy of the grade);
decision. (4) the classification requested (i.e.,
title, pay plan, series, and grade); and
[71 FR 37489, June 30, 2006]
(5) With the consent of the parties
511.614 Review by the Director. concerned, other reasonably identified
information from the file.
The Director may, at his or her dis- (b) The Office will disclose to the par-
cretion, reopen and reconsider any de- ties concerned the information con-
cision when written argument or evi-
tained in an appeal file in proceedings
dence is submitted which tends to es-
under this part. For the purposes of
tablish that:
this section, the parties concerned
(a) The previous decision involves an means the Government employee or
erroneous interpretation of law or reg-
former Government employee involved
ulation, or a misapplication of estab-
in the proceedings, his or her rep-
lished policy:
resentative designated in writing, and
(b) The previous decision is of a prec-
the representative of the agency or the
edential nature involving a new or
Office involved in the proceeding.
unreviewed policy consideration that
may have effects beyond the actual (5 U.S.C. 552, Freedom of Information Act,
case at hand, or is otherwise of such an Pub. L. 92502)
exceptional nature as to merit the per- [50 FR 3313, Jan. 24, 1985]
sonal attention of the Director.
511.615 Temporary compliance au- Subpart GEffective Dates of Po-

thority. sition Classification Actions or
Agencies may use temporary or con- Decisions
ditional compliance action, e.g., a tem-
porary promotion or a temporary reas- SOURCE: 46 FR 9915, Jan. 30, 1981, unless
signment when available, if: otherwise noted.
(a) A position has been certified by
the Office under either section 5110 or 511.701 Effective dates generally.
5112 of title 5, United States Code; (a) Agency classification actions. (1) A
(b) The certificate has not been sus- classification action is a determination
pended; and, to establish or change the title, series,
(c) The agency or employee has re- grade or pay system of a position based
quested reconsideration. on application of published position
This authority will not be used if the classification standards or guides. This
position has been downgraded and the is a position action.
employee is entitled to retained grade (i) The effective date of a position ac-
under section 5362 of title 5, United tion taken by an agency shall be the
States Code. date an official with properly delegated
368
authority approves (certifies) the pro- ployee is not entitled to retained grade
posed classification. This is accom- or pay.
plished when the authorized official(s) (3) When the original decision re-
signs the allocation of the position. quires that the grade or pay of the po-
(ii) The effective date of a position sition be reduced and the employee is
action may be extended to correspond not entitled to retained grade or pay
with the effective date of the personnel the reviewing authority shall issue a
action when: new certificate if it sustains the origi-
(A) The position is being changed to nal decision. Since demotions cannot
lower grade or pay; and be made retroactive, the effective date
(B) The employee occupying the posi- of the new certificate shall be not ear-
tion is eligible for retained grade or lier than the date of the certificate,
pay under 5 U.S.C. 53625363. and not later than the beginning of the
(2) A position action is implemented fourth pay period after the date of the
by a personnel action. The personnel certificate unless a subsequent date is
action must occur within a reasonable specifically stated in the certificate.
period of time following the date of the [46 FR 9915, Jan. 30, 1981, as amended at 58
position action. FR 65534, Dec. 15, 1993; 71 FR 37489, June 30,
(3) If the position action requires a 2006]
personnel action which will result in a
loss of grade or pay to the occupant of 511.702 Agency or Office classifica-
the position, the agency must advise tion appeal decisions.
the employee, in writing, of the posi- (a) Subject to 511.703, the effective
tion action and the proposed date of date of a change in the classification of
the personnel action. This notice shall a position resulting from a classifica-
be issued prior to taking a personnel tion appeal decision by either an agen-
action. cy or the Office is not earlier than the
(4) Except as provided in 511.703, date of the decision and not later than
classification actions may not be made the beginning of the fourth pay period
retroactive. following the date of the decision, ex-
(b) Office of Personnel Managements cept when a subsequent date is specifi-
classification decision. (1) The effective cally provided in the decision.
date of a classification decision made (b) The implementation of the deci-
by means of a certificate issued under sion may be suspended by the Office
the authority of section 5110, title 5, when it determines before the effective
United States Code is not earlier than date that a review of the decision is
the date of the certificate, and not warranted. The determination to sus-
later than the beginning of the fourth pend implementation may be made by
pay period following the date of the the Director or the Directors designee.
certificate, unless a subsequent date is Suspending the implementation does
specifically stated in the certificate. not change the effective date of the de-
Except as otherwise provided by this cision except when the original deci-
paragraph the filing of an appeal of sion requires that the grade or pay of
such a certificate does not delay its ef- the position be reduced and the em-
fective date. ployee is not entitled to grade or pay
(2) The implementation of the certifi- retention.
cate may be suspended when it is deter- (c) When the original decision re-
mined before its effective date that a quires that the grade or pay of the po-
review of the classification decision is sition be reduced and the employee is
warranted and suspension is desirable. not entitled to grade or pay retention,
The determination to suspend imple- the reviewing authority, if sustaining
mentation may be made by the Direc- the original decision, shall issue a new
tor or the Directors designee. Sus- certificate and the effective date of the
pending the implementation of a cer- new certificate shall be not earlier
tificate does not automatically change than the date of the new decision and
the effective date except when the cer- not later than the beginning of the
tificate requires that the grade or pay fourth pay period following the date of
of the position be reduced and the em- the new decision, unless a subsequent
369
511.703 5 CFR Ch. I (1116 Edition)
date is specifically stated in the new PART 530PAY RATES AND

decision. SYSTEMS (GENERAL)
FR 37489, June 30, 2006] Subpart A [Reserved]
511.703 Retroactive effective date. Subpart BAggregate Limitation on Pay

(a) Applicability. A retroactive effec- Sec.
tive date may be required only if the 530.201 Purpose.
employee is wrongfully demoted. 530.203 Administration of aggregate limita-
(b) Downgrading. (1) The effective tion on pay.
date of a classification appellate cer- 530.204 Payment of excess amounts.
tificate or agency appellate decision 530.205 Records.
can be retroactive only if it corrects a
Subpart CSpecial Rate Schedules for
classification action which resulted in
Recruitment and Retention
a loss of grade or pay. In order for the
decision to be made retroactive, the GENERAL PROVISIONS
employee must file the initial request 530.301 Purpose and applicability.
for review with either the agency or 530.302 Definitions.
the Office not later than 15 calendar 530.303 Coverage.
days after the effective date of the re- 530.304 Establishing or increasing special
rates.
classification action.
530.305 Agency requests for new or increased
(2) However, if the appellate decision special rates.
raises the grade of the position above 530.306 Evaluating agency requests for new
the original grade, retroactivity will or increased special rates.
apply only to the extent of restoration 530.307 OPM review and adjustment of spe-
to the original grade. cial rate schedules.
530.308 Treatment of special rate as basic
(3) The right to a retroactive effec- pay.
tive date provided by this section is 530.309 Miscellaneous provisions.
preserved on subsequent appeals from
SETTING AN EMPLOYEES RATE OF PAY
an agency or Office classification deci-
sion when the subsequent appeal is 530.321 General.
filed not later than 15 calendar days 530.322 Setting pay when a special rate is
newly established or increased.
following receipt of written notifica-
530.323 Setting pay when a special rate is
tion of a final agency administrative discontinued or decreased.
decision or 15 calendar days after the
AUTHORITY: 5 U.S.C. 5305 and 5307; subpart
effective date of the action taken as a
C also issued under 5 U.S.C. 5338, sec. 4 of the
result of the classification decision, Performance Management and Recognition
whichever is later. System Termination Act of 1993 (Pub. L. 103
(c) Grade change based on new duties 89), 107 Stat. 981, and sec. 1918 of Public Law
and responsibilities. Retroactivity may 11184, 123 Stat. 2619.
be based only on duties and responsibil-
ities existing at the time of demotion Subpart A [Reserved]
and cannot be based on duties and re-
sponsibilities assigned later. Subpart BAggregate Limitation
(d) Retroactivity when time limits are on Pay
extended. The right to a retroactive ef-
fective date provided by this section SOURCE: 69 FR 70360, Dec. 6, 2004, unless
may be preserved at the discretion of otherwise noted.
the Office, on a showing by the em-
ployee that he or she was not notified 530.201 Purpose.
of the applicable time limit and was This subpart establishes regulations
not otherwise aware of it, or that cir- for limiting an employees aggregate
cumstances beyond his or her control annual compensation. An employees
prevented filing an appeal within the aggregate compensation received in

prescribed time limit. any given calendar year may not ex-
ceed the rate of pay for level I of the
370
Executive Schedule or the rate payable (iv) Back pay awarded to an em-
to the Vice President at the end of the ployee under 5 U.S.C. 5596 because of an
calendar year, whichever is applicable unjustified personnel action;
to the employee based on the certifi- (v) Student loan repayments under 5
cation status under 5 CFR part 430, U.S.C. 5379; and
subpart D, of the performance ap- (vi) Nonforeign area cost-of-living al-
praisal system covering that employee. lowances under 5 U.S.C. 5941(a)(1).
These regulations must be applied in Aggregate limitation means the limita-
conjunction with 5 U.S.C. 5307. tion on aggregate compensation re-
530.202 Definitions. ceived in any given calendar year as es-
tablished by 5 U.S.C. 5307. For an exec-
In this subpart: utive branch employee (including em-
Agency means an executive agency as
ployees in Senior Executive Service po-
defined at 5 U.S.C. 105.
sitions paid under 5 U.S.C. 5383 and em-
Aggregate compensation means the
total of ployees in senior-level or scientific or
(1) Basic pay received as an employee professional positions paid under 5
of the executive branch or as an em- U.S.C. 5376), a General Schedule em-
ployee outside the executive branch to ployee in the legislative branch, or
whom the General Schedule applies; General Schedule employee in the judi-
(2) Premium pay under 5 U.S.C. chap- cial branch (excluding those paid under
ter 53, subchapter IV; 28 U.S.C. 332(f), 603, and 604), the limi-
(3) Premium pay under 5 U.S.C. chap- tation on aggregate compensation is
ter 55, subchapter V; equal to the rate for level I of the Exec-
(4) Incentive awards and perform- utive Schedule in effect at the end of
ance-based cash awards under 5 U.S.C. the applicable calendar year. For an
chapters 45 and 53; employee in a Senior Executive Service
(5) Recruitment and relocation incen- position paid under 5 U.S.C. 5383 and an
tives under 5 U.S.C. 5753 and retention employee in a senior-level or scientific
incentives under 5 U.S.C. 5754; or professional position paid under 5
(6) Extended assignment incentives U.S.C. 5376 covered by an applicable
under 5 U.S.C. 5757; performance appraisal system that has
(7) Supervisory differentials under 5 been certified under 5 CFR part 430,
U.S.C. 5755; subpart D, the limitation on aggregate
(8) Post differentials under 5 U.S.C. compensation is equal to the total an-
5925; nual compensation payable to the Vice
(9) Danger pay allowances under 5 President under 3 U.S.C. 104 at the end
U.S.C. 5928; of a calendar year.
(10) Post differentials based on envi-
Basic pay means the total amount of
ronmental conditions for employees
pay received at a rate fixed by law or
stationed in nonforeign areas under 5
administrative action for the position
U.S.C. 5941(a)(2);
(11) Physicians comparability allow- held by an employee, including any
ances under 5 U.S.C. 5948; special rate under 5 CFR part 530, sub-
(12) Continuation of pay under 5 part C, or any locality-based com-
U.S.C. 8118; parability payment under 5 CFR part
(13) Lump-sum payments in excess of 531, subpart F, or other similar pay-
the aggregate limitation on pay as re- ment under other legal authority, be-
quired by 530.204; and fore any deductions. Basic pay includes
(14) Other similar payments author- night and environmental differentials
ized under title 5, United States Code, for prevailing rate employees under 5
excluding U.S.C. 5343(f) and 5 CFR 532.511. Basic
(i) Overtime pay under the Fair pay excludes additional pay of any
Labor Standards Act of 1938, as amend- other kind.
ed, and 5 CFR part 551; Discretionary payment means a pay-
(ii) Severance pay under 5 U.S.C. 5595; ment an agency has discretion to make
(iii) Lump-sum payments for accu- to an employee. Payments that are au-
mulated and accrued annual leave upon thorized to be made to an employee
separation under 5 U.S.C. 5551 or 5552; under the terms of a service agreement
371
530.203 5 CFR Ch. I (1116 Edition)
or preauthorized to be made to an em- not receive any allowance, differential,

ployee at a regular fixed rate each pay bonus, award, or other similar cash
period are not discretionary payments. payment under title 5, United States
Employee has the meaning given that Code, in any calendar year which, in
term in 5 U.S.C. 2105. combination with the employees basic
Estimated aggregate compensation pay, would cause the employees aggre-
means the agencys projection of the gate compensation to exceed the rate
aggregate compensation an employee of pay for level I of the Executive
actually would receive during a cal- Schedule.
endar year but for application of the (2) An employee covered by a per-
aggregate limitation to future pay- formance appraisal system that has
ments. This projection must be based been certified under 5 CFR part 430,
upon known factors. Estimated aggre- subpart D, may not receive any allow-
gate compensation includes ance, differential, bonus, award, or
(1) The total amount of basic pay the other similar cash payment under title
employee will receive during the cal- 5, United States Code, in any calendar
endar year; year which, in combination with the
(2) Any lump-sum payment of excess employees basic pay, would cause the
amounts from a previous calendar employees aggregate compensation to
year, as described in 530.204; exceed the total annual compensation
(3) The total amount of nondis- payable to the Vice President under 3
cretionary payments the employee U.S.C. 104 on the last day of that cal-
would be entitled to receive during the endar year (i.e., the aggregate limita-
calendar year; and tion).
(4) The total amount of discretionary (3) An agency must make corrective
payments the employee would be au- actions as provided in paragraphs (g)
thorized to receive during the calendar and (h) of this section if the agency un-
year. derestimated or overestimated an em-
[69 FR 70360, Dec. 6, 2004, as amended at 70 ployees aggregate compensation in a
FR 25739, May 13, 2005; 72 FR 67837, Dec. 3, calendar year as a result of receiving
2007] or losing certification of its applicable
performance appraisal system under 5
530.203 Administration of aggregate CFR part 430, subpart D.
limitation on pay. (c) The aggregate limitations de-
(a) Except as provided in paragraph scribed in paragraphs (a) and (b) of this
(b) of this section, no executive branch section apply to the aggregate com-
employee or General Schedule em- pensation an employee actually re-
ployee in the legislative branch (or ceived during the calendar year with-
General Schedule employee in the judi- out regard to when the compensation
cial branch, excluding those paid under was earned.
28 U.S.C. 332(f), 603, and 604), may re- (d) When an agency authorizes a dis-
ceive any allowance, differential, cretionary payment for an employee,
bonus, award, or other similar cash the agency must defer any portion of
payment under title 5, United States such payment that, when added to the
Code, in any calendar year which, in estimated aggregate compensation the
combination with the employees basic employee is projected to receive, would
pay (whether received under title 5, cause the employees aggregate com-
United States Code, or otherwise), pensation during the calendar year to
would cause the employees aggregate exceed the applicable aggregate limita-
compensation to exceed the rate for tion. Any portion of a discretionary
level I of the Executive Schedule on payment deferred under this paragraph
the last day of that calendar year (i.e., must be available for payment as pro-
the aggregate limitation). vided in 530.204. When a discretionary
(b)(1) Subject to paragraph (b)(2) of payment is authorized but not required
this section, an employee in a Senior to be paid in the current calendar year,
Executive Service position paid under 5 an agency officials decision to set the
U.S.C. 5383 and an employee in a sen- payment date in the next calendar year
ior-level or scientific or professional is not considered a deferral under this
position paid under 5 U.S.C. 5376 may paragraph.
372
(e) An agency may not defer or dis- described in 530.204, and must consider
continue nondiscretionary payments this deemed deferred excess payment
for any period of time to make a dis- to be part of the employees aggregate
cretionary payment that would other- compensation for the new calendar
wise cause an employees pay to exceed year.
the applicable aggregate limitation. An (h) If an agency determines that it
agency may not defer or discontinue overestimated an employees aggregate
basic pay under any circumstance. compensation at an earlier date in the
(f) If, after an agency defers discre- calendar year, which caused the agency
tionary payments as required by para- to defer payments unnecessarily under
graph (d) of this section, the estimated this section, or the aggregate limita-
aggregate compensation to which an tion applicable to the employee is in-
employee is entitled exceeds the appli- creased during the calendar year, the
cable aggregate limitation, the agency agency may make appropriate correc-
must defer all nondiscretionary pay- tive payments to the employee during
ments (other than basic pay) as nec- the calendar year, notwithstanding
essary to avoid payments in excess of 530.204.
that limitation. An agency must defer [69 FR 70360, Dec. 6, 2004, as amended at 70
all nondiscretionary payments at the FR 25740, May 13, 2005]
time when otherwise continuing to pay
such payments would cause an employ- 530.204 Payment of excess amounts.
ees estimated aggregate compensation (a) An agency must pay the amounts
for that calendar year to exceed the ap- that were deferred because they were
plicable aggregate limitation. An agen- in excess of the aggregate limitation
cy must pay any portion of a nondis- (as described in 530.203) as a lump-sum
cretionary payment deferred under this payment at the beginning of the fol-
paragraph at a later date, as provided lowing calendar year, except as other-
in 530.204. wise provided in this section. This pay-
(g)(1) If an agency determines that it ment is part of the employees aggre-
underestimated an employees aggregate compensation for the new cal-
gate compensation at an earlier date in endar year.
the calendar year, or the aggregate (b) If a lump-sum payment under
limitation applicable to the employee paragraph (a) of this section causes an
is reduced during the calendar year, employees estimated aggregate com-
the sum of the employees remaining pensation to exceed the aggregate limi-
payments of basic pay may exceed the tation in the current calendar year, an
difference between the aggregate com- agency must consider only the employ-
pensation the employee has actually ees basic pay that is expected to be
received to date in that calendar year paid in the current year in determining
and the applicable aggregate limita- the extent to which the lump-sum pay-
tion. In such cases, the employee will ment may be paid. An agency must
become indebted to the Federal Gov- defer all other payments, as provided
ernment for any amount paid in excess in 530.203, in order to pay as much of
of the applicable aggregate limitation. the lump-sum excess amount as pos-
The head of the agency may waive the sible. Any payments deferred under
debt under 5 U.S.C. 5584, if warranted. this paragraph, including any portion
(2) To the extent that any excess of the lump-sum excess amount that
amount is attributable to amounts was not payable, are payable at the be-
that should have been deferred and ginning of the next calendar year, as
would have been payable at the begin- provided in paragraph (a) of this sec-
ning of the next calendar year, an tion.
agency must extinguish the excess (c) If an employee transfers to an-
amount on January 1 of the next cal- other agency, the gaining agency is re-
endar year. As part of the correction of sponsible for making any lump-sum
the error, the agency must deem the payment required by paragraph (a) of
excess amount to have been paid on this section. The previous employing
January 1 of the next calendar year agency must provide the gaining agen-
(when the debt was extinguished) as if cy with documentation regarding the
it were a deferred excess payment, as employees excess amount, as provided
373
530.205 5 CFR Ch. I (1116 Edition)
in 530.205. The previous employing Subpart CSpecial Rate Sched-

agency must provide a fund transfer ules for Recruitment and Re-
equal to the total cost of the lump-sum tention
payment to the gaining agency
through the Department of the Treas-
urys Intra-Governmental Payment otherwise noted.
and Collection System. If an employee
leaves Federal service, the employing GENERAL PROVISIONS
agency is responsible for making the
lump-sum payment to the employee as 530.301 Purpose and applicability.
provided in paragraph (d) of this sec- (a) Purpose. This subpart contains
tion. OPM regulations implementing 5
(d) An agency must pay any excess U.S.C. 5305, which authorizes the estab-
amount regardless of the calendar year lishment of special rates of pay for
limitation under the following condi- Federal employees in executive agen-
tions: cies to address significant recruitment
(1) If an employee dies, the employ- or retention problems. This subpart
ing agency must pay the entire excess also contains rules for determining an
amount as part of the settlement of ac- employees rate of pay when a special
counts, in accordance with 5 U.S.C. rate schedule is established, increased,
5582. decreased, or discontinued, or when
conditions for coverage under a special
(2) If an employee separates from
rate schedule are changed. All other
Federal service, the employing agency
pay actions for special rate employees
must pay the entire excess amount fol- are governed by the pay-setting rules
lowing a 30-day break in service. If the in 5 CFR parts 531 and 536.
individual is reemployed in the Federal (b) Applicability. Except as explained
service within the same calendar year in 530.303(a), this subpart applies only
as the separation, any previous pay- to GS employees.
ment of an excess amount must be con-
sidered part of that years aggregate 530.302 Definitions.
compensation for the purpose of apply- In this subpart:
ing the aggregate limitation for the re- Agency means an executive agency as
mainder of the calendar year. defined in 5 U.S.C. 105.
Authorized agency official means the
530.205 Records.
head of the agency or an official who is
An agency must maintain appro- authorized to act for the head of the
priate records to administer this sub- agency in the matter concerned.
part and must transfer such records to Employee has the meaning given that
any agency to which an employee may term in 5 U.S.C. 2105.
transfer. An agency must make such General Schedule or GS means the
records available to any agency that classification and pay system estab-
may employ the employee later during lished under 5 U.S.C. chapter 51 and
the same calendar year. An agencys subchapter III of chapter 53. It also re-
records must document the source of fers to the pay schedule of GS rates es-
any deferred excess amount remaining tablished under 5 U.S.C. 5332, as ad-
to the employees credit at the time of justed under 5 U.S.C. 5303 or other law
separation from the agency. In the case (including GS rates payable to GM em-
of an employee who separates from ployees). Law enforcement officers
(LEOs) receiving LEO special base
Federal service for at least 30 days, the
rates are covered by the GS classifica-
agency records also must document
tion and pay system, but receive higher
any payment of a deferred excess base rates of pay in lieu of GS rates at
amount made by the agency after sepa- grades GS3 through GS10.
ration. GM employee has the meaning given
that term in 5 CFR 531.203.

GS rate means a rate of basic pay
within the General Schedule, excluding
374
any LEO special base rate and addi- considered to apply to or cover an em-
tional pay of any kind such as locality ployee who meets the established cov-
payments or special rate supplements. erage conditions even when a rate
A rate payable to a GM employee is under that schedule is not currently
considered a GS rate. payable to the employee because of a
Highest applicable rate range means higher pay entitlement under another
the rate range applicable to an employ- pay schedule.
ees position that provides the highest Position of record means an employ-
rates of basic pay, excluding any re- ees official position (defined by grade,
tained rates. For example, a rate range occupational series, employing agency,
of special rates may exceed an applica- LEO status, and any other condition
ble locality rate range. In certain cir- that determines coverage under a pay
cumstances, the highest applicable rate schedule (other than official work-
range may consist of two types of pay site)), as documented on the employ-
rates from different pay schedules ees most recent Notification of Per-
e.g., a range where special rates (based sonnel Action (Standard Form 50 or
on a fixed dollar supplement) are high- equivalent) and current position de-
er in the lower portion of the range and scription. A position to which an em-
locality rates are higher in the higher ployee is temporarily detailed is not
portion of the range. documented as a position of record. For
Law enforcement officer or LEO has an employee whose change in official
the meaning given that term in 5 CFR position is followed within 3 workdays
550.103. by a reduction in force resulting in the
LEO special base rate means a special employees separation before he or she
base rate established for GS law en- is required to report for duty in the
forcement officers at grades GS3 new position, the position of record in
through GS10 under section 403 of the effect immediately before the position
Federal Employees Pay Comparability change is deemed to remain the posi-
Act of 1990 (section 529 of Pub. L. 101 tion of record through the date of sepa-
509, November 5, 1990, as amended) ration.
which is used in lieu of a GS rate. Rate of basic pay means the rate of
Locality payment has the meaning pay fixed by law or administrative ac-
given that term in 5 CFR 531.602. tion for the position held by an em-
Locality rate means a GS rate or an ployee before any deductions, including
LEO special base rate, if applicable, a GS rate, an LEO special base rate, a
plus any applicable locality payment. locality rate, a special rate under this
Official worksite means the official lo- subpart or a similar rate under 38
cation of an employees position of U.S.C. 7455, or a retained rate, but ex-
record as determined under 5 CFR cluding additional pay of any other
531.605. Official worksite is synonymous kind.
with the term official duty station Rate range or range means the range
as used in 5 U.S.C. 5305(i). of rates of basic pay for a grade within
OPM means the Office of Personnel an established pay schedule, excluding
Management. any retained rate. A rate range may
Pay schedule means a set of rate consist of GS rates, LEO special base
ranges established for GS employees rates, locality rates, special rates, or
under a single authorityi.e., the Gen- similar rates under other legal author-
eral Schedule, an LEO special base rate ity.
schedule (for grades GS3 through 10), a Retained rate means a rate above the
locality rate schedule based on GS maximum rate of the rate range appli-
rates, a locality rate schedule based on cable to the employee which is payable
LEO special base rates (for grades GS under 5 CFR part 536 or, for a former
3 through 10), a special rate schedule member of the Senior Executive Serv-
under this subpart, or a similar sched- ice, under 5 CFR 359.705.
ule under 38 U.S.C. 7455. A pay schedule Special rate means a rate of pay with-
applies to or covers a defined category in a special rate schedule established
of employees based on established cov- under this subpart.

erage conditions (e.g., official work- Special rate schedule means a pay
site, occupation). A pay schedule is schedule established under this subpart
375
530.303 5 CFR Ch. I (1116 Edition)
to provide higher rates of pay for speci- The coverage conditions for a special
fied categories of GS positions or em- rate schedule may be based on occupa-
ployees at one or more grades. An in- tion, grade, employing agency, geo-
creased or decreased special rate sched- graphic location of official worksite, or
ule refers to an increase or decrease in other factors OPM may determine to
one or more rate ranges within that be appropriate. An agency determina-
schedule. tion as to whether an employee meets
Special rate supplement means the por- the coverage conditions for a special
tion of a special rate paid above an em- rate schedule must be based on the em-
ployees GS rate. However, for a law ployees position of record and official
enforcement officer receiving an LEO worksite. An agency also may be re-
special base rate who is also entitled to quired to consider other employee-spe-
a special rate, the special rate supple- cific factors established by OPM to de-
ment equals the portion of the special termine special rate coverage, such as
rate paid above the officers LEO spe- special qualifications or certifications.
cial base rate. When a special rate
(c) An agency must pay the applica-
schedule covers both LEO positions and
ble special rate to any employee who
other positions, the value of the special
meets the coverage conditions estab-
rate supplement will be less for law en-
lished by OPM with respect to a special
forcement officers receiving an LEO
special base rate (since that rate is rate schedule unless an authorized
higher than the corresponding GS agency official determines that a cat-
rate). The payable amount of a special egory of employees of the agency will
rate supplement is subject to the Exec- not be covered by a proposed or exist-
utive Schedule level IV limitation on ing special rate schedule, subject to the
special rates, as provided in 530.304(a). following requirements:
(1) An authorized agency official may
[70 FR 31287, May 31, 2005, as amended at 73 determine that a category of employ-
FR 66151, Nov. 7, 2008]
ees of the agency will not be covered by
530.303 Coverage. a special rate request or a proposed
new special rate schedule. The official
(a) Under 5 U.S.C. 5305, OPM may es-
must provide written notice to OPM
tablish special rates for employees paid
that identifies the specific category or
under a statutory pay system (as de-
categories of employees who will not
fined in 5 U.S.C. 5302(1)) or any other
be covered by the special rate schedule.
pay system established by or under
Federal statute for civilian positions in The notice must be received by OPM
the executive branch. Special rates before the effective date of the new
apply only to GS employees unless the special rate schedule.
approved schedule coverage criteria (2) An authorized agency official may
specifically state otherwise. OPM will remove a category of employees of the
establish special rate schedules cov- agency from coverage under an exist-
ering employees under a non-GS pay ing special rate schedule. The official
system only at the request of the agen- must provide written notice to OPM
cy responsible for administering that that identifies the specific category or
system. For employees covered by a categories of employees who will not
non-GS pay system, the responsible be covered by the special rate schedule.
agency is subject to the requirements The loss of coverage under a special
in 5 U.S.C. 5305. To the extent the stat- rate schedule will become effective on
utory or regulatory provisions gov- the first day of the first pay period be-
erning the non-GS pay system differ ginning on or after the date of the no-
from the regulatory provisions of this tice to OPM.
subpart, the responsible agency must (d) An employee covered by a special
follow policies that are consistent as rate schedule is not entitled to a spe-
possible with this subpart. cial rate for any purpose with respect
(b) An employees coverage under a to any period during which the em-
special rate schedule is subject to the ployee is entitled to a higher rate of
coverage conditions established by basic pay under any other legal author-
OPM for that schedule, except as pro- ity. For example, an employee is not
vided in paragraph (c) of this section. entitled to a special rate if he or she is
376
entitled to a higher locality rate or a age to all GS rates within that range,
retained rate. except that an alternate method may
be used
530.304 Establishing or increasing (1) For grades GS1 and GS2, where
special rates. within-grade increases vary through-
(a) OPM may increase the minimum out the range; and
rates of pay otherwise payable to a cat- (2) In the nonforeign areas listed in 5
egory of employees in one or more CFR 591.205 for special rate schedules
areas or locations, grades or levels, oc- established before January 1, 2012.
cupational groups, series, classes, or (d) If OPM establishes a special rate
subdivisions thereof, when it is nec- schedule that covers only law enforce-
essary to address existing or likely sig- ment officers, OPM may compute the
nificant recruitment or retention dif- special rate supplement for grades GS
ficulties. OPM will consider the cir- 3 through 10 as a fixed percentage of
cumstances listed in paragraph (b) of LEO special base rates instead of GS
this section and the factors listed in rates. With respect to such a schedule,
530.306 when evaluating the need for references to GS rates in 530.307 are
special rates. When OPM establishes a deemed to be references to LEO special
minimum special rate under this au- base rates.
thority, corresponding increases also (e) Using its authority in section
may be made in one or more of the re- 1918(a)(1) of the Non-Foreign Area Re-
maining rates of the affected grade or tirement Equity Assurance Act of 2009
level. For any given grade, a minimum in combination with its authority
special rate may not exceed the max- under 5 U.S.C. 5305, OPM may establish
imum rate of basic pay for the rate a separate special rate schedule for a
range (excluding any locality rate, category of employees who are in GS
other special rate, or similar payment positions covered by a nonforeign area
under other legal authority) by more special rate schedule in effect on Janu-
than 30 percent. A special rate may not ary 1, 2012, and who are employed in a
exceed the rate for level IV of the Ex- nonforeign area before an OPM-speci-
ecutive Schedule. fied effective date. Such a separate
(b) The circumstances considered by schedule may be established if the ex-
OPM in evaluating the need for special isting special rate schedule is being re-
rates are the following: duced. An employees coverage under
(1) Rates of pay offered by non-Fed- the separate special rate schedule is
eral employers which are significantly contingent on the employee being con-
higher than those payable by the Gov- tinuously employed in a covered GS po-
ernment within the area, location, oc- sition in the nonforeign area after the
cupational group, or other category of OPM-specified effective date. Such a
positions under GS pay system; separate special rate schedule must be
(2) The remoteness of the area or lo- designed to provide temporary pay pro-
cation involved; tection and be phased out over time
(3) The undesirability of the working until all affected employees are cov-
conditions or the nature of the work ered under the pay schedule that would
involved (including exposure to toxic otherwise apply to the category of em-
substances or other occupational haz- ployees in question.
ards); [70 FR 31287, May 31, 2005, as amended at 73
(4) Locality pay authorized under 5 FR 66151, Nov. 7, 2008; 76 FR 68633, Nov. 7,
U.S.C. 5304 for the area involved; 2011]
(5) A nonforeign area cost-of-living
allowance authorized under 5 U.S.C. 530.305 Agency requests for new or
5941(a)(1) for the area involved; or increased special rates.
(6) Any other circumstances OPM (a) An agency may request that a
considers appropriate. special rate schedule be established or
(c) In setting the level of special increased or that its employees be cov-
rates within a rate range for a category ered by an existing special rate sched-
of employees, OPM will compute the ule at any time. An authorized agency
special rate supplement by adding a official in the agency headquarters of-
fixed dollar amount or a fixed percent- fice must submit to OPM any request
377
530.306 5 CFR Ch. I (1116 Edition)
to establish or increase special rates ment, relocation, and retention incen-

for a category of agency employees. tives under 5 CFR part 575;
The request must include a certifi- (7) The degree to which an agency
cation by the authorized agency offi- has considered relevant non-pay solu-
cial that the requested special rates tions to staffing problems, such as con-
are necessary to ensure adequate staff- ducting an aggressive recruiting pro-
ing levels to accomplish the agencys gram, using appropriate appointment
mission. authorities, redesigning jobs, estab-
(b) The authorized agency official is lishing training programs, and improv-
responsible for submitting complete ing working conditions;
supporting data for any request for new (8) The effect of the staffing problem
or higher special rates. OPM may re- on the agencys mission;
quire that the supporting data include (9) The level of non-Federal rates
a survey of prevailing non-Federal pay paid for comparable positions. Data on
rates in the relevant labor market. non-Federal salary rates may be sup-
(c) OPM may coordinate an agency plemented, if appropriate, by data on
special rate request with other agen- Federal salary rates for comparable po-
cies that have similar categories of em- sitions established under a non-GS pay
ployees. OPM may designate a lead system; and
agency to assist in coordinating the (10) The level of any locality pay au-
collection of relevant data. Each af- thorized under 5 U.S.C. 5304 and any
fected agency is responsible for submit- nonforeign area cost-of-living allow-
ting complete supporting data upon re- ance authorized under 5 U.S.C.
quest to OPM or the lead agency, as ap- 5941(a)(1) for the area involved.
propriate, unless the agency deter- (b) In determining the level at which
mines that a category of its employees to set special rates, OPM may consider
will not be covered by the proposed the following factors:
special rate schedule, as provided in (1) The pay levels that, in OPMs
530.303(c). judgment, are necessary to recruit or
retain an adequate number of qualified
530.306 Evaluating agency requests
for new or increased special rates. employees based on OPMs findings
with respect to the factors set forth in
(a) In evaluating agency requests for paragraph (a) of this section;
new or increased special rates, OPM (2) The dollar costs that will be in-
may consider the following factors: curred if special rates are not author-
(1) The number of existing vacant po- ized;
sitions and the length of time they (3) The level of pay for comparable
have been vacant; positions; and
(2) The number of employees who
(4) The need to provide for a reason-
have quit (i.e., voluntarily left Federal
able progression in pay from lower
service), including, when available, a
grade levels to higher grade levels to
subcount of the number of employees
avoid pay alignment problems (e.g.,
who quit to take a comparable position
such as might result from applying the
offering higher pay;
two-step promotion rule in 5 U.S.C.
(3) Evidence to support a conclusion
5334(b)).
that recruitment or retention problems
(c) No one factor or combination of
likely will develop (if such problems do
factors specified in paragraph (a) or (b)
not already exist) or will worsen;
of this section requires OPM to estab-
(4) The number of vacancies an agen-
lish or increase special rates or to set
cy tried to fill, compared to the num-
special rates at any given level.
ber of hires and offers made;
(5) The nature of the existing labor [70 FR 31287, May 31, 2005, as amended at 76
market; FR 68634, Nov. 7, 2011]
(6) The degree to which an agency
has considered and used other available 530.307 OPM review and adjustment
pay flexibilities to alleviate staffing of special rate schedules.
problems, including the superior quali- (a) OPM may review an established
fications and special needs pay-setting special rate schedule at any time to de-
authority in 5 CFR 531.212 and recruit- termine whether that schedule should
378
be increased, decreased, or discon- rate of basic pay, the schedule or rate

tinued, taking into account the cir- range (as applicable) will be automati-
cumstances listed in 530.304(b) and the cally discontinued.
factors listed in 530.306 that led to es- (f) OPM may change the established
tablishing the schedule. An authorized conditions for coverage under a special
agency official may request that OPM rate schedule at any time based on a
conduct such a review of one or more reevaluation of the circumstances and
special rate schedules. factors that led to establishing the
(b) OPM may designate lead agencies schedule. Expansion of coverage is
to assist in the review of designated equivalent to establishing a special
special rate schedules and to coordi- rate schedule for a category of affected
nate the collection of relevant data. employees. Reduction of coverage is
Each affected agency is responsible for the equivalent of discontinuing a spe-
submitting complete supporting data cial rate schedule for a category of af-
upon request to OPM or the lead agen- fected employees.
cy, as appropriate. (g) When a special rate schedule is
(c) OPM will adjust a special rate adjusted or discontinued, or when there
schedule by determining the amount of is a change in a schedules coverage
the special rate supplement to be paid criteria, the rate of pay for affected
on top of the current GS rate for each employees must be set as provided in
rate range within the schedule. OPM 530.321 through 530.323.
will determine the extent to which spe-
cial rate supplements are to be ad- 530.308 Treatment of special rate as
basic pay.
justed (increased or decreased), if at
all, and when the special rate supple- Except as otherwise specifically pro-
ments are to be adjusted. As provided vided under other legal authority, a
in 5 U.S.C. 5305(d), special rate schedule special rate is considered a rate of
adjustments made by OPM have the basic pay only for the following pur-
force and effect of statute. poses:
(d)(1) For special rate schedules com- (a) The purposes for which a locality
puted by applying a fixed-percentage rate is considered to be a rate of basic
supplement on top of each GS rate pay in computing other payments or
within a rate range, OPM may require benefits to the extent provided by 5
that a change in the underlying GS CFR 531.610, except as otherwise pro-
rate automatically results in an ad- vided in paragraphs (b) and (c) of this
justed special rate schedule, unless section;
OPM determines that an adjustment in (b) Computation of foreign area post
the supplement percentage is appro- differentials under 5 U.S.C. 5925(a) and
priate for one or more special rate danger pay allowances under 5 U.S.C.
schedules. 5928; and
(2) For special rate schedules com- (c) Application of pay administration
puted by applying a fixed-dollar supple- provisions for prevailing rate employ-
ment on top of each GS rate within a ees which consider rates of basic pay
rate range, OPM may require that spe- under the GS pay system in setting pay
cial rate supplements generally be ad- (except as otherwise provided in 5 CFR
justed to reflect the increase in GS part 532), subject to the requirement
rates, unless OPM determines that a that, if the employees actual special
different adjustment is appropriate for rate would not apply at the official
one or more special rate schedules. worksite for the prevailing rate posi-
(e) If OPM determines that a special tion, a special rate may be used only if
rate schedule, or a rate range within a it is a corresponding special rate on a
special rate schedule, is no longer special rate schedule that would cover
needed to ensure satisfactory recruit- the employee if his or her GS position
ment or retention of qualified employ- of record were located at the same offi-
ees, OPM may discontinue the schedule cial worksite as the prevailing rate po-
or rate range. Consistent with sition, consistent with the geographic
conversion rule in 5 CFR 531.205.
530.303(d), if all employees and posi-

tions covered by a special rate schedule [70 FR 31287, May 31, 2005, as amended at 76
or rate range are entitled to a higher FR 68634, Nov. 7, 2011]
379
530.309 5 CFR Ch. I (1116 Edition)
530.309 Miscellaneous provisions. order of precedence for processing si-

(a) A special rate may be paid only multaneous pay actions). The rate(s) of
for those hours for which an employee pay resulting from these conversion
is in a pay status. rules are considered the employees ex-
(b) A pay increase caused by an em- isting rate(s) of pay before processing
ployee becoming entitled to a new or the next simultaneous pay action in
higher special rate supplement is not the order of precedence.
an equivalent increase in pay within
the meaning of 5 U.S.C. 5335. (See 5 530.322 Setting pay when a special
CFR 531.407(c).) rate schedule is newly established
or increased.
(c) A special rate is included in an
employees total remuneration, as de- (a) General rule. When an employee
fined in 5 CFR 551.511(b), and straight holds a position that becomes covered
time rate of pay, as defined in 5 CFR by a newly established special rate
551.512(b), for the purpose of overtime schedule (including a schedule for
pay computations under the Fair Labor which coverage is expanded) or in-
Standards Act of 1938, as amended. creased special rate schedule (including
(d) Consistent with 530.308, the re- an increased special rate range within
duction or termination of an employ- a schedule), the agency must set the
ees special rate supplement in accord- employees special rate at the step (or
ance with the requirements of this sub- relative position in range for a GM em-
part is not an adverse action under 5 ployee) of the grade on the new special
CFR part 752, subpart D, or an action rate schedule that corresponds to the
under 5 CFR 930.211. employees existing numerical step (or
[70 FR 31287, May 31, 2005, as amended at 73 relative position in range for a GM em-
FR 66151, Nov. 7, 2008] ployee) as in effect immediately before
the new special rate schedule takes ef-
SETTING AN EMPLOYEES RATE OF PAY fect, except as otherwise provided in
530.321 General. this section. The corresponding special
rate is determined by adding the appli-
(a) This section and 530.322 and cable special rate supplement on top of
530.323 provide conversion rules for set- the employees GS rate, subject to the
ting an employees pay when a special limitation that no special rate may ex-
rate schedule is established, increased, ceed the rate for level IV of the Execu-
decreased, or discontinued, or when an tive Schedule. For an employee receiv-
employees coverage under an existing ing an LEO special base rate, add the
special rate schedule is affected by a applicable special rate supplement to
change in coverage criteria. These con- the GS rate for the employees grade
version rules do not apply to changes
and step, except as otherwise provided
in an employees special rate entitle-
under 530.304(d).
ments based on a change in the em-
ployees position of record or official (b) Employee entitled to a higher rate of
worksite. Pay-setting rules for other basic pay. As provided in 530.303(d), if
personnel actions affecting special rate an employee meeting the coverage con-
employees are provided in 5 CFR parts ditions for a newly established or in-
531 and 536. For example, if an em- creased special rate schedule is enti-
ployee becomes covered by a special tled to a higher rate of basic pay under
rate schedule as a result of a change in other legal authority, the employee
the employees official worksite, the must be paid at that higher rate.
geographic conversion rule in 5 CFR (c) Employee receiving a retained rate.
531.205 must be used to set the employ- When an employee is receiving a re-
ees rate(s) of basic pay in the new lo- tained rate immediately before the em-
cation before considering any other si- ployees position is covered by a newly
multaneous pay action (other than a established or increased special rate
general pay adjustment). schedule, the agency must determine
(b) The conversion rules in 530.322 the employees rate of pay consistent
and 530.323 are considered general pay with the requirements in 5 CFR part
adjustments for the purpose of apply- 536, subpart C (or 5 CFR 359.705 for a
ing 5 CFR 531.206 (dealing with the former member of the Senior Executive
380
Service receiving a retained rate under PART 531PAY UNDER THE

that section). GENERAL SCHEDULE
FR 66151, Nov. 7, 2008] Subpart A [Reserved]
530.323 Setting pay when a special Subpart BDetermining Rate of Basic Pay
rate is discontinued or decreased. GENERAL PROVISIONS
(a) General. This section applies when Sec.
a special rate applicable to a position 531.201 Purpose.
is discontinued or decreased because 531.202 Coverage.
of 531.203 Definitions.
531.204 Entitlement to other rates of pay.
(1) A reduction or termination of the 531.205 Converting pay upon change in loca-
rates of the special rate schedule (or of tion of employees official worksite.
rates of a rate range within a sched- 531.206 Order of processing simultaneous
ule); or pay actions.
(2) The reduction in the scope of cov- 531.207 Applying annual pay adjustments.
erage of the special rate schedule. SETTING PAY WHEN APPOINTMENT OR POSITION
(b) Employee entitled to pay retention. CHANGES
When a special rate applicable to a po- 531.211 Setting pay for a newly appointed
sition is discontinued or decreased, and employee.
an employee holding the position is en- 531.212 Superior qualifications and special
titled to pay retention under 5 CFR needs pay-setting authority.
part 536 as a result, the employees rate 531.213 Setting pay upon change in position
without a change in grade.
of pay must be set consistent with the 531.214 Setting pay upon promotion.
requirements in 5 CFR part 536, subpart 531.215 Setting pay upon demotion.
C. 531.216 Setting pay when an employee
(c) Employee not entitled to pay reten- moves from a Department of Defense or
tion. When a special rate applicable to Coast Guard nonappropriated fund in-
strumentality.
a position is discontinued or decreased, 531.217 Special conversion rules for certain
and an employee holding the position non-GS employees.
is not entitled to pay retention under 5
CFR part 536, the employees rate of USING A HIGHEST PREVIOUS RATE UNDER THE
MAXIMUM PAYABLE RATE RULE
pay is set in the highest applicable rate
range at the grade and step (or relative 531.221 Maximum payable rate rule.
position in range for a GM employee) 531.222 Rates of basic pay that may be used
as the highest previous rate.
that corresponds to the grade and step 531.223 Rates of basic pay that may not be
(or relative position in range for a GM used as the highest previous rate.
employee) for the employees existing
special rate (as in effect immediately SPECIAL RULES FOR GM EMPLOYEES
before the schedule change). 531.241 Retaining and losing GM status.
(d) Employee receiving a retained rate. 531.242 Setting pay upon loss of GM status.
When a special rate applicable to a po- 531.243 Promotion of a GM employee.
531.244 Adjusting a GM employees rate at
sition is discontinued or decreased, and the time of an annual pay adjustment.
the employee holding the position is 531.245 Computing locality rates and special
receiving a retained rate immediately rates for GM employees.
before the schedule change, the em- 531.246 Within-grade increases for GM em-
ployees rate of pay must be set con- ployees.
531.247 Maximum payable rate rule for GM
sistent with the requirements in 5 CFR
employees.
part 536, subpart C (or 5 CFR 359.705 for
a former member of the Senior Execu- Subpart C [Reserved]
tive Service receiving a retained rate
under that section). Subpart DWithin-Grade Increases
[70 FR 31287, May 31, 2005, as amended at 73 531.401 Principal authorities.
FR 66152, Nov. 7, 2008] 531.402 Employee coverage.

531.404 Earning within-grade increase.
381
531.201 5 CFR Ch. I (1116 Edition)
531.405 Waiting periods for within-grade in- Subpart A [Reserved]
crease.
531.406 Creditable service.
531.407 Equivalent increase determinations. Subpart BDetermining Rate of
531.408 [Reserved] Basic Pay
531.409 Acceptable level of competence de-
terminations.
531.410 Reconsideration of a negative deter-
otherwise noted.
mination.
531.411 Continuing evaluation after with-
holding a within-grade increase.
GENERAL PROVISIONS
531.412 Effective date of within-grade in-
crease.
531.201 Purpose.
531.413 Reports and evaluation of within- This subpart contains regulations of
grade increase authority. the Office of Personnel Management
531.414 Interim within-grade increase. (OPM) implementing 5 U.S.C 5332, 5333,
and 5334, which deal with setting and
Subpart EQuality Step Increases
adjusting rates of basic pay for General
531.501 Applicability. Schedule (GS) employees. These regu-
531.502 Definitions. lations are supplemented by regula-
531.503 Purpose of quality step increases. tions on GS within-grade increases in
531.504 Level of performance required for subpart D of this part; GS quality step
quality step increase. increases in subpart E of this part; lo-
531.505 Restrictions on granting quality
cality rates in subpart F of this part;
step increases.
531.506 Effective date of a quality step in- special rates in 5 CFR part 530, subpart
crease. C; and grade and pay retention in 5
531.507 Agency responsibilities. CFR part 536.
531.508 Evaluation of quality step increase
authority. 531.202 Coverage.
This subpart covers employees who
Subpart FLocality-Based Comparability occupy positions classified and paid
Payments under the GS classification and pay
531.601 Purpose. system, as provided in 5 U.S.C. 5102 and
531.602 Definitions. 5331 or other applicable laws. Law en-
531.603 Locality pay areas. forcement officers (LEOs) receiving
531.604 Determining an employees locality LEO special base rates are covered by
rate. the GS classification and pay system,
531.605 Determining an employees official but receive higher base rates of pay in
worksite.
531.606 Maximum limits on locality rates.
lieu of GS rates at grades GS3 through
531.607 Computing hourly, daily, weekly and GS10. This subpart also covers GS em-
biweekly locality rates. ployees who receive special rates under
531.608 Relationship of locality rates to 5 U.S.C. 5305 and 5 CFR part 530, sub-
other pay rates. part C.
531.609 Adjusting or terminating locality
rates. 531.203 Definitions.
531.610 Treatment of locality rate as basic
pay.
In this subpart:
531.611 Miscellaneous provisions. Agency means an Executive agency as
defined in 5 U.S.C. 105 or an agency in
Subpart G [Reserved] the legislative branch with employees
covered by this subpart. To the extent
AUTHORITY: 5 U.S.C. 5115, 5307, and 5338; sec. that the regulations in this subpart re-
4 of Public Law 10389, 107 Stat. 981; and E.O. late to non-GS service in the Federal
12748, 56 FR 4521, 3 CFR, 1991 Comp., p. 316; Government, agency includes any other
Subpart B also issued under 5 U.S.C. 5303(g), agency in the Federal Government.
5305, 5333, 5334(a) and (b), and 7701(b)(2); Sub- Demotion means a change of an em-
part D also issued under 5 U.S.C. 5335 and
ployee, while continuously employed,
7701(b)(2); Subpart E also issued under 5
U.S.C. 5336; Subpart F also issued under 5 from one GS grade to a lower GS grade,
U.S.C. 5304, 5305, and 5941(a); E.O. 12883, 58 FR with or without a reduction in pay.
63281, 3 CFR, 1993 Comp., p. 682; and E.O. Employee means an employee as de-
13106, 63 FR 68151, 3 CFR, 1998 Comp., p. 224. fined in 5 U.S.C. 2105 who is covered by
382
this subpart. For the purpose of deter- ployees). Law enforcement officers
mining eligibility under the superior (LEOs) receiving LEO special base
qualifications and special needs pay- rates are covered by the GS classifica-
setting authority in 531.212 and apply- tion and pay system but receive higher
ing the maximum payable rate provi- base rates of pay in lieu of GS rates at
sions in 531.216 and 531.221 (which grades GS3 through GS10.
consider rates of pay received during GM employee means a GS employee
non-GS service in the Federal Govern- who was formerly covered by the Per-
ment), employee also includes any em- formance Management and Recogni-
ployee as defined in 5 U.S.C. 2105 and tion System under 5 U.S.C. chapter 54
(1) An individual employed by the on October 31, 1993 (and therefore be-
U.S. Postal Service or the Postal Rate came covered on November 1, 1993, by
Commission who would be considered section 4 of Pub. L. 10389, the Perform-
an employee under 5 U.S.C. 2105 but for ance Management and Recognition
the exclusion in section 2105(e); and System Termination Act of 1993), and
(2) An individual employed by a De- who continues thereafter to occupy a
partment of Defense or Coast Guard position as a supervisor or manage-
nonappropriated fund instrumentality ment official (as defined in 5 U.S.C.
(as described in 5 U.S.C. 2105(c)) for 7103(a)(10) and (11)) in the same grade of
service covered by 531.216 (for the pur- the General Schedule (GS13, 14, or 15)
pose of applying that section and and in the same agency without a
531.211 and 531.212). break in service of more than 3 days.
Existing rate means the rate received (See 531.241.) Any reference to employ-
immediately before a pay action takes ees, grades, positions, or rates of basic
effect, after processing a general pay pay under the General Schedule in-
adjustment and any other simulta- cludes GM employees.
neous pay action that is higher in the GS rate means a rate of basic pay
order of precedence under 531.206. For within the General Schedule, excluding
example, the existing rate immediately any LEO special base rate and addi-
before a promotion action must reflect tional pay of any kind such as locality
any geographic conversion under payments or special rate supplements.
531.205 and any simultaneous within- A rate payable to a GM employee is
grade increase or quality step increase. considered a GS rate even though the
Federal Government means all entities rate may fall between GS step rates.
of the Government of the United Highest applicable rate range means
States, including the U.S. Postal Serv- the rate range applicable to a GS em-
ice and the Postal Rate Commission. ployee based on a given position of
The District of Columbia is deemed to record and official worksite that pro-
be part of the Federal Government vides the highest rates of basic pay, ex-
with respect to employees of the gov- cluding any retained rates. For exam-
ernment of the District of Columbia ple, a rate range of special rates may
(DC) who were first employed by that exceed an applicable locality rate
government before October 1, 1987. A range. In certain circumstances, the
Department of Defense or Coast Guard highest applicable rate range may con-
nonappropriated fund instrumentality sist of two types of pay rates from dif-
(as described in 5 U.S.C. 2105(c)) is not ferent pay schedulese.g., a range
considered part of the Federal Govern- where special rates (based on a fixed
ment except for the purpose of apply- dollar supplement) are higher in the
ing 531.211 and 531.212 to employees lower portion of the range and locality
covered by 531.216 upon employment rates are higher in the higher portion
in a GS position. of the range.
General Schedule or GS means the Law enforcement officer or LEO has
classification and pay system estab- the meaning given that term in 5 CFR
lished under 5 U.S.C. chapter 51 and 550.103.
subchapter III of chapter 53. It also re- LEO special base rate means a special
fers to the pay schedule of GS rates es- base rate established for GS law en-
tablished under 5 U.S.C. 5332, as ad- forcement officers at grades GS3

justed under 5 U.S.C. 5303 or other law through GS10 under section 403 of the
(including GS rates payable to GM em- Federal Employees Pay Comparability
383
531.203 5 CFR Ch. I (1116 Edition)
Act of 1990 (section 529 of Pub. L. 101 employees separation before he or she
509, November 5, 1990, as amended) is required to report for duty in the
which is used in lieu of a GS rate. new position, the position of record in
Locality payment means a locality- effect immediately before the position
based comparability payment payable change is deemed to remain the posi-
to GS employees under 5 U.S.C. 5304 tion of record through the date of sepa-
and 5 CFR part 531, subpart F. ration.
Locality rate means a GS rate or an Promotion means a GS employees
LEO special base rate, if applicable, movement from one GS grade to a
plus any applicable locality payment. higher GS grade while continuously
Official worksite means the official lo- employed (including such a movement
cation of the employees position of in conjunction with a transfer).
record, as determined under 5 CFR Rate of basic pay means the rate of
531.605. pay fixed by law or administrative ac-
OPM means the Office of Personnel tion for the position held by a GS em-
Management. ployee before any deductions, including
Payable rate means the highest rate a GS rate, an LEO special base rate, a
of basic pay to which an employee is special rate, a locality rate, and a re-
entitled based on the employees posi- tained rate, but exclusive of additional
tion of record, official worksite, and pay of any other kind. For the purpose
step (or relative position in range for a of applying the maximum payable rate
GM employee) or, if applicable, a re- rules in 531.216 and 531.221 using a
tained rate. rate under a non-GS pay system as an
Pay schedule means a set of rate employees highest previous rate, rate
ranges established for GS employees of basic pay means a rate of pay under
under a single authorityi.e., the Gen- other legal authority which is equiva-
eral Schedule, an LEO special base rate lent to a rate of basic pay for GS em-
schedule (for grades GS3 through 10), a ployees, as described in this definition,
locality rate schedule based on GS excluding a rate under 531.223. (See
rates, a locality rate schedule based on also 5 CFR 530.308, 531.610, and 536.307.)
LEO special base rates (for grades GS Rate range or range means a range of
3 through 10), or a special rate sched- rates of basic pay for a grade within an
ule. A pay schedule applies to or covers established pay schedule, excluding
a defined category of employees based any retained rate. A rate range may
on established coverage conditions consist of GS rates, LEO special base
(e.g., official worksite, occupation). A rates, locality rates, special rates, or,
pay schedule is considered to apply to for non-GS employees, similar rates
or cover an employee who meets the es- under other legal authority.
tablished coverage conditions even Reassignment means a change of an
when a rate under that schedule is not employee, while serving continuously
currently payable to the employee be- in the same agency, from one position
cause of a higher pay entitlement to another without promotion or demo-
under another pay schedule. tion.
Position of record means an employ- Reemployment means employment, in-
ees official position (defined by grade, cluding reinstatement or another type
occupational series, employing agency, of appointment, after a break in serv-
LEO status, and any other condition ice of at least 1 full workday.
that determines coverage under a pay Retained rate means a rate above the
schedule (other than official work- maximum rate of the rate range appli-
site)), as documented on the employ- cable to a GS employee which is pay-
ees most recent Notification of Per- able under 5 CFR part 536 or, for a
sonnel Action (Standard Form 50 or former member of the Senior Executive
equivalent) and current position de- Service, under 5 CFR 359.705.
scription. A position to which an em- Special rate means a rate of pay with-
ployee is temporarily detailed is not in a special rate schedule established
documented as a position of record. For under 5 CFR part 530, subpart C, or a
an employee whose change in official similar rate for GS employees estab-

position is followed within 3 workdays lished under other legal authority (e.g.,
by a reduction in force resulting in the 38 U.S.C. 7455). The term special rate
384
does not include an LEO special base 531.204 Entitlement to other rates of
rate or an adjusted rate including mar- pay.
ket pay under 38 U.S.C. 7431(c). (a) A law enforcement officer is enti-
Special rate schedule means a pay tled to LEO special base rates in lieu of
schedule established under 5 CFR part GS rates at grades GS3 through GS10.
530, subpart C, to provide higher rates A law enforcement officer is entitled to
of pay for specified categories of GS po- the LEO special base rate that cor-
sitions or employees at one or more responds to his or her grade and step. If
grades or levels or a similar schedule an employee loses LEO status, the em-
established for GS employees under ployee is entitled to the GS rate for his
other legal authority (e.g., 38 U.S.C. or her grade and step unless a higher
7455). rate is set under the maximum payable
Special rate supplement means the por- rate rule in 531.221 or under the pay
retention rules in 5 CFR part 536, as ap-
tion of a special rate paid above an em-
plicable. LEO special base rates are
ployees GS rate. However, for a law used in computing locality rates, as
enforcement officer receiving an LEO provided in subpart F of this part. A
special base rate who is also entitled to law enforcement officer may be enti-
a special rate, the special rate supple- tled to a special rate that is computed
ment equals the portion of the special using the underlying GS rate for the
rate paid above the officers LEO spe- LEOs grade and step.
cial base rate. When a special rate (b) When an employees GS rate or
schedule covers both LEO positions and LEO special base rate is determined
other positions, the value of the special under the rules of this subpart, the
rate supplement will be less for law en- agency must determine any other rate
forcement officers receiving an LEO of basic pay to which the employee is
special base rate (since that rate is entitled, including a locality rate
higher than the corresponding GS under subpart F of this part and a spe-
rate). The payable amount of a special cial rate under 5 CFR part 530, subpart
rate supplement is subject to the Exec- C, or other legal authority (e.g., 38
utive Schedule level IV limitation on U.S.C. 7455). The employee is entitled
to the highest applicable rate of basic
special rates, as provided in 5 CFR
pay as his or her payable rate. When an
530.304(a).
employees special rate is surpassed by
Temporary promotion means a time- a higher locality rate, his or her enti-
limited promotion with a not-to-exceed tlement to a special rate is terminated,
date or a specified term. as provided in 530.303(d).
Transfer means a change of an em- (c) When application of the rules in
ployee, without a break in service of 1 this subpart results in setting an em-
full workday, from one branch of the ployees payable rate in the highest ap-
Federal Government (executive, legis- plicable pay schedule (e.g., a locality
lative, or judicial) to another or from rate schedule or a special rate sched-
one agency to another. ule), the agency must determine the
Where different pay schedules apply employees underlying GS rate or LEO
means, in the context of applying the special base rate, as applicable, based
geographic conversion rule, that an on that payable rate (i.e., by finding
employees official worksite is changed the corresponding underlying rate with
to a new location that would cause the the same grade and step (or relative po-
employee to lose or gain coverage sition in range for a GM employee) as
the payable rate).
under a location-based pay schedule
(i.e., locality rate schedule or special [70 FR 31291, May 31, 2005, as amended at 73
rate schedule) if the employee were to FR 66152, Nov. 7, 2008]
remain in the same position of record.
531.205 Converting pay upon change
Within-grade increase has the meaning in location of employees official
given that term in 531.403. worksite.
[70 FR 31291, May 31, 2005, as amended at 73 When an employees official worksite
FR 66152, Nov. 7, 2008; 73 FR 76847, Dec. 18, is changed to a new location where dif-
2008] ferent pay schedules apply, the agency
385
531.206 5 CFR Ch. I (1116 Edition)
must convert the employees rate(s) of (e) Except as otherwise provided in

basic pay to the applicable pay sched- paragraphs (a) through (d) of this sec-
ule(s) in the new location before proc- tion or other regulation, process indi-
essing any simultaneous pay action vidual pay actions that take effect at
(other than a general pay adjustment, the same time in the order that gives
as provided in 531.206). The agency the employee the maximum benefit.
must first set the employees rate(s) of
basic pay in the applicable pay sched- 531.207 Applying annual pay adjust-
ule(s) in the new location based on his ments.
or her position of record (including (a) Except as otherwise provided in
grade) and step (or a GM employees this section, on the effective date of a
GS rate) immediately before the GS pay adjustment under 5 U.S.C. 5303
change in the employees official work- or similar authority, an agency ini-
site. The resulting rate must be used as tially must set the GS rate of a GS em-
the existing rate in processing the next ployee at the new rate of the adjusted
simultaneous pay action in the order of General Schedule corresponding to the
precedence, using the applicable pay employees grade and step in effect im-
schedules in the new location. In con- mediately before the effective date of
junction with any simultaneous pay the pay adjustment. Any simultaneous
actions, the employees rate(s) of basic pay actions must be processed after the
pay will then be set based on the em- pay adjustment, as provided in 531.206.
ployees new position of record and new (b) For employees receiving a re-
official worksite. tained rate immediately before the ef-
[70 FR 31291, May 31, 2005, as amended at 73 fective date of a GS annual pay adjust-
FR 66152, Nov. 7, 2008] ment, the agency must adjust the em-
ployees rate of basic pay under the
531.206 Order of processing simulta- rules in 5 CFR 536.305 (or under 5 CFR
neous pay actions. 359.705 for former members of the Sen-
When multiple pay actions with the ior Executive Service receiving a re-
same effective date affect an employ- tained rate under that section).
ees rate of basic pay, the actions will (c) For GM employees, the agency
be processed in the following order: must follow the rules in 531.244.
(a) Process general pay adjustments
before any individual pay action that SETTING PAY WHEN APPOINTMENT OR
takes effect at the same time. General POSITION CHANGES
pay adjustments include an annual ad-
justment in the General Schedule 531.211 Setting pay for a newly ap-
pointed employee.
under 5 U.S.C. 5303; an adjustment in
LEO special base rates; an adjustment (a) First appointment. An agency must
of a locality pay percentage under sub- set the payable rate of basic pay for an
part F of this part; the establishment employee receiving his or her first ap-
or adjustment of a special rate sched- pointment (regardless of tenure) as a
ule under 5 CFR part 530, subpart C, or civilian employee of the Federal Gov-
similar legal authority (e.g., 38 U.S.C. ernment at the minimum rate of the
7455); and an adjustment of a retained highest applicable rate range for the
rate under 5 CFR 359.705(d)(1) and employees position of record, except
536.305(a)(1) based on the establishment as provided in 531.212.
or adjustment of a pay schedule. (b) Reemployment. For an employee
(b) Convert the employees rate(s) of who has previous civilian service in the
pay to reflect any change in the loca- Federal Government, an agency must
tion of the employees official work- set the payable rate of basic pay upon
site, as prescribed in 531.205 (or simi- reemployment at the minimum rate of
lar geographic conversion provision). the highest applicable rate range for
(c) Process any within-grade increase the employees position of record un-
or quality step increase to which the less
employee is entitled. (1) The employee meets the condi-
(d) Process any promotion action tions in 531.212 and an agency deter-
using the rates of pay and rate ranges mines it is appropriate to set pay under
in the sequence prescribed in 531.214. that section; or
386
(2) The employee is eligible for a (v) Employment under a provisional

higher payable rate under the max- appointment designated under 5 CFR
imum payable rate rule in 531.221 and 316.403;
the agency chooses to apply that rule. (vi) Employment under an Internship
Program appointment under
531.212 Superior qualifications and 213.3402(a) of this chapter ; or
special needs pay-setting authority. (vii) Employment as a Senior Execu-
(a) Agency authority. (1) An agency tive Service limited term appointee or
may use the superior qualifications or limited emergency appointee (as de-
special needs pay-setting authority in 5 fined in 5 U.S.C. 3132(a)(5) and (a)(6), re-
U.S.C. 5333 to set the payable rate of spectively).
basic pay for an employee above the (4) Service as an employee of a non-
minimum rate of the highest applica- appropriated fund instrumentality
ble rate range for the employees posi- (NAFI) of the Department of Defense or
tion of record. The superior qualifica- Coast Guard is not considered employ-
tions or special needs pay-setting au- ment by the Federal Government under
thority may be used for this section except for employees cov-
(i) A first appointment (regardless of ered by 531.216 upon appointment or
tenure) as a civilian employee of the reappointment (i.e., employees who
Federal Government; or move from NAFI position to GS posi-
(ii) A reappointment that is consid- tion with a break in service of 3 days or
ered a new appointment under 5 U.S.C. less and without a change in agency).
5333 because it meets the conditions Employees covered by 531.216 upon ap-
prescribed in paragraph (a)(2) and (3) of pointment or reappointment to a GS
this section. position are not eligible to have pay
set under the superior qualifications or
(2) An agency may use the superior
special needs authority, since their
qualifications and special needs pay-
NAFI employment is considered em-
setting authority for a reappointment ployment by the Federal Government.
only when the employee has had a Otherwise, NAFI employment does not
break in service of at least 90 days block application of this section.
from the last period of civilian employ-
(5) An agency may not apply an ex-
ment with the Federal Government, exception in paragraph (a)(3) of this sec-
cept as provided in paragraph (a)(3) of tion if the candidates civilian employ-
this section. ment with the Federal Government
(3) Except as provided in paragraph during the 90-day period immediately
(a)(5) of this section, an agency may preceding the appointment was in one
use the superior qualifications and spe- or more of the following types of posi-
cial needs pay-setting authority for a tions:
reappointment without requiring a 90- (i) A position to which an individual
day break in service if the candidates is appointed by the President, by and
civilian employment with the Federal with the advice and consent of the Sen-
Government during the 90-day period ate;
immediately preceding the appoint- (ii) A position in the Senior Execu-
ment was limited to one or more of the tive Service as a noncareer appointee
following: (as defined in 5 U.S.C. 3132(a)(7));
(i) A time-limited appointment in the (iii) A position excepted from the
competitive or excepted service; competitive service by reason of its
(ii) A non-permanent appointment in confidential, policy-determining, pol-
the competitive or excepted service; icy-making, or policy-advocating char-
(iii) Employment with the govern- acter;
ment of the District of Columbia (DC) (iv) A position to which an individual
when the candidate was first appointed is appointed by the President without
by the DC government on or after Oc- the advice and consent of the Senate;
tober 1, 1987; (v) A position designated as the head
(iv) An appointment as an expert or of an agency, including an agency

consultant under 5 U.S.C. 3109 and 5 headed by a collegial body composed of
CFR part 304; two or more individual members;
387
531.212 5 CFR Ch. I (1116 Edition)
(vi) A position in which the employee qualifications and special needs pay-
is expected to receive an appointment setting authority:
as the head of an agency; or (1) The level, type, or quality of the
(vii) A position to which an indi- candidates skills or competencies;
vidual is appointed as a Senior Execu- (2) The candidates existing salary,
tive Service limited term appointee or recent salary history, or salary docu-
limited emergency appointee (as de- mented in a competing job offer (tak-
fined in 5 U.S.C. 3132(a)(5) and (a)(6), re- ing into account the location where the
spectively) when the appointment must salary was or would be earned and com-
be cleared through the White House Of- paring the salary to payable rates of
fice of Presidential Personnel. basic pay in the same location);
(b) Superior qualifications or special (3) Significant disparities between
needs determination. An agency may set Federal and non-Federal salaries for
the payable rate of basic pay of a newly the skills and competencies required in
appointed employee above the min- the position to be filled;
imum rate of the grade under this sec- (4) Existing labor market conditions
tion if the candidate meets one of the and employment trends, including the
following criteria: availability and quality of candidates
(1) The candidate has superior quali- for the same or similar positions;
fications. An agency may determine (5) The success of recent efforts to re-
that a candidate has superior qualifica- cruit candidates for the same or simi-
tions based on the level, type, or qual- lar positions;
ity of the candidates skills or com- (6) Recent turnover in the same or
petencies demonstrated or obtained similar positions;
through experience and/or education, (7) The importance/criticality of the
the quality of the candidates accom- position to be filled and the effect on
plishments compared to others in the the agency if it is not filled or if there
field, or other factors that support a is a delay in filling it;
superior qualifications determination. (8) The desirability of the geographic
The candidates skills, competencies, location, duties, and/or work environ-
experience, education, and/or accom- ment associated with the position;
plishments must be relevant to the re- (9) Agency workforce needs, as docu-
quirements of the position to be filled. mented in the agencys strategic
These qualities must be significantly human capital plan; or
higher than that needed to be mini- (10) Other relevant factors.
mally required for the position and/or (d) Consideration of recruitment incen-
be of a more specialized quality com- tive. In determining whether to use the
pared to other candidates; or superior qualifications and special
(2) The candidate fills a special agen- needs pay-setting authority and the
cy need. An agency may determine level at which the employees payable
that a candidate fills a special agency rate of basic pay should be set, an
need if the type, level, or quality of agency must consider the possibility of
skills and competencies or other quali- authorizing a recruitment incentive
ties and experiences possessed by the under 5 CFR part 575, subpart A.
candidate are relevant to the require- (e) Approval and documentation re-
ments of the position and are essential quirements. (1) An agency must approve
to accomplishing an important agency each determination to use the superior
mission, goal, or program activity. A qualifications and special needs pay-
candidate also may meet the special setting authority prior to the can-
needs criteria by meeting agency work- didate entering on duty. Each deter-
force needs, as documented in the agen- mination must be made in writing and
cys strategic human capital plan. reviewed and approved by an official of
(c) Pay rate determination. An agency the agency who is at least one level
may consider one or more of the fol- higher than the employees supervisor,
lowing factors, as applicable in the unless there is no official at a higher
case at hand, to determine the step at level in the agency.

which to set an employees payable (2) An agency must document all of
rate of basic pay using the superior the following for each determination to
388
use the superior qualifications and spe- 531.214 Setting pay upon promotion.
cial needs pay-setting authority suffi-
(a) General. An agency must set an
cient to allow reconstruction of the ac-
employees payable rate of basic pay
tion taken in each case:
upon promotion following the rules in
(i) The superior qualifications of the this section, consistent with 5 U.S.C.
candidate under paragraph (b)(1) of this 5334(b). The promotion rule in 5 U.S.C.
section or the special agency need for 5334(b) and the implementing rules in
the candidates services under para- this section apply only to a GS em-
graph (b)(2) of this section which justi- ployee who is promoted from one GS
fies a higher than minimum rate; grade to a higher GS grade. Consistent
(ii) An explanation of the factor(s) with 531.206, any general pay adjust-
and supporting documentation under ment that takes effect on the same day
paragraph (c) of this section which as a promotion action must be proc-
were used to justify the rate at which essed before applying the rules in this
the employees pay is set. The written section.
documentation must explain how the (b) Geographic conversion. When an
factors directly relate to the rate ap- employees official worksite is changed
proved; and to a new location where different pay
(iii) The reasons for authorizing a schedules apply, the agency must con-
higher than minimum rate instead of vert the employee to the applicable
or in addition to a recruitment incen- pay schedule(s) and rate(s) of basic pay
tive under 5 CFR part 575, subpart A. for the new official worksite based on
(f) Ensuring compliance. An agency the employees position of record be-
must establish appropriate internal fore promotion as provided in 531.205
guidelines and evaluation procedures before processing a simultaneous pro-
to ensure compliance with the law, this motion action.
section of OPM regulations, and agency (c) Simultaneous within-grade increase.
policies. When an employee is entitled to a
within-grade increase or a quality step
FR 66152, Nov. 7, 2008; 77 FR 28222, May 11,
increase that is effective at the same
2012; 78 FR 49362, Aug. 14, 2013] time as a promotion, the agency must
process that increase before processing
531.213 Setting pay upon change in the promotion action.
position without a change in grade. (d) Promotion rule(1) General. An
For an employee who is moved lat- agency must determine an employees
erally (by transfer, reassignment, payable rate of basic pay upon pro-
motion using the standard method in
change in type of appointment, change
paragraph (d)(3) of this section or the
in official worksite, or other change in
alternate method in paragraph (d)(4) of
position) from one GS position to a dif-
this section, subject to the special rule
ferent GS position without a change in
in paragraph (d)(5) of this section for
grade or a break in service, the agency
employees receiving a retained rate be-
must determine the employees pay-
fore promotion. A determination re-
able rate of basic pay and any under-
garding whether the alternate method
lying rate(s)s of basic pay based on the
is used in place of the standard method
employees new position of record, new
depends on the pay schedules that
official worksite, and the step (or rel-
apply to an employee before and after
ative position in range for a GM em- promotion, as provided in paragraph
ployee) in effect before the position (d)(2) of this section. In this paragraph
change. If an employee is eligible to re- (d), references to an employees rate or
ceive a higher rate under the maximum range before promotion mean the
payable rate rule in 531.221, the agen- rate or range before promotion but
cy may choose to apply that rule. If an after any geographic conversion re-
employee is entitled to pay retention, quired by paragraph (b) of this section.
the agency must apply the rules in 5
(2) Determining applicable method. The
CFR part 536.
following rules govern determinations

[70 FR 31291, May 31, 2005, as amended at 73 regarding which promotion method to
FR 66152, Nov. 7, 2008] use:
389
531.214 5 CFR Ch. I (1116 Edition)
(i) Apply the standard method exclu- Step C Determine the payable (highest) rate of basic pay
for the step or rate determined in step B by ap-
sively if the employee is covered by the plying any locality payment or special rate supple-
same pay schedules before and after ment applicable to the given grade, based on the
promotion. For example, an employee employees position of record before promotion
may be covered by the General Sched- and official worksite after promotion. (If the rate
determined in step B is above the range max-
ule and the same locality rate schedule imum, use the same locality payment or special
before and after promotion. rate supplement that applies to rates within the
(ii) Apply the alternate method if the rate range.)
employee is covered by different pay Step D Identify the highest applicable rate range for the
schedules before and after promotion employees position of record after promotion and
and if the alternate method will find the lowest step rate in that range that equals
produce a higher payable rate upon or exceeds the rate determined in step C. This is
the employees payable rate of basic pay upon
promotion than the standard method. promotion. (If the rate identified in step C ex-
For example, an employee may be cov- ceeds the maximum of the rate range identified in
ered after promotion by a special rate this step, the employees payable rate is that
maximum rate, or, if the employees existing rate
schedule that did not apply to him or is higher than that maximum rate, a retained rate
her before promotion, and the alter- under 5 CFR part 536 equal to that existing rate.)
nate method will produce a higher rate.
(iii) Apply the standard method in all (ii) Example of standard method: A
other circumstances, except that an GS11, step 5, employee in Los Angeles
agency may, at its sole and exclusive is promoted to a GS12 position in Kan-
discretion, apply the alternate method sas City. In Kansas City, a special rate
for an employee covered by different schedule would apply to the employees
pay schedules before and after pro- GS11 position, but at GS12 no special
motion even though the method pro-
rate range applies; instead, just a local-
duces a lesser payable rate than the
ity rate range applies. Thus, different
standard method, but only under the
pay schedules apply to the employee in
following conditions:
(A) The agency determines it would Kansas City before and after pro-
be inappropriate to use the standard motion. The agency determines that
method based on a finding that the the standard method produces a higher
higher pay for the position before pro- rate than the alternate method because
motion is not sufficiently related to the employee is covered by a special
the knowledge and skills required for rate schedule before promotion but not
the position after promotion; and after promotion, The agency also de-
(B) The agency informs the employee termines it will not invoke the excep-
of the determination to use the alter- tion provision under paragraph
nate method before the effective date (d)(2)(iii). The agency applies the
of the promotion. standard method as follows:
(3) Standard method. (i) The standard
method of applying the promotion rule
is presented in the following table:
Step A Apply the geographic conversion rule to determine
the rates of basic pay for the GS11, step 5, po-
sition in Kansas City. The pay schedules applica-
ble to the employee in Kansas City are the Gen-
Promotion RuleStandard Method
eral Schedule, the locality rate schedule applica-
Step A If applicable, apply the geographic conversion rule ble in Kansas City, and the special rate schedule
in 531.205 to determine the employees rate(s) applicable to the employees position in Kansas
and range(s) of basic pay based on the employ- City.
ees position of record before promotion and the
new official worksite, as required by paragraph Step B Using the underlying General Schedule, increase
(b) of this section. Also, if applicable, provide any the GS11, step 5, rate by two within-grade in-
simultaneous within-grade increase or quality step creases, which produces the GS11, step 7, rate.
increase, as required by paragraph (c) of this
section. Use the resulting rate(s) of basic pay as Step C The payable (highest) rate of basic pay for GS11,
the existing rate(s) in effect immediately before step 7, is the corresponding GS11, step 7, spe-
promotion in applying steps B and C. cial rate that would be applicable to the GS11
position in Kansas City.
Step B Identify the employees existing GS rate (or LEO
special base rate) in the grade before promotion,
and increase that rate by two GS within-grade in-

creases for that grade.
390
Step D The highest applicable rate range for the GS12 is the employees alternate payable
position after promotion is the GS12 locality rate
range under the Kansas City locality rate sched- rate upon promotion. If the retained
ule. Find the lowest step rate in that range that rate is below the rate range maximum,
equals or exceeds the GS11, step 7, special the employees alternate payable rate
rate from step C. That step rate is the payable
rate of basic pay upon promotion. upon promotion is the maximum rate
of the range (step 10).
(4) Alternate method. (i) The alternate (iii) Example of alternate method: A
method of applying the promotion rule, GS7, step 7, employee in Atlanta is
which involves using pay schedules ap- promoted to a GS9 position in Wash-
plicable before promotion and then ington, DC. The promotion involves
converting pay to a different schedule not only a change in grade but also a
applicable after promotion, is pre- change in the employees occupational
sented in the following table: series. In Washington, DC, no special
rate schedule would apply to a GS7 or
GS9 position in the old occupational
Promotion RuleAlternate Method series, but a special rate schedule does
Steps Same as standard method in paragraph (d)(3) of
apply to the GS9 position in the new
A, B, this section. occupational series. Thus, different pay
C schedules apply before and after pro-
Step D Identify the highest applicable rate range for the
motion, and the alternate method
employees grade after promotion based on con- would result in a higher rate than the
sideration of any pay schedule that applied to the standard method. As provided in para-
employees position of record before promotion
(after any geographic conversion). (Do not con-
graph (d)(2)(ii) of this section, the
sider pay schedules that apply only to the em- agency must apply the alternate meth-
ployees new position of record after promotion. od and compare the result to the result
For example, if a particular special rate schedule
applies only to an employees position of record derived under the standard method, as
after promotion, disregard that schedule in apply- follows:
ing this step.) Find the lowest step in the highest
applicable rate range that equals or exceeds the
rate identified in step C. (If the rate identified in
step C exceeds the maximum of the rate range Step A Apply the geographic conversion rule in 531.205
identified in this step, the employees payable to determine the rates of basic pay for the GS7,
rate is that maximum rate, or, if the employees step 7, position in Washington, DC. Based on the
existing rate is higher than that maximum rate, a GS7 position before promotion (including the old
retained rate under 5 CFR part 536 equal to that occupational series), the pay schedules applica-
existing rate.) ble to the employee in Washington, DC, would be
the General Schedule and the locality rate sched-
Step E Convert the lowest step rate identified in step D to a ule applicable in Washington, DC.
corresponding step rate (same step) in the high-
est applicable rate range for the employees new Step B Using the underlying General Schedule, increase
position of record after promotion. This is the em- the GS7, step 7, rate by two within-grade in-
ployees alternate payable rate of basic pay upon creases, which produces the GS7, step 9, rate.
promotion. (If the rate derived under step D was
a retained rate, determine the alternate payable Step C The payable (highest) rate of basic pay for GS7,
rate of basic pay as provided in paragraph step 9, is the corresponding GS7, step 9, locality
(d)(4)(ii) of this section.) rate in Washington, DC.
Step F If the alternate payable rate identified in step E ex-
Step D If the employee were promoted to a GS9 position
ceeds the payable rate resulting from the stand-
in the old occupational series, the highest appli-
ard method in paragraph (d)(3) of this section, the
cable rate range for that GS9 position after pro-
employee is entitled to the alternate rate upon
motion would be the GS9 locality rate range in
promotion. Otherwise, the employee is entitled to
Washington, DC. The GS9, step 3, locality rate
the payable rate derived under the standard
is the lowest step rate in that range that equals or
method, except as provided in paragraph
exceeds the GS7, step 9, locality rate from step
(d)(2)(iii) of this section.
C.
(ii) In applying step E of the table in Step E Convert the GS9, step 3, locality rate to the higher
paragraph (d)(4)(i) of this section, if the GS9, step 3, special rate that applies to the em-
ployees position after promotion (including the
rate derived under step D was a re- new occupational series). That GS9, step 3,
tained rate, compare the retained rate special rate is the payable rate of basic pay upon
to the highest applicable rate range promotion.
identified in step E. If the retained rate
exceeds the maximum of that rate

range, the retained rate continues and
391
531.215 5 CFR Ch. I (1116 Edition)
Step F Assume that the standard method would have com- used in correcting an erroneous demo-
pared the GS7, step 9, locality rate directly to
the higher GS9 range of special rates and pro-
tion. (See 531.215(e).)
duced a rate of GS9, step 1. Since the rate pro- [70 FR 31291, May 31, 2005, as amended at 70
duced by the alternate method (GS9, step 3) is
greater than the rate produced by the standard
FR 74995, Dec. 19, 2005]
method, the result of the alternate method is
used. 531.215 Setting pay upon demotion.
(a) General. Except as otherwise pro-
(5) If employee was receiving a retained vided in this section, an employee who
rate before promotion. (i) If an employ- is demoted is entitled to the minimum
ees existing payable rate of basic pay payable rate of basic pay for the lower
before promotion is a retained rate, grade unless the agency sets the em-
apply the applicable promotion meth- ployees pay at a higher rate under
ods in paragraphs (d)(3) or (d)(4) of this (1) The grade and pay retention rules
section as if the employee were receiv- in 5 CFR part 536, as applicable; or
ing the maximum rate of the employ- (2) The maximum payable rate rule
ees grade before promotion. in 531.221, as applicable.
(ii) If the payable rate of basic pay (b) Geographic conversion. If the em-
after promotion determined under ployees official worksite after demo-
paragraph (d)(5)(i) of this section is tion is in a different geographic loca-
greater than the employees existing tion where different pay schedules
retained rate, the employee is entitled apply, the agency must first convert
to that payable rate. the employees payable rate of pay as
(iii) If the existing retained rate is required by 531.205 before setting the
greater than the rate determined under demoted employees pay using the
grade and pay retention rules in 5 CFR
paragraph (d)(5)(i) of this section, the
part 536 or the maximum payable rate
retained rate must be compared to the
rule in 531.221.
highest applicable rate range for the
(c) Expiration or termination of a tem-
position after promotion, as provided
porary promotion. (1) When an employee
in 5 CFR 536.304. The employee is enti- is returned to the lower grade from
tled to the lowest step rate in the which promoted on expiration or ter-
range that equals or exceeds the re- mination of a temporary promotion,
tained rate or, if the retained rate ex- the agency must set the employees
ceeds the range maximum, to the re- payable rate of basic pay in the lower
tained rate. grade as if he or she had not been tem-
(6) If employee is promoted from GS1 or porarily promoted, unless the agency
GS2. In applying the promotion rule to sets pay at a higher rate under the
an employee who is promoted from step maximum payable rate rule in 531.221.
9 or 10 of grade GS1 or GS2, the value As provided in subpart D of this part,
of two within-grade increases is deter- time during the temporary promotion
mined by doubling the within-grade in- may be creditable service towards GS
crease between step 9 and 10 for the ap- within-grade increases in the lower
plicable grade. grade.
(e) Temporary promotions. Pay is set (2) If a temporary promotion is made
for an employee receiving a temporary permanent immediately after the tem-
promotion on the same basis as a per- porary promotion ends, the agency
manent promotion. Upon expiration or may not return the employee to the
termination of the temporary pro- lower grade. (See 531.214(e).)
motion, pay is set as provided in (d) Demotion upon failure to complete a
531.215(c). If a temporary promotion is supervisory probationary period. When an
made permanent immediately after the employee promoted to a supervisory or
temporary promotion ends, the agency managerial position does not satisfac-
may not return the employee to the torily complete a probationary period
lower grade; instead, the agency must established under 5 U.S.C. 3321(a)(2) and
convert the employees temporary pro- is returned to a position at the lower
motion to a permanent promotion grade held before the promotion, the
without a change in pay.
agency must set the employees pay-

(f) Corrections of demotions. The pro- able rate of basic pay upon return to
motion rule in this section may not be the lower grade as if the employee had
392
not been promoted to the supervisory NAFI highest previous rate means
or managerial position, unless the the highest rate of basic pay received
agency sets pay at a higher rate under by an employee during service in a
the maximum payable rate rule in NAFI position, as described in 5 U.S.C.
531.221. As provided in subpart D of 2105(c).
this part, time served following the (c) Voluntary move. (1) For a Depart-
promotion may be creditable service ment of Defense or Coast Guard em-
towards GS within-grade increases in ployee who moves voluntarily, without
the lower grade. However, nothing in a break in service of more than 3 days,
this paragraph prohibits an agency from a NAFI position in the Depart-
from taking action against an em- ment of Defense or the Coast Guard to
ployee serving under a probationary a GS position in the Department of De-
period under 5 U.S.C. 3321(a)(2) for fense or the Coast Guard, respectively,
cause unrelated to supervisory or man- the agency may set the employees ini-
agerial performance and setting pay in tial payable rate of basic pay at the
accordance with such action. lowest step rate in the highest applica-
(e) Correcting an erroneous demotion. ble rate range currently in effect for
When a demotion is determined to be the employees GS position of record
erroneous and is canceled, the agency and official worksite which equals or
must set the employees rate of basic exceeds the employees NAFI highest
pay as if the employee had not been de- previous rate of pay, or any lower step
moted. The action is a correction of rate, except as provided in paragraph
the original demotion action and may (c)(2) or (3) of this section. The employ-
not be treated as a promotion under ees initial payable rate of basic pay
531.214. For example, when a demotion may not exceed the maximum step rate
based on a reclassification of the em- (step 10).
ployees position is found to be erro- (2) If the highest applicable rate
neous and is corrected retroactively range would be different if the official
under 5 CFR 511.703, the corrective ac- worksite for the employees position of
tion is cancellation of the original de- record were located at the place where
motion. the employee was stationed while earn-
ing the NAFI highest previous rate, the
FR 66152, Nov. 7, 2008] agency must determine the employees
maximum payable rate of basic pay as
531.216 Setting pay when an em- follows:
ployee moves from a Department of (i) Compare the NAFI highest pre-
Defense or Coast Guard non- vious rate to the highest applicable
appropriated fund instrumentality. rate range currently in effect in the lo-
(a) General. This section governs the cation where the employee was sta-
setting of pay for an employee who tioned while earning that rate. The
moves to a GS position in the Depart- highest applicable rate range is deter-
ment of Defense or the Coast Guard mined based on the pay schedules that
from a position in a nonappropriated would be applicable to the employees
fund instrumentality (NAFI) (as de- current GS position of record if the em-
scribed in 5 U.S.C. 2105(c)) of the De- ployee were stationed in that location.
partment of Defense or the Coast Identify the lowest step rate in the
Guard, respectively, without a break in highest applicable rate range that was
service of more than 3 days. If an em- equal to or exceeded the NAFI highest
ployee moves from a NAFI position to previous rate. If the NAFI highest pre-
a GS position with a break of more vious rate is less than the range min-
than 3 days or moves from a NAFI posi- imum, identify the minimum step rate
tion in the Department of Defense or (step 1). If the NAFI highest previous
the Coast Guard to a GS position out- rate exceeds the range maximum, iden-
side of the Department of Defense or tify the maximum step rate (step 10).
the Coast Guard, respectively, the em- (ii) Identify the step rate in the high-
ployee has no special conversion rights est applicable rate range for the em-
and this section does not apply. ployees current official worksite and
(b) NAFI highest previous rate. For the position of record that corresponds to
purpose of this section, the term the step rate derived under paragraph
393
531.217 5 CFR Ch. I (1116 Edition)
(c)(2)(i) of this section. That cor- Defense or the Coast Guard with the
responding rate is the maximum pay- position when it is moved to the civil
able rate at which the agency may set service employment system of the De-
the employees pay under this section, partment of Defense or the Coast
except as provided by paragraph (c)(3) Guard, respectively.
of this section. The agency may set the [70 FR 31291, May 31, 2005, as amended at 74
employees rate of basic pay at any FR 23938, May 22, 2009]
step rate that does not exceed that
maximum payable rate. 531.217 Special conversion rules for
(3) An agency may choose to apply certain non-GS employees.
the maximum payable rate rule in When an employee moves (without a
531.221 based on a non-NAFI rate of break in service) to a GS position from
basic pay if that rule provides a higher a non-GS system under an authority in
rate than provided by paragraph (c)(1) 5 U.S.C. chapters 47, 95, or similar pro-
or (2) of this section. vision of law, and that authority pro-
(d) Involuntary move. (1) For a Depart- vides that an employee will be con-
ment of Defense or Coast Guard em- verted to GS-equivalent rates imme-
ployee who is moved involuntarily (as diately before leaving the non-GS sys-
defined in paragraph (d)(3) of this sec- tem, the employee is considered a GS
tion), without a break in service of employee in applying the provisions of
more than 3 days, from a NAFI posi- this subpart.
tion in the Department of Defense or
the Coast Guard to a GS position with USING A HIGHEST PREVIOUS RATE UNDER
substantially the same duties in the THE MAXIMUM PAYABLE RATE RULE
Department of Defense or the Coast
Guard, respectively, the employee is 531.221 Maximum payable rate rule.
entitled to an initial payable rate of (a) General. (1) An agency may apply
basic pay at the lowest step rate of the the maximum payable rate rule as de-
grade that is equal to or greater than scribed in this section to determine an
the employees rate of basic pay in the employees payable rate of basic pay
NAFI position immediately before the under the GS pay system at a rate
move. If the employees former NAFI higher than the otherwise applicable
rate exceeds the range maximum, iden- rate upon reemployment, transfer, re-
tify the maximum step rate (step 10). assignment, promotion, demotion,
(2) For an employee covered by para- change in type of appointment, termi-
graph (d)(1) of this section, the agency nation of a critical position pay au-
may set the initial payable rate of thority under 5 CFR part 535, move-
basic pay at any of the following rates, ment from a non-GS pay system, or
unless the employee is entitled to re- termination of grade or pay retention
ceive a higher rate of basic pay under under 5 CFR part 536. (NOTE: Special
paragraph (d)(1) of this section: rules for GM employees are provided in
(i) The lowest step rate within the 531.247.) A payable rate set under this
highest applicable rate range for the section must take effect on the effec-
employees GS position of record and tive date of the action involved. This
official worksite that equals or exceeds section may not be used to set an em-
the employees NAFI highest previous ployees rate of basic pay retroactively
rate, or any lower step rate (consistent unless a retroactive action is required
with the method prescribed in para- to comply with a nondiscretionary
graphs (c)(1) and (2) of this section); agency policy.
(ii) A rate determined under the max- (2) At its discretion, an agency may
imum payable rate rule in 531.221 set an employees rate(s) of basic pay
(using non-NAFI rates of basic pay); or at the maximum rate identified under
(iii) A rate determined under the au- this section or at a lower rate. How-
thority to grant pay retention in 5 CFR ever, the employees rate may not be
536.302(a). lower than the rate to which he or she
(3) For the purpose of this paragraph is entitled under any other applicable
(d), moved involuntarily means the pay-setting rule.

movement of the incumbent of an (3) In applying this section, an agen-
NAFI position in the Department of cy must use applicable annual rates of
394
pay or, if a rate under a non-GS system may pay the employee under this sec-
is an hourly rate, convert the hourly tion.
rate to an annual rate. (4) After setting the employees GS
(4) In applying this section, an agen- or LEO special base rate within the
cy must treat a critical position pay rate range for the grade (not to exceed
rate under 5 CFR part 535 as if it were the maximum payable rate identified
a rate under a non-GS pay system, as in paragraph (b)(3) of this section), the
described in paragraph (d) of this sec- agency must determine the employees
tion. payable rate of basic pay based on the
(5) In applying this section, an agen- employees GS or LEO special base
cy must treat an adjusted GS rate that rate.
includes market pay under 38 U.S.C. (c) When highest previous rate is based
7431(c) as if it were a rate under a non- on a GS employees special rate. When a
GS pay system, as described in para- GS employee is reassigned under the
graph (d) of this section. conditions described in 531.222(c), the
(b) When highest previous rate is based employees former special rate in effect
on a GS rate or LEO special base rate. immediately before the reassignment
When an employees highest previous may be used as the employees highest
rate (as determined under 531.222) is previous rate. If the employees former
based on a GS rate or an LEO special special rate schedule is being adjusted
base rate paid under the GS pay sys- on the effective date of the employees
tem, an agency must determine the reassignment, the agency must deter-
maximum payable rate of basic pay mine what the employees special rate
that may be paid to the employee as would have been on that adjusted
follows: schedule (before any other simulta-
(1) Compare the employees highest neous action) and treat the resulting
previous rate with the GS rates for the special rate as the employees former
grade in which pay is currently being
special rate in applying paragraph
set. For this comparison, use the
(c)(1) and (2) of this section. The agen-
schedule of GS rates in effect at the
cy must apply the maximum payable
time the highest previous rate was
rate rule as follows:
earned. In applying this paragraph to
an employee who was a law enforce- (1) When the employee is assigned to
ment officer receiving an LEO special an official worksite within the geo-
base rate when the highest previous graphic boundaries of a formerly appli-
rate was earned, compare the highest cable special rate schedule, compare
previous rate to the applicable LEO the former special rate to the rates of
special base rates in lieu of GS rates if basic pay in the highest applicable rate
the grade in which pay is currently range for the employees current posi-
being set is one of the grades from GS tion of record and current official
3 through GS10. worksite. Identify the lowest step rate
(2) Identify the lowest step in the in that range that equals or exceeds
grade at which the GS rate (or LEO the former special rate (or the max-
special base rate, if applicable) was imum step rate, if the former special
equal to or greater than the employees rate exceeds the range maximum).
highest previous rate. If the employees That step rate is the employees max-
highest previous rate was greater than imum payable rate of basic pay.
the maximum GS rate (or LEO special (2) When the employee is assigned to
base rate, if applicable) for the grade, an official worksite outside the geo-
identify the step 10 rate (i.e., maximum graphic boundaries of the formerly ap-
rate of the grade). plicable special rate schedule, deter-
(3) Identify the rate on the currently mine the maximum payable rate as fol-
applicable range of GS rates or LEO lows:
special base rates for the employees (i) Convert the former special rate to
current position of record and grade a corresponding rate (same step) in the
that corresponds to the step identified current highest applicable rate range
in paragraph (b)(2) of this section. This for the new official worksite based on
rate is the maximum payable GS rate the employees position of record im-
or LEO special base rate the agency mediately before the reassignment.
395
531.222 5 CFR Ch. I (1116 Edition)
(ii) If the rate resulting from the geo- corresponding rate (same step) in the
graphic conversion under paragraph current highest applicable rate range
(c)(2)(i) of this section is a special rate, for the employees current GS position
that converted special rate is deemed of record and official worksite. That
to be the employees former special step rate is the employees maximum
rate and highest previous rate in apply- payable rate of basic pay.
ing paragraph (c)(2)(iii) of this section. (3) After setting the employees rate
If the resulting rate is not a special of basic pay in the current highest ap-
rate, this paragraph (c) may not be plicable rate range (not to exceed the
used to determine the employees max- maximum payable rate), the agency
imum payable rate. Instead, paragraph must determine any underlying rate of
(b) of this section must be used. basic pay to which the employee is en-
(iii) Compare the employees highest titled at the determined step rate.
previous rate (i.e., the former special [70 FR 31291, May 31, 2005, as amended at 73
rate after the geographic conversion) FR 66152, Nov. 7, 2008]
with the rates on the current highest
applicable rate range for the new offi- 531.222 Rates of basic pay that may
cial worksite based on the employees be used as the highest previous
position of record after the reassign- rate.
ment. Identify the lowest step rate in (a)(1) Subject to the conditions in
that range that equals or exceeds the this section and 531.223, the highest
highest previous rate (or the maximum previous rate used in applying 531.221
step rate, if the highest previous rate is
exceeds the range maximum). That (i) The highest rate of basic pay pre-
step rate is the employees maximum viously received by an individual while
payable rate of basic pay. employed in a civilian position in any
(3) After setting the employees rate part of the Federal Government (in-
of basic pay in the highest applicable cluding service with the government of
rate range (not to exceed the maximum the District of Columbia for employees
payable rate), the agency must deter- first employed by that government be-
mine any underlying rate of basic pay fore October 1, 1987), without regard to
to which the employee is entitled based whether the position was in the GS pay
on the employees step rate. system; or
(d) When highest previous rate is based (ii) The highest rate of basic pay in
on a rate under a non-GS pay system. effect when a GS employee held his or
When an employees highest previous her highest GS grade and highest step
rate (as provided in 531.222) is based within that grade.
on a rate of basic pay in a non-GS pay (2) The highest previous rate must be
system, the agency must determine the a rate of basic pay received by an em-
maximum payable rate of basic pay ployee while serving on a regular tour
that may be paid to the employee in of duty
his or her current GS position of record (i) Under an appointment not limited
as follows: to 90 days or less; or
(1) Compare the highest previous rate (ii) For a continuous period of not
to the highest applicable rate range in less than 90 days under one or more ap-
effect at the time and place where the pointments without a break in service.
highest previous rate was earned. The (b) For periods of service as a GS em-
highest applicable rate range is deter- ployee, the highest previous rate may
mined as if the employee held the cur- not be a special rate, except as pro-
rent GS position of record (including vided in paragraph (c) of this section. If
grade in which pay is being set) at that the highest previous rate is a locality
time and place. Identify the lowest step rate, the underlying GS rate or an LEO
rate in that range that was equal to or special base rate associated with that
higher than the highest previous rate locality rate must be used as the high-
(or the maximum step rate if the highest previous rate in applying
est previous rate exceeded the range 531.221(b).
maximum). (c) An agency may use a GS employ-

(2) Convert the step rate identified in ees special rate established under 5
paragraph (d)(1) of this section to a U.S.C. 5305 and 5 CFR part 530, subpart
396
C, or 38 U.S.C. 7455 as the highest pre- fense or Coast Guard nonappropriated

vious rate when all of the following fund instrumentality;
conditions apply: (f) A rate received solely during a pe-
(1) The employee is reassigned to an- riod of interim relief under 5 U.S.C.
other position in the same agency at 7701(b)(2)(A);
the same grade level; (g) A special rate established under 5
(2) The special rate is the employees U.S.C. 5305 and 5 CFR part 530, subpart
rate of basic pay immediately before C, or 38 U.S.C. 7455 (except as provided
the reassignment; and in 531.222(c));
(3) An authorized agency official (h) A rate received under a void ap-
finds that the need for the services of pointment or a rate otherwise contrary
the employee, and the employees con- to applicable law or regulation;
tribution to the program of the agency, (i) A rate received as a member of the
will be greater in the position to which uniformed services; or
reassigned. An agency must make such (j) A retained rate under 5 U.S.C. 5363
determinations on a case-by-case basis. or a similar rate under another legal
In each case, the agency must docu- authority.
ment the determination to use the spe- [70 FR 31291, May 31, 2005, as amended at 73
cial rate as an employees highest pre- FR 66153, Nov. 7, 2008]
vious rate in writing.
(d) When an agency is barred from SPECIAL RULES FOR GM EMPLOYEES
using a special rate established under 5
U.S.C. 5305 and 5 CFR part 530, subpart 531.241 Retaining and losing GM sta-
C, or 38 U.S.C. 7455 as an employees tus.
highest previous rate under 531.223(g), (a) An employee retains status as a
the agency must consider a special rate GM employee (as defined in 531.203)
employees underlying GS rate (or LEO when detailed to any position or when
special base rate, if applicable) in de- reassigned to another GS position in
termining the employees highest pre- which the employee continues to be a
vious rate for the purpose of applying supervisor or management official (as
paragraph (b) of this section. defined in 5 U.S.C. 7103(a)(10) and (11)).
[70 FR 31291, May 31, 2005, as amended at 70 (b) An employee permanently loses
FR 74995, Dec. 19, 2005] status as a GM employee if he or she is
promoted (including a temporary pro-
531.223 Rates of basic pay that may motion), transferred, demoted, reas-
not be used as the highest previous signed to a position in which the em-
rate. ployee will no longer be a supervisor or
The highest previous rate may not be management official, has a break in
based on the following: service of more than 3 days, or becomes
(a) A rate received under an appoint- entitled to a retained rate under 5 CFR
ment as an expert or consultant under part 536. (A retained grade is not con-
5 U.S.C. 3109; sidered in determining whether a GM
(b) A rate received in a position to employee has been reduced in grade.
which the employee was temporarily See 5 CFR 536.205.)
promoted for less than 1 year, except
upon permanent placement in a posi- 531.242 Setting pay upon loss of GM
tion at the same or higher grade; status.
(c) A rate received in a position from (a) On loss of status as a GM em-
which the employee was reassigned or ployee under 531.241 (except as pro-
reduced in grade for failure to satisfac- vided in paragraph (b) of this section),
torily complete a probationary period an employee must receive his or her ex-
as a supervisor or manager; isting payable rate of basic pay, plus
(d) A rate received by an individual any of the following adjustments that
while employed by the government of may be applicable on the effective date
the District of Columbia who was first of the loss of status, in the order speci-
employed by that government on or fied:
after October 1, 1987; (1) The amount of any annual adjust-

(e) A rate received by an individual ment in GS rates under 5 U.S.C. 5303,
while employed by a Department of De- and the amount of any adjustment in
397
531.243 5 CFR Ch. I (1116 Edition)
locality payments or special rate sup- must be placed on a GS step rate in the
plements, to which the employee other- post-promotion grade.
wise would be entitled on that date;
(2) The amount of any within-grade 531.244 Adjusting a GM employees
increase to which the employee other- rate at the time of an annual pay
wise would be entitled on that date adjustment.
under 5 U.S.C. 5335 and subpart D of (a) On the effective date of an annual
this part; pay adjustment under 5 U.S.C. 5303 or
(3) The amount resulting from a pro- similar authority, an agency must set
motion effective on that date (con- the new GS rate for a GM employee as
sistent with 531.243(c)); follows:
(4) In the case of an employee who (1) For a GM employee whose GS rate
loses GM status without a change of equals a regular GS step rate, set the
grade and whose GS rate falls between employees rate at the new step rate in
two steps of a GS grade, the amount of the adjusted General Schedule that
any increase needed to pay the em- corresponds to the employees grade
ployee the rate for the next higher step and step as in effect immediately be-
of that grade; and fore the effective date of the pay ad-
(5) In the case of an employee whose justment.
resulting GS rate is below the min- (2) For a GM employee whose GS rate
imum rate of a GS grade, the amount is below the minimum rate of the GS
of any increase needed to pay the em- rate range for the employees grade, in-
ployee the minimum rate for that crease the existing GS rate by the
grade. same percentage as the annual pay ad-
(b) For an employee who loses status justment for the GS rate range applica-
as a GM employee as a result of a de- ble to the employees grade, with the
motion, pay must be set as provided in result rounded to the nearest dollar
531.215. A GM employees off-step GS (not to exceed the minimum rate of the
rate at the grade before demotion is range).
not converted to a GS step rate before (3) For a GM employee whose GS rate
the demotion, but the employee must is between GS step rates, apply the fol-
be placed on a GS step rate when pay is lowing method:
set in the lower grade.
531.243 Promotion of a GM employee.

Step A Using the rates and ranges in effect immediately
(a) Upon promotion, an employees before the annual pay adjustment, find the dif-
status as a GM employee ends, as pro- ference between the GM employees GS rate and
vided in 531.241(b). the minimum rate of the GS rate range for the
employees grade.
(b) When an employee loses status as
a GM employee because of a temporary Step B Find the difference between the maximum rate and
promotion and is returned to the lower minimum rate of the GS rate range in effect im-
mediately before the annual pay adjustment. (If
grade upon expiration or termination the GS maximum rate was not payable because
of the temporary promotion under of the EX level V pay limitation in 5 U.S.C.
531.215(c)(1), he or she will be deemed 5303(f), use the uncapped maximum rate.)
to have been placed at the lowest step
Step C Divide the result from step A by the result from step
rate that equals or exceeds the employ- B. Carry this result to the seventh decimal place
ees former GS rate (as a GM employee) and truncate, rather than round, the result. This
on the effective date of the temporary decimal factor represents the employees relative
position in the rate range.
promotion, before applying any other
step increases based on his or her serv- Step D Using rates and ranges in effect after the annual
ice during the temporary promotion. pay adjustment, find the difference between the
(c) A GM employees GS rate is used maximum rate and minimum rate of the new GS
rate range for the employees grade. (If the GS
as the existing rate of pay in applying maximum rate was not payable because of the
the promotion rule in 531.214. A GM EX level V pay limitation, use the uncapped max-
employees off-step GS rate in the imum rate.)
grade before promotion is not con- Step E Multiply the result from step D by the factor derived
verted to a GS step rate in applying from step C.
the promotion rule, but the employee
398
Step F Add the result from step E to the minimum rate of (c) If an employee retains GM status
the employees current GS rate range and round
to the next higher whole dollar. The resulting rate
after an action that allows application
is the GM employees new GS rate (subject to of the maximum payable rate rule in
the EX level V pay limitation). 531.221 to set the employees pay, the
rules in 531.221 must be applied in ac-
(b) [Reserved] cordance with the following special
[70 FR 31291, May 31, 2005, as amended at 73 provisions:
FR 66153, Nov. 7, 2008] (1) In comparing the employees high-
est previous rate to an applicable rate
531.245 Computing locality rates and range for the grade in which pay is
special rates for GM employees. being set, do not identify the lowest
Locality rates and special rates are step rate that equals or exceeds the
computed for GM employees in the highest previous rate. Instead, identify
same manner as locality rates and spe- the rate in the rate range that equals
cial rates for other GS employees. The the highest previous rate unless that
applicable locality payment or special highest previous rate is below the
rate supplement is added on top of the range minimum or above the range
GM employees GS rate. maximum. If the highest previous rate
is below the range minimum, identify
531.246 Within-grade increases for the minimum rate (step 1) of the grade.
GM employees.
If the highest previous rate is above
GM employees are entitled to within- the range maximum, identify the max-
grade increases as provided under sub- imum rate (step 10) of the grade.
part D of this part. A within-grade in- (2) In applying 531.221(b) for an em-
crease may not cause a GM employees ployee whose highest previous rate is a
GS rate to exceed the maximum GS GS rate, the highest previous rate
rate of his or her grade. GM employees must be compared to the GS rate range
may receive quality step increases as for the grade in which pay is currently
provided in subpart E of this part. being set, but which was in effect at
[73 FR 66153, Nov. 7, 2008] the time the highest previous rate was
earned. If the highest previous rate was
531.247 Maximum payable rate rule earned while the current GS rate range
for GM employees. was in effect, the rate identified under
(a) A rate received by a GM employee paragraph (c)(1) of this section is the
may qualify as a highest previous rate maximum payable GS rate. Otherwise,
under 531.222. based on the rate identified in para-
(b) As provided in 531.221(a) and graph (c)(1) of this section, the agency
531.241(b), if an employee loses status must determine the corresponding rate
as a GM employee because of a trans- in the current GS rate range for the
fer, promotion, demotion, or reassign- grade in which pay is currently being
ment to a position in which the em- set. That corresponding rate is the
ployee will no longer be a supervisor or maximum payable GS rate. If the high-
management official, and if the em- est previous rate was above the range
ploying agency after the action chooses minimum and below the range max-
to apply the maximum payable rate imum, the corresponding rate in the
rule, the agency must follow the rules current GS rate range must be derived
in 531.221. as follows:
Step A ........... Find the difference between the employees highest previous rate
and the minimum rate for the GS rate range (for the employ-
ees current grade) in effect at the time the highest previous
rate was earned.
Step B ............ Find the difference between the maximum rate and the min-
imum GS rate for the rate range identified in step A. (If the
GS maximum rate was not payable because of the EX level V
pay limitation, use the uncapped maximum rate.)
399
531.401 5 CFR Ch. I (1116 Edition)
Step C ............ Divide the result from step A by the result from step B. Carry
this result to the seventh decimal place and truncate, rather
than round, the result. This decimal factor represents the em-
ployees relative position in the rate range.
Step D ........... Using the current GS rate range (for the employees current
grade), find the difference between the maximum rate and the
minimum rate. (If the maximum GS rate was not payable be-
cause of the EX level V pay limitation, use the uncapped max-
imum GS rate.)
Step E ............ Multiply the result from step D by the factor derived under step
C.
Step F ............ Add the result from step E to the minimum rate for the employ-
ees current GS rate range and round to the next higher whole
dollar. This rate is the maximum payable GS rate the agency
may pay the employee (subject to the EX level V pay limita-
tion).
(3) In applying 531.221(c) for an em- ministration of General Schedule pay

ployee whose highest previous rate is a rates, including within-grade increases.
special rate, the highest previous rate (d) Section 4 of the Performance
(after any geographic conversion) must Management and Recognition System
be compared directly to the current Termination Act of 1993 (Pub. L. 10389)
highest applicable rate range for the provides that the Office of Personnel
employees position of record and offi- Management shall prescribe regula-
cial worksite after reassignment. Thus, tions necessary for the administration
the rate identified under paragraph of this section.
(c)(1) of this section is the maximum
payable rate of basic pay. FR 40793, Aug. 10, 1994; 60 FR 33098, June 27,
[70 FR 31291, May 31, 2005, as amended at 73 1995]
FR 66153, Nov. 7, 2008]
531.402 Employee coverage.
Subpart C [Reserved] (a) Except as provided in paragraph
(b) of this section, this subpart applies
Subpart DWithin-Grade to employees who
(1) Are classified and paid under the
Increases General Schedule;
(2) Occupy permanent positions; and
SOURCE: 46 FR 2319, Jan. 9, 1981, unless oth- (3) Are paid less than the maximum
erwise noted.
rate of their grade.
531.401 Principal authorities. (b) This subpart does not apply to
any employee who is appointed by the
The following are the principal au- President, by and with the advice and
thorities for the regulations in this consent of the Senate.
subpart:
(a) Section 2301(b)(3) of title 5, United [70 FR 31301, May 31, 2005]
States Code, provides in part that ap-
propriate incentives and recognition 531.403 Definitions.
should be provided for excellence in In this subpart:
performance. Acceptable level of competence means
(b) Section 5301(a)(2) of title 5, United performance by an employee that war-
States Code, provides that pay dis- rants advancement of the employees
tinctions be maintained in keeping rate of basic pay to the next higher
with work and performance distinc- step of the grade or the next higher
tions. rate within the grade (as defined in
(c) Section 5338 of title 5, United this section) of his or her position, sub-
States Code, provides that The Office ject to the requirements of 531.404 of
of Personnel Management may pre- this subpart, as determined by the head
scribe regulations necessary for the ad- of the agency (or designee).
400
Agency means an agency with em- Act of 1990 (section 529 of Pub. L. 101
ployees covered by this subpart, as pro- 509, November 5, 1990, as amended)
vided in 531.402. which is used in lieu of a GS rate.
Calendar week means a period of any Next higher rate within the grade for a
seven consecutive calendar days. GM employee means the rate of basic
Critical element has the meaning given pay that exceeds the employees exist-
that term in 430.203 of this chapter. ing rate of basic pay by one within-
Employee has the meaning given that grade increase, not to exceed the max-
term in 5 U.S.C. 2105, except that for imum rate of the grade. For the pur-
the purpose of applying the provisions pose of this definition, a within-grade
regarding equivalent increases and increase equals the dollar value of the
creditable service with respect to non- GS within-grade increase for the appli-
GS service, employee also includes
cable grade (excluding any locality
(1) An individual employed by the
payment, special rate supplement, or
U.S. Postal Service or the Postal Rate
any other additional payment).
Commission who would be considered
an employee under 5 U.S.C. 2105 but for Permanent position means a position
the exclusion in section 2105(e); and filled by an employee whose appoint-
(2) An individual employed by a non- ment is not designated as temporary
appropriated fund instrumentality for by law and does not have a definite
service that is creditable under time limitation of one year or less.
531.406(b)(4). Permanent position includes a posi-
Equivalent increase means an increase tion to which an employee is promoted
in an employees rate of basic pay, or on a temporary or term basis for at
an opportunity for such an increase least one year.
under a non-GS pay system, as de- Promotion means an employees
scribed in 531.407. movement from one grade or level to a
General Schedule or GS means the higher grade or level while continu-
classification and pay system estab- ously employed (including such a
lished under 5 U.S.C. chapter 51 and movement in conjunction with a trans-
subchapter III of chapter 53. The term fer).
also refers to the pay schedule of GS Rate of basic pay means the rate of
rates established under 5 U.S.C. 5332, as pay fixed by law or administrative ac-
adjusted under 5 U.S.C. 5303 or other tion for the position held by an em-
law (including GS rates payable to GM ployee before any deductions and ex-
employees). Law enforcement officers clusive of additional pay of any kind.
receiving LEO special base rates are For an employee covered by the Gen-
covered by the GS classification and eral Schedule, that rate of basic pay is
pay system, but receive higher base the GS rate or, if applicable, an LEO
rates of pay in lieu of GS rates at special base rate.
grades GS3 through GS10.
Scheduled tour of duty means any
GM employee has the meaning given
work schedule established for an em-
that term in 5 CFR 531.203.
ployee in accordance with the regular
procedures for the establishment of
within the General Schedule, excluding
additional pay of any kind such as lo- workweeks in 610.111 of this chapter.
cality payments under subpart F of For a full-time employee this includes
this part and special rate supplements the basic 40-hour workweek. For a
under 5 CFR part 530, subpart C, or 38 part-time employee this is any regu-
U.S.C. 7455. A rate payable to a GM em- larly scheduled work of less than 40-
ployee is considered a GS rate. hours during the administrative work-
Law enforcement officer or LEO has week.
the meaning given that term in 5 CFR Temporary promotion means a time-
550.103. limited promotion with a not-to-exceed
LEO special base rate means a special date or a specified term.
base rate established for GS law en- Waiting period means the minimum
forcement officers at grades GS3 time requirement of creditable service

through GS10 under section 403 of the to become eligible for consideration for
Federal Employees Pay Comparability a within-grade increase.
401
531.404 5 CFR Ch. I (1116 Edition)
Within-grade increase is synonymous advancement to the next higher step of

with the term step increase used in 5 the grade of his or her position.
U.S.C. 5335 and means* * (c) The employee must not have re-
(1) A periodic increase in an employ- ceived an equivalent increase during
ees rate of basic pay from one step of the waiting period.
the grade of his or her position to the [51 FR 8420, Mar. 11, 1986, as amended at 58
next higher step of that grade in ac- FR 65536, Dec. 15, 1993; 60 FR 43948, Aug. 23,
cordance with section 5335 of title 5, 1995]
United States Code, and this subpart;
or 531.405 Waiting periods for within-
grade increase.
(2) For a GM employee whose rate
does not equal a regular GS step rate (a) Length of waiting period. (1) For an
(i.e., an off-step rate), a periodic in- employee with a scheduled tour of
crease in an employees rate of basic duty, the waiting periods for advance-
pay from the employees current rate ment to the next higher step in all
to the next higher rate within the General Schedule grades (or the next
grade (as defined in this section) con- higher rate within the grade, as defined
sistent with section 4 of Public Law in 531.403) are:
10389. (i) Rate of basic pay less than the
rate of basic pay at step 452 calendar
[46 FR 2319, Jan. 9, 1981, as amended at 46 FR weeks of creditable service;
41019, Aug. 14, 1981; 48 FR 49486, Oct. 25, 1983; (ii) Rate of basic pay equal to or
51 FR 8420, Mar. 11, 1986; 58 FR 65536, Dec. 15,
greater than the rate of basic pay at
1993; 59 FR 40793, Aug. 10, 1994; 60 FR 33098,
June 27, 1995; 60 FR 43947, Aug. 23, 1995; 70 FR
step 4 and less than the rate of basic
31301, May 31, 2005] pay at step 7104 calendar weeks of
creditable service; and
531.404 Earning within-grade in- (iii) Rate of basic pay equal to or
crease. greater than the rate of basic pay at
step 7156 calendar weeks of creditable
An employee paid at less than the
service.
maximum rate of the grade of his or
(2) For an employee without a sched-
her position shall earn advancement in
uled tour of duty, the waiting periods
pay to the next higher step of the grade
for advancement to the next higher
or the next higher rate within the step of all General Schedule grades (or
grade (as defined in 531.403) upon the next higher rate within the grade,
meeting the following three require- as defined in 531.403) are:
ments established by law: (i) Rate of basic pay less than the
(a) The employees performance must rate of basic pay at step 4260 days of
be at an acceptable level of com- creditable service in a pay status over
petence, as defined in this subpart. To a period of not less than 52 calendar
be determined at an acceptable level of weeks;
competence, the employees most re- (ii) Rate of basic pay equal to or
cent rating of record (as defined in greater than the rate of basic pay at
430.203 of this chapter) shall be at step 4 and less than the rate of basic
least Level 3 (Fully Successful or pay at step 7520 days of creditable
equivalent). service in a pay status over a period of
(1) When a within-grade increase de- not less than 104 calendar weeks; and
cision is not consistent with the em- (iii) Rate of basic pay equal to or
ployees most recent rating of record a greater than the rate of basic pay at
more current rating of record must be step 7780 days of creditable service in
prepared. a pay status over a period of not less
(2) The rating of record used as the than 156 calendar weeks.
basis for an acceptable level of com- (b) Commencement of a waiting period.
petence determination for a within- A waiting period begins;
grade increase must have been assigned (1) On the first appointment as an
no earlier than the most recently com- employee of the Federal Government,
pleted appraisal period. regardless of tenure;

(b) The employee must have com- (2) On receiving an equivalent in-
pleted the required waiting period for crease; or
402
(3) After a period of nonpay status or (i) Two workweeks in the waiting pe-
a break in service (alone or in com- riod for an employee whose rate of
bination) in excess of 52 calendar basic pay is less than the rate of basic
weeks, unless the nonpay status or pay for step 4 of the applicable grade;
break in service is creditable service (ii) Four workweeks in the waiting
under 531.406 of this subpart. period for an employee whose rate of
(c) A waiting period is not inter- basic pay is equal to or greater than
rupted by non-workdays intervening the rate of basic pay for step 4 of the
between an employees last scheduled applicable grade and less than the rate
workday in one position and his or her of basic pay for step 7 of the applicable
first scheduled workday in a new posi- grade; and
tion. (iii) Six workweeks in the waiting pe-
[46 FR 2319, Jan. 9, 1981, as amended at 58 FR riod for an employee whose rate of
65536, Dec. 15, 1993; 59 FR 40794, Aug. 10, 1994] basic pay is equal to or greater than
the rate of basic pay for step 7 of the
531.406 Creditable service. applicable grade.
(a) General. Civilian employment in (3) Except as provided in paragraph
any branch of the Federal Government (c) of this section, time in a nonpay
(executive, legislative, or judicial) or status (based upon the tour of duty
with a Government corporation as de- from which the time was charged) that
fined in section 103 of title 5, United is in excess of the allowable amount
States Code, is creditable service in the shall extend a waiting period by the ex-
computation of a waiting period. Serv- cess amount.
ice credit is given during this employ- (4) Service by an employee of a non-
ment for periods of annual, sick, and appropriated fund instrumentality of
other leave with pay; advanced annual the Department of Defense or the Coast
and sick leave; service under a tem- Guard, as defined in 5 U.S.C. 2105(c),
porary or term appointment; and serv- who moves, within the civil service em-
ice under an interim appointment ployment system of the Department of
made under 772.102 of this chapter. De- Defense or the Coast Guard, respec-
pending on the specific provision of law tively, and without a break in service
or regulation, service may be cred- of more than 3 days, to a position clas-
itable for the completion of one wait- sified and paid under the General
ing period or for the completion of suc- Schedule, is creditable service in the
cessive waiting periods. Paragraph (b) computation of a waiting period.
of this section identifies service which (c) Service creditable for succesive with-
is creditable in the computation of a in-grade increases. (1) A leave of absence
single waiting period. Paragraph (c) from a position in which an employee
identifies service which is creditable in is covered by this subpart, whether the
the computation of successive waiting employee is on leave without pay or is
periods. considered to be on furlough, is cred-
(b) Service creditable for one within- itable service in the computation of
grade increase. (1) Military service as waiting periods for successive within-
defined in section 8331(13) of title 5, grade increases when:
United States Code, is creditable serv- (i) The employee is absent for the
ice in the computation of a waiting pe- purpose of engaging in military service
riod when an employee is reemployed as defined in section 8331(13) of title 5,
with the Federal Government not later United States Code, and returns to a
than 52 calendar weeks after separation pay status through the exercise of a
from such service or hospitalization restoration right provided by law, Ex-
continuing thereafter for a period of ecutive order, or regulation;
not more than one year. (ii) The employee is receiving injury
(2) Time in a nonpay status (based compensation under subchapter I of
upon the tour of duty from which the chapter 81 of title 5, United States
time was charged) is creditable service Code;
in the computation of a waiting period (iii) The employee is performing serv-
for an employee with a scheduled tour ice that is creditable under section
of duty when it does not exceed an ag- 8332(b) (5) or (7) of title 5, United States
gregate of: Code;
403
531.407 5 CFR Ch. I (1116 Edition)
(iv) The employee is temporarily em- torily complete a probationary period

ployed by another agency in a position established under 5 U.S.C. 3321(a)(2) and
covered by this subpart; or is returned to a position at the lower
(v) The employee is assigned to a grade held before promotion;
State or local government or institu- (3) Application of the maximum pay-
tion of higher education under sections able rate rule in 531.221 that results in
33713376 of title 5, United States Code. a higher step rate within the employ-
(2) The period from the date of an ees GS grade (or an increase for a GM
employees separation from Federal employee to the next higher rate with-
service with a restoration or reemploy- in the grade), except for application of
ment right granted by law, Executive that rule in a demotion to the extent
order, or regulation to the date of res- that the employees rate of basic pay
toration or reemployment with the after demotion does not exceed the
Federal Government through the exer- lowest step rate that equals or exceeds
cise of that right is creditable service the employees rate of basic pay imme-
in the computation of waiting periods diately before the demotion;
for successive within-grade increases. (4) Application of the superior quali-
(3) The period during which a sepa- fications and special needs pay-setting
rated employee is in receipt of injury authority in 531.212 that results in a
compensation under subchapter I of higher step rate within the employees
chapter 81 of title 5, United States GS grade (or an increase for a GM em-
Code, as a result of an injury incurred ployee to the next higher rate within
by the employee in the performance of the grade); or
duty is creditable service in the com- (5) Application of the qualifications
putation of waiting periods for succes- pay authority in 5 U.S.C. 9814 to an em-
sive within-grade increases when the ployee of the National Aeronautics and
employee is reemployed with the Fed- Space Administration, when the em-
eral Government. ployee fulfills the 1-year service re-
quirement in the position for which
41019, Aug. 14, 1981; 46 FR 43371, Aug. 28, 1981; qualifications pay was paid or in a suc-
46 FR 45747, Sept. 15, 1981; 57 FR 3712, Jan. 31, cessor position.
1992; 57 FR 12404, Apr. 10, 1992; 59 FR 40794, (b) Non-GS employees who move to the
Aug. 10, 1994; 59 FR 66332, Dec. 28, 1994; 73 FR GS pay system. When an employee per-
66153, Nov. 7, 2008] forms service under a non-GS pay sys-
tem for Federal employees and that
531.407 Equivalent increase deter- service is potentially creditable to-
minations. wards a GS within-grade increase wait-
(a) GS employees. For a GS employee, ing period, an equivalent increase is
an equivalent increase is considered to considered to occur at the time of any
occur at the time of any of the fol- of the following personnel actions in
lowing personnel actions: the non-GS pay system:
(1) A within-grade increase, excluding (1) A promotion to a higher grade or
a quality step increase granted under work level within the non-GS pay sys-
subpart E of this part or an interim tem (unless the promotion is cancelled
within-grade increase if that increase and the employees rate of basic pay is
is later terminated under 531.414; redetermined as if the promotion had
(2) A promotion (permanent or tem- not occurred); or
porary) to a higher grade, including the (2) An opportunity to receive a with-
promotion of an employee receiving a in-level or within-range increase that
retained rate under 5 CFR 359.705 or 5 results in forward movement in the ap-
CFR part 536 that does not result in a plicable range of rates of basic pay (in-
pay increase, but excluding cluding an increase granted imme-
(i) A temporary promotion if, at the diately upon movement to the non-GS
end of the that temporary promotion, pay system from another pay system
the employee is returned to the grade e.g., to account for the value of accrued
from which promoted; or within-grade increases under the
(ii) A promotion to a higher-graded former pay system or to provide a pro-

supervisory or managerial position motion-equivalent increase), where
when the employee does not satisfac- forward movement in the applicable
404
range means any kind of increase in agency, a rating of record at the lower
the employees rate of basic pay other grade shall be used as the basis for an
than an increase that is directly and acceptable level of competence deter-
exclusively linked to mination.
(i) A general structural increase in (c) Delay in determination. (1) An ac-
the employees basic pay schedule or ceptable level of competence deter-
rate range (including the adjustment of mination shall be delayed when, and
a range minimum or maximum); or only when, either of the following ap-
(ii) The employees placement under plies:
a new basic pay schedule within the (i) An employee has not had the min-
same pay system, when such placement
imum period of time established at
results in a nondiscretionary basic pay
430.207(a) of this chapter to dem-
increase to account for occupational
onstrate acceptable performance be-
pay differences.
cause he or she has not been informed
(c) Locality rates and special rates.
Since locality rates under subpart F of of the specific requirements for per-
this part and special rates under 5 CFR formance at an acceptable level of
part 530, subpart C, and similar rates competence in his or her current posi-
under other legal authority (e.g., 38 tion, and the employee has not been
U.S.C. 7455) are not rates of basic pay given a performance rating in any posi-
for the purpose of this subpart, in- tion within the minimum period of
creases in pay resulting from an ad- time (as established at 430.207(a) of
justment in an employees locality this chapter) before the end of the
payment or special rate supplement or waiting period; or
from placement on a new locality rate (ii) An employee is reduced in grade
or special rate schedule are not consid- because of unacceptable performance
ered in making equivalent increase de- to a position in which he or she is eligi-
terminations. ble for a within-grade increase or will
become eligible within the minimum
FR 74995, Dec. 19, 2005; 73 FR 66153, Nov. 7, period as established at 430.207(a) of
2008] this chapter.
(2) When an acceptable level of com-
531.408 [Reserved] petence determination has been de-
layed under this subpart:
531.409 Acceptable level of com-
petence determinations. (i) The employee shall be informed
that his or her determination is post-
(a) Responsibility. The head of the poned and the appraisal period ex-
agency or other agency official to tended and shall be told of the specific
whom such authority is delegated shall requirements for performance at an ac-
determine which employees are per- ceptable level of competence.
forming at an acceptable level of com-
(ii) An acceptable level of com-
petence.
petence determination shall then be
(b) Basis for determination. When ap-
made based on the employees rating of
plicable, an acceptable level of com-
petence determination shall be based record completed at the end of the ex-
on a current rating of record made tended appraisal period.
under part 430, subpart B, of this chap- (iii) If, following the delay, the em-
ter. For those agencies not covered by ployees performance is determined to
chapter 43 of title 5, United States be at an acceptable level of com-
Code, and for employees in positions petence, the within-grade increase will
excluded from 5 U.S.C. 4301, an accept- be granted retroactively to the begin-
able level of competence determination ning of the pay period following com-
shall be based on performance ap- pletion of the applicable waiting pe-
praisal requirements established by the riod.
agency. If an employee has been re- (d) Waiver of requirement for deter-
duced in grade because of unacceptable mination. (1) An acceptable level of
performance and has served in one po- competence determination shall be

sition at the lower grade for at least waived and a within-grade increase
the minimum period established by the granted when an employee has not
405
531.410 5 CFR Ch. I (1116 Edition)
served in any position for the min- granted a within-grade increase under
imum period under an applicable agen- 531.411 of this subpart.
cy performance appraisal program dur- (ii) Inform the employee of his or her
ing the final 52 calendar weeks of the right to request that the appropriately
waiting period for one or more of the designated agency official reconsider
following reasons: the determination.
(i) Because of absences that are cred-
itable service in the computation of a [46 FR 2319, Jan. 9, 1981, as amended at 51 FR
8420, Mar. 11, 1986; 60 FR 43948, Aug. 23, 1995;
waiting period or periods under 531.406
62 FR 62503, Nov. 24, 1997]
of this subpart;
(ii) Because of paid leave; 531.410 Reconsideration of a nega-
(iii) Because the employee received tive determination.
service credit under the back pay pro-
visions of subpart H of part 550 of this (a) When an agency head, or his or
chapter; her designee, issues a negative deter-
(iv) Because of details to another mination the following procedures are
agency or employer for which no rating established in accordance with section
has been prepared; 5335(c) of title 5, United States Code for
(v) Because the employee has had in- reconsideration of the negative deter-
sufficient time to demonstrate an ac- mination:
ceptable level of competence due to au- (1) An employee or an employees
thorized activities of official interest personal representative may request
to the agency not subject to appraisal reconsideration of a negative deter-
under part 430 of this chapter (includ- mination by filing, not more than 15
ing, but not limited to, labor-manage- days after receiving notice of deter-
ment partnership activities under sec- mination, a written response to the
tion 2 of Executive Order 12871 and negative determination setting forth
serving as a representative of a labor the reasons the agency shall reconsider
organization under chapter 71 of title 5, the determination;
United States Code); or (2) When an employee files a request
(vi) Because of long-term training. for reconsideration, the agency shall
(2) When an acceptable level of com- establish an employee reconsideration
petence determination has been waived file which shall contain all pertinent
and a within-grade increase granted documents relating to the negative de-
under paragraph (d)(1) of this section, termination and the request for recon-
there shall be a presumption that the sideration, including copies of the fol-
employee would have performed at an lowing:
acceptable level of competence had the (i) The written negative determina-
employee performed the duties of his tion and the basis therefore;
or her position of record for the min- (ii) The employees written request
imum period under the applicable for reconsideration;
agency performance appraisal program. (iii) The report of investigation when
(e) Notice of determination. (1) A level an investigation is made;
of competence determination shall be
(iv) The written summary or tran-
communicated to an employee in writ-
script of any personal presentation
ing as soon as possible after completion
made; and
of the waiting period or other period
upon which it was based. (v) The agencys decision on the re-
(2) When the head of an agency or his quest for reconsideration.
or her designee determines that an em- The file shall not contain any docu-
ployees performance is not at an ac- ment that has not been made available
ceptable level of competence, the nega- to the employee or his or her personal
tive determination shall be commu- representative with an opportunity to
nicated to the employee in writing and submit a written exception to any sum-
shall: mary of the employees personal pres-
(i) Set forth the reasons for any nega- entation;
tive determination and the respects in (3) An employee in a duty status

which the employee must improve his shall be granted a reasonable amount
or her performance in order to be of official time to review the material
406
relied upon to support the negative de- whether the employees performance is
termination and to prepare a response at an acceptable level of competence
to the determination; and after no more than 52 calendar weeks
(4) The agency shall provide the em- following the original eligibility date
ployee with a prompt written final de- for the within-grade increase and, for
cision. as long as the within-grade increase
(b) The time limit to request a recon- continues to be denied, determinations
sideration may be extended when the will be made after no longer than each
employee shows he or she was not noti- 52 calendar weeks.
fied of the time limit and was not oth-
[51 FR 8421, Mar. 11, 1986]
erwise aware of it, or that the em-
ployee was prevented by circumstances 531.412 Effective date of a within-
beyond his or her control from request- grade increase.
ing reconsideration within the time
limit. (a) Except as provided in paragraph
(c) An agency may disallow as an em- (b) of this section, a within-grade in-
ployees personal representative an increase shall be effective on the first
dividual whose activities as a rep- day of the first pay period following
resentative would cause a conflict of completion of the required waiting pe-
interest of position, an employee whose riod and in compliance with the condi-
release from his or her official duties tions of eligibility. Interim within-
and responsibilities would give rise to grade increases shall become effective
unreasonable costs to the Government, as provided in 541.414(b).
or an employee whose priority work as- (b) When an acceptable level of com-
signment precludes his or her release petence is achieved at some time after
from official duties and responsibil- a negative determination, the effective
ities. Section 7114 of title 5, United date is the first day of the first pay pe-
States Code, and the terms of any ap- riod after the acceptable determination
plicable collective bargaining agree- has been made.
ment govern representation for em- [46 FR 2319, Jan. 9, 1981, as amended at 46 FR
ployees in an exclusive bargaining 41020, Aug. 14, 1981; 59 FR 24029, May 10, 1994]
unit.
(d) When a negative determination is 531.413 Reports and evaluation of
sustained after reconsideration, an em- within-grade increase authority.
ployee shall be informed in writing of (a) Reports. The Office of Personnel
the reasons for the decision and of his Management may require agencies to
or her right to appeal the decision to maintain records and report on the use
the Merit Systems Protection Board. of the authority to grant or withhold
However, for an employee covered by a within-grade increases.
collective bargaining agreement a re- (b) Evaluation. The Office of Per-
consideration decision that sustains a sonnel Management may evaluate an
negative determination is only review- agencys use of the authority to grant
able in accordance with the terms of or withhold within-grade increases. An
the agreement. agency shall take any corrective action
[46 FR 2319, Jan. 9, 1981, as amended at 50 FR required by the Office.
45389, Oct. 31, 1985]
531.414 Interim within-grade in-
531.411 Continuing evaluation after crease.
withholding a within-grade in- (a) An interim within-grade increase
crease. shall be granted to an employee who
When a within-grade increase has has:
been withheld, an agency may, at any (1) Appealed a negative within-grade
time thereafter, prepare a new rating increase determination to the Merit
of record for the employee and grant Systems Protection Board under 5
the within-grade increase when it de- U.S.C 5335(c); and
termines that he or she has dem- (2) Been granted a favorable within-
onstrated sustained performance at an grade increase determination under the

acceptable level of competence. How- interim relief provisions of 5 U.S.C.
ever, the agency shall determine 7701(b)(2).
407
531.501 5 CFR Ch. I (1116 Edition)
(b) An interim within-grade increase grade or next higher rate within the
granted under paragraph (a) of this sec- grade (as defined in 531.403) in accord-
tion shall become effective on the date ance with section 5336 of title 5, United
of the appellate decision ordering in- States Code, section 4 of the Perform-
terim relief under 5 U.S.C. 7701(b)(2)(A). ance Management and Recognition
(c) If the final decision of the Merit System Termination Act of 1993 (Pub.
Systems Protection Board upholds the L. 10389), and this subpart.
negative within-grade increase deter-
mination, an interim within-grade in- [46 FR 2322, Jan. 9, 1981, as amended at 46 FR
crease granted under this section shall 41020, Aug. 14, 1981; 58 FR 65537, Dec. 15, 1993;
be terminated on the date of the 59 FR 40794, Aug. 10, 1994]
Boards final decision.
(d) If the final decision of the Merit 531.503 Purpose of quality step in-
creases.
Systems Protection Board overturns
the negative within-grade increase de- The purpose of quality step increases
termination, an interim within-grade is to provide appropriate incentives
increase granted under this section and recognition for excellence in per-
shall be made permanent and shall be formance by granting faster than nor-
granted retroactively to the first day mal step increases.
of the first pay period beginning on or
after completion of the applicable [60 FR 43948, Aug. 23, 1995]
waiting period.
531.504 Level of performance re-
(e) An employee may not appeal the
quired for quality step increase.
termination of an interim within-grade
increase under paragraph (c) of this A quality step increase shall not be
section. required but may be granted only to
(a) An employee who receives a rat-
FR 24030, May 10, 1994; 59 FR 65703, Dec. 21, ing of record at Level 5 (Outstanding
1994] or equivalent), as defined in part 430,
subpart B, of this chapter; or
Subpart EQuality Step Increases (b) An employee who, when covered
by a performance appraisal program
SOURCE: 33 FR 12448, Sept. 4, 1968, unless that does not use a Level 5 summary
otherwise noted. (1) Receives a rating of record at the
highest summary level used by the pro-
531.501 Applicability. gram; and
This subpart contains regulations of (2) Demonstrates sustained perform-
the Office of Personnel Management to ance of high quality significantly
carry out section 5336 of title 5, United above that expected at the Fully Suc-
States Code, which authorizes the head cessful level in the type of position
of an agency, or another official to concerned, as determined under per-
whom such authority is delegated, to formance-related criteria established
grant quality step increases. by the agency.
[60 FR 43948, Aug. 23, 1995]
[60 FR 43948, Aug. 23, 1995]
531.505 Restrictions on granting
Agency means an agency defined in quality step increases.
As provided by 5 U.S.C. 5336, a qual-
Code.
Employee means an employee of an ity step increase may not be granted to
agency. an employee who has received a quality
Quality step increase is synonymous step increase within the preceding 52
with the term step increase used in consecutive calendar weeks.
section 5336 of title 5, United States [51 FR 8421, Mar. 11, 1986]
Code, and means an increase in an em-
ployees rate of basic pay from one step

or rate of the grade of his or her posi-
tion to the next higher step of that
408
531.506 Effective date of a quality et (OMB) in OMB Bulletin No. 1301,

step increase. plus any areas subsequently added to
The quality step increase should be the CSA by OMB.
made effective as soon as practicable Employee means
after it is approved. (1) An employee in a position to
which 5 U.S.C. chapter 53, subchapter
[60 FR 43948, Aug. 23, 1995]
III, applies, including a GM employee,
531.507 Agency responsibilities. and whose official worksite is located
in a locality pay area; and
(a) Agencies shall maintain and sub-
(2) An employee in a category of posi-
mit to OPM such records as OPM may
tions described in 5 U.S.C. 5304(h)(1)(A)
require.
(D) for which the President (or des-
(b) Agencies shall report quality step
ignee) has authorized locality-based
increases to the Central Personnel
comparability payments under 5 U.S.C.
Data File in compliance with instruc-
5304(h)(2) and whose official worksite is
tions in the OPM Operating Manual,
located in a locality pay area.
FEDERAL WORKFORCE REPORTING
SYSTEMS, for sale by the U.S. Govern- General Schedule or GS means the
ment Printing Office, Superintendent classification and pay system estab-
of Documents. lished under 5 U.S.C. chapter 51 and
subchapter III of chapter 53. It also re-
[60 FR 43948, Aug. 23, 1995] fers to the pay schedule of GS rates es-
tablished under 5 U.S.C. 5332, as ad-
531.508 Evaluation of quality step in- justed under 5 U.S.C. 5303 or other law
crease authority.
(including GS rates payable to GM em-
The Office of Personnel Management ployees). Law enforcement officers
may evaluate an agencys use of the (LEOs) receiving LEO special base
authority to grant quality step in- rates are covered by the GS classifica-
creases. The agency shall take any cor- tion and pay system, but receive higher
rective action required by the Office. base rates of pay in lieu of GS rates at
[60 FR 43948, Aug. 23, 1995] grades GS3 through GS10.
GM employee has the meaning given
Subpart FLocality-Based that term in 5 CFR 531.203.
Comparability Payments within the General Schedule, excluding
any LEO special base rate and addi-
SOURCE: 58 FR 69174, Dec. 30, 1993, unless tional pay of any kind such as locality
otherwise noted.
payments or special rate supplements.
EDITORIAL NOTE: Nomenclature changes to A rate payable to a GM employee is
subpart F of part 531 appear at 70 FR 31305, considered a GS rate.
May 31, 2005.
Law enforcement officer or LEO has
531.601 Purpose. the meaning given that term in 5 CFR
550.103.
This subpart contains Office of Per- LEO special base rate means a special
sonnel Management (OPM) regulations base rate established for GS law en-
implementing 5 U.S.C. 5304, which au- forcement officers at grades GS3
thorizes locality payments in defined through GS10 under section 403 of the
geographic areas for GS employees and Federal Employees Pay Comparability
other categories of employees to whom Act of 1990 (section 529 of Pub. L. 101
locality payments are extended. These 509, November 5, 1990, as amended)
regulations must be read together with which is used in lieu of a GS rate.
5 U.S.C. 5304.
Locality pay area means an area listed
[70 FR 31302, May 31, 2005] in 531.603 of this part, as established
and modified under 5 U.S.C. 5304 by the
531.602 Definitions. Pay Agent designated by the President
In this subpart: under 5 U.S.C. 5304(d)(1).
CSA means the geographic scope of a Locality payment means a locality-

Combined Statistical Area, as defined based comparability payment payable
by the Office of Management and Budg- under 5 U.S.C. 5304 and this subpart. An
409
531.602 5 CFR Ch. I (1116 Edition)
employees locality payment is the dif- Scheduled annual rate of pay means,
ference between the employees local- as applicable
ity rate and the employees scheduled (1) The annual GS rate payable to an
annual rate of pay. employee;
Locality pay percentage means the (2) An annual LEO special base rate;
percentage authorized for a locality or
pay area under 5 U.S.C. 5304 or 5304a (3) For an employee in a category of
which is used to compute a locality positions described in 5 U.S.C.
payment (before applying any max- 5304(h)(1)(A)(D) for which the Presi-
imum pay limitations under 531.606). dent (or designee) has authorized local-
Locality rate means a scheduled an- ity payments under 5 U.S.C. 5304(h)(2),
nual rate of pay plus an applicable lo- the annual rate of pay fixed by law or
cality payment. An employees locality administrative action, exclusive of any
rate is computed under 531.604. locality-based adjustments (including
MSA means the geographic scope of a adjustments equivalent to local special
Metropolitan Statistical Area, as de- rate supplements under 5 CFR part 530,
fined by the Office of Management and subpart C) or additional pay of any
Budget (OMB) in OMB Bulletin No. 13 other kind.
01, plus any areas subsequently added
Special rate means a rate of pay with-
to the MSA by OMB.
in a special rate schedule established
Official worksite means the official lo-
under 5 CFR part 530, subpart C, or a
cation of an employees position of
similar rate established under other
record as determined under 531.605.
legal authority (e.g., 38 U.S.C. 7455).
Position of record means an employ-
ees official position (defined by grade, The term special rate does not include
occupational series, employing agency, an LEO special base rate.
LEO status, and any other condition Special rate schedule means a pay
that determines coverage under a pay schedule established under 5 CFR part
schedule (other than official work- 530, subpart C, to provide higher rates
site)), as documented on the employ- of pay for specified categories of posi-
ees most recent Notification of Per- tions or employees at one or more
sonnel Action (Standard Form 50 or grades or levels or a similar schedule
equivalent) and current position de- established under other legal authority
scription. A position to which an em- (e.g., 38 U.S.C. 7455).
ployee is temporarily detailed is not Special rate supplement means the por-
documented as a position of record. For tion of a special rate paid above an em-
an employee whose change in official ployees scheduled annual rate of pay.
position is followed within 3 workdays However, for a law enforcement officer
by a reduction in force resulting in the receiving an LEO special base rate who
employees separation before he or she is also entitled to a special rate, the
is required to report for duty in the special rate supplement equals the por-
new position, the position of record in tion of the special rate paid above the
effect immediately before the position officers LEO special base rate. When a
change is deemed to remain the posi- special rate schedule covers both LEO
tion of record through the date of sepa- positions and other positions, the value
ration. of the special rate supplement will be
Rate range or range means a range of less for law enforcement officers re-
rates of basic pay for a grade within an ceiving an LEO special base rate (since
established pay schedule, excluding that rate is higher than the cor-
any retained rate. A rate range may responding GS rate). The payable
consist of GS rates, LEO special base amount of a special rate supplement is
rates, locality rates, special rates, or, subject to the Executive Schedule level
for non-GS employees, similar rates IV limitation on special rates, as pro-
under other legal authority. vided in 5 CFR 530.304(a).
Retained rate means a rate above the Telework agreement means a formal
maximum rate of the rate range appli- oral or written agreement between a
cable to the employee which is payable supervisor and an employee to permit

under 5 CFR part 536 or similar legal the employee to work at an alternative
authority. worksite (i.e., telework) instead of the
410
location of the employees assigned or- (11) Cleveland-Akron-Canton, OH

ganization. consisting of the Cleveland-Akron-Can-
ton, OH CSA and also including Har-
FR 67605, Dec. 30, 1994; 61 FR 3540, Feb. 1, rison County, OH;
1996; 62 FR 25425, May 9, 1997; 64 FR 69173, (12) Colorado Springs, COconsisting
Dec. 10, 1999; 66 FR 67070, Dec. 28, 2001; 68 FR of the Colorado Springs, CO MSA and
19708, Apr. 22, 2003; 69 FR 2050, Jan. 13, 2004; also including Fremont County, CO,
69 FR 75453, Dec. 17, 2004; 70 FR 31302, May 31, and Pueblo County, CO;
2005; 70 FR 74995, Dec. 19, 2005; 73 FR 66153, (13) Columbus-Marion-Zanesville,
Nov. 7, 2008; 76 FR 32862, June 7, 2011; 78 FR OHconsisting of the Columbus-Mar-
5115, Jan. 24, 2013; 80 FR 65610, Oct. 27, 2015]
ion-Zanesville, OH CSA;
531.603 Locality pay areas. (14) Dallas-Fort Worth, TXOKcon-
sisting of the Dallas-Fort Worth, TX
(a) Locality rates of pay under this OK CSA and also including Delta Coun-
subpart shall be payable to employees ty, TX, and Fannin County, TX;
whose official worksites are located in (15) Davenport-Moline, IAILcon-
the locality pay areas listed in para- sisting of the Davenport-Moline, IAIL
graph (b) of this section. CSA;
(b) The following are locality pay (16) Dayton-Springfield-Sidney, OH
areas for the purposes of this subpart: consisting of the Dayton-Springfield-
(1) Alaskaconsisting of the State of Sidney, OH CSA and also including
Alaska; Preble County, OH;
(2) Albany-Schenectady, NYcon- (17) Denver-Aurora, COconsisting of
sisting of the Albany-Schenectady, NY the Denver-Aurora, CO CSA and also
CSA and also including Berkshire including Larimer County, CO;
County, MA; (18) Detroit-Warren-Ann Arbor, MI
(3) Albuquerque-Santa Fe-Las Vegas, consisting of the Detroit-Warren-Ann
NMconsisting of the Albuquerque- Arbor, MI CSA;
Santa Fe-Las Vegas, NM CSA; (19) Harrisburg-Lebanon, PAcon-
(4) AtlantaAthens-Clarke County sisting of the Harrisburg-York-Leb-
Sandy Springs, GAALconsisting of anon, PA CSA, except for Adams Coun-
the AtlantaAthens-Clarke County ty, PA, and York County, PA, and also
Sandy Springs, GA CSA and also in- including Lancaster County, PA;
cluding Chambers County, AL; (20) Hartford-West Hartford, CT
(5) Austin-Round Rock, TXcon- MAconsisting of the Hartford-West
sisting of the Austin-Round Rock, TX Hartford, CT CSA and also including
MSA; Windham County, CT, Franklin Coun-
(6) Boston-Worcester-Providence, ty, MA, Hampden County, MA, and
MARINHCTMEconsisting of the Hampshire County, MA;
Boston-Worcester-Providence, MARI (21) Hawaiiconsisting of the State
NHCT CSA, except for Windham Coun- of Hawaii;
ty, CT, and also including (22) Houston-The Woodlands, TX
Androscoggin County, ME, Cumberland consisting of the Houston-The Wood-
County, ME, Sagadahoc County, ME, lands, TX CSA and also including San
and York County, ME; Jacinto County, TX;
(7) Buffalo-Cheektowaga, NYcon- (23) Huntsville-Decatur-Albertville,
sisting of the Buffalo-Cheektowaga, NY ALconsisting of the Huntsville-Deca-
CSA; tur-Albertville, AL CSA;
(8) Charlotte-Concord, NCSCcon- (24) Indianapolis-Carmel-Muncie,
sisting of the Charlotte-Concord, NC INconsisting of the Indianapolis-Car-
SC CSA; mel-Muncie, IN CSA and also including
(9) Chicago-Naperville, ILINWI Grant County, IN;
consisting of the Chicago-Naperville, (25) Kansas City-Overland Park-Kan-
ILINWI CSA; sas City, MOKSconsisting of the
(10) Cincinnati-Wilmington- Kansas City-Overland Park-Kansas
Maysville, OHKYINconsisting of City, MOKS CSA and also including
the Cincinnati-Wilmington-Maysville, Jackson County, KS, Jefferson County,

OHKYIN CSA and also including KS, Osage County, KS, Shawnee Coun-
Franklin County, IN; ty, KS, and Wabaunsee County, KS;
411
531.604 5 CFR Ch. I (1116 Edition)
(26) Laredo, TXconsisting of the (41) San Diego-Carlsbad, CAcon-

Laredo, TX MSA; sisting of the San Diego-Carlsbad, CA
(27) Las Vegas-Henderson, NVAZ MSA;
consisting of the Las Vegas-Henderson, (42) San Jose-San Francisco-Oakland,
NVAZ CSA; CAconsisting of the San Jose-San
(28) Los Angeles-Long Beach, CA Francisco-Oakland, CA CSA and also
consisting of the Los Angeles-Long including Monterey County, CA;
Beach, CA CSA and also including Kern (43) Seattle-Tacoma, WAconsisting
County, CA, and Santa Barbara Coun- of the Seattle-Tacoma, WA CSA and
ty, CA; also including Whatcom County, WA;
(29) Miami-Fort Lauderdale-Port St. (44) St. Louis-St. Charles-Farm-
Lucie, FLconsisting of the Miami-
ington, MOILconsisting of the St.
Fort Lauderdale-Port St. Lucie, FL
Louis-St. Charles-Farmington, MOIL
CSA and also including Monroe Coun-
CSA;
ty, FL;
(30) Milwaukee-Racine-Waukesha, (45) Tucson-Nogales, AZconsisting
WIconsisting of the Milwaukee- of the Tucson-Nogales, AZ CSA and
Racine-Waukesha, WI CSA; also including Cochise County, AZ;
(31) Minneapolis-St. Paul, MNWI (46) Washington-Baltimore-Arling-
consisting of the Minneapolis-St. Paul, ton, DCMDVAWVPAconsisting of
MNWI CSA; the Washington-Baltimore-Arlington,
(32) New York-Newark, NYNJCT DCMDVAWVPA CSA and also in-
PAconsisting of the New York-New- cluding Kent County, MD, Adams
ark, NYNJCTPA CSA and also in- County, PA, York County, PA, King
cluding all of Joint Base McGuire-Dix- George County, VA, and Morgan Coun-
Lakehurst; ty, WV; and
(33) Palm Bay-Melbourne-Titusville, (47) Rest of U.S.consisting of those
FLconsisting of the Palm Bay-Mel- portions of the United States and its
bourne-Titusville, FL MSA; territories and possessions as listed in
(34) Philadelphia-Reading-Camden, 5 CFR 591.205 not located within an-
PANJDEMDconsisting of the other locality pay area.
Philadelphia-Reading-Camden, PANJ
DEMD CSA, except for Joint Base
FR 42939, Aug. 19, 1996; 65 FR 75154, Dec. 1,
McGuire-Dix-Lakehurst; 2000; 70 FR 31302, May 31, 2005; 72 FR 34362,
(35) Phoenix-Mesa-Scottsdale, AZ June 22, 2007; 74 FR 49308, Sept. 28, 2009; 75 FR
consisting of the Phoenix-Mesa-Scotts- 60286, Sept. 30, 2010; 76 FR 32862, June 7, 2011;
dale, AZ MSA; 80 FR 65611, Oct. 27, 2015]
(36) Pittsburgh-New Castle-Weirton,
PAOHWVconsisting of the Pitts- 531.604 Determining an employees
burgh-New Castle-Weirton, PAOHWV locality rate.
CSA; (a) An annual locality rate consists
(37) Portland-Vancouver-Salem, OR of a scheduled annual rate of pay plus
WAconsisting of the Portland-Van- an applicable locality payment (rep-
couver-Salem, ORWA CSA; resenting an annual dollar amount), as
(38) Raleigh-Durham-Chapel Hill, determined under paragraph (b) of this
NCconsisting of the Raleigh-Durham-
section.
Chapel Hill, NC CSA and also including
(b) An agency determines an employ-
Cumberland County, NC, Hoke County,
NC, Robeson County, NC, Scotland ees locality rate by
County, NC, and Wayne County, NC; (1) Determining the employees offi-
(39) Richmond, VAconsisting of the cial worksite consistent with the rules
Richmond, VA MSA and also including in 531.605;
Cumberland County, VA, King and (2) Determining the locality pay area
Queen County, VA, and Louisa County, in which the employees official work-
VA; site is located, consistent with the lo-
(40) Sacramento-Roseville, CANV cality pay areas established in 531.603;
consisting of the Sacramento-Rose- (3) Identifying the locality pay per-

ville, CA CSA and also including Car- centage in effect in the applicable lo-
son City, NV, and Douglas County, NV; cality pay area;
412
(4) Increasing the employees sched- (d) For an employee covered by a

uled annual rate of pay by the applica- telework agreement, the following
ble locality pay percentage and round- rules apply:
ing the result to the nearest whole dol- (1) If the employee is scheduled to
lar (counting 50 cents and over as the work at least twice each biweekly pay
next higher dollar); and period on a regular and recurring basis
(5) Applying any applicable limita- at the regular worksite for the employ-
tion as described in 531.606. ees position of record, the regular
(c) A locality rate may be expressed worksite (where the employees work
as an hourly, daily, weekly, or bi- activities are based) is the employees
weekly rate, as provided in 531.607. official worksite. However, in the case
[70 FR 31303, May 31, 2005] of such an employee whose work loca-
tion varies on a recurring basis, the
531.605 Determining an employees employee need not work at least twice
official worksite. each biweekly pay period at the reg-
(a)(1) Except as otherwise provided in ular official worksite (where the em-
this section, the official worksite is the ployees work activities are based) as
location of an employees position of long as the employee is regularly per-
record where the employee regularly forming work within the locality pay
performs his or her duties. area for that worksite.
(2) If the employees work involves (2) An authorized agency official may
recurring travel or the employees make an exception to the twice-in-a-
work location varies on a recurring pay-period standard in paragraph (d)(1)
basis, the official worksite is the loca- of this section in appropriate situa-
tion where the work activities of the tions of a temporary nature, such as
employees position of record are the following:
based, as determined by the employing (i) An employee is recovering from an
agency, subject to the requirement injury or medical condition;
that the official worksite must be in a (ii) An employee is affected by an
locality pay area in which the em- emergency situation, which tempo-
ployee regularly performs work. rarily prevents the employee from
(3) An agency must document an em- commuting to his or her regular offi-
ployees official worksite on an em- cial worksite;
ployees Notification of Personnel Ac- (iii) An employee has an extended ap-
tion (Standard Form 50 or equivalent). proved absence from work (e.g., paid
(b) For an employee who is relocated leave);
and authorized to receive relocation (iv) An employee is in temporary
expenses under 5 U.S.C. chapter 57, sub- duty travel status away from the offi-
chapter II (or similar authority), the cial worksite; or
official worksite is the established (v) An employee is temporarily de-
worksite for the position in the area to tailed to work at a location other than
which the employee has been relocated. a location covered by a telework agree-
For an employee authorized to receive ment.
relocation expenses under 5 U.S.C. 5737 (3) If an employee covered by a
in connection with an extended assign- telework agreement does not meet the
ment resulting in a temporary change requirements of paragraphs (d)(1) or
of station, the worksite associated (d)(2) of this section, the employees of-
with the extended assignment is the official worksite is the location of the
ficial worksite. (See 41 CFR 3021.1.) employees telework site.
(c) For an employee whose assign- (4) An agency must determine a
ment to a new worksite is followed telework employees official worksite
within 3 workdays by a reduction in on a case-by-case basis. A determina-
force resulting in the employees sepa- tion made under this paragraph (d) is
ration before he or she is required to within the sole and exclusive discretion
report for duty at the new location, the of the authorized agency official, sub-
official worksite in effect immediately ject only to OPM review and oversight.
before the assignment remains the offi- (e) In applying paragraph (d) of this
cial worksite through the date of sepa- section for the purpose of other loca-
ration. tion-based pay entitlements under
413
531.606 5 CFR Ch. I (1116 Edition)
other regulations that refer to this sec- (i) The amount of the employees lo-
tion, the reference to a locality pay area cality rate on the day before paragraph
is deemed to be a reference to the ap- (b)(3) of this section was initially ap-
plicable geographic area associated plied; or
with the given pay entitlement. For ex- (ii) The rate for level IV of the Exec-
ample, for the purpose of special rates utive Schedule.
under 5 CFR part 530, subpart C, the (c) Paragraph (b) of this section does
reference to a locality pay area is not apply to experts and consultants
deemed to be a reference to the geo- appointed under 5 U.S.C. 3109 if the pay
graphic area covered by a special rate for those experts and consultants is
schedule. limited to the highest rate payable
[73 FR 66154, Nov. 7, 2008] under 5 U.S.C. 5332 (i.e., the unadjusted
maximum GS15 rate). Such experts
531.606 Maximum limits on locality and consultants are subject to the pay
rates. limitations established in 5 CFR
(a) Except as provided by paragraph 304.105.
(b) of this section, a locality rate may (d) A portion of a locality payment
not exceed the rate of basic pay pay- that is not payable because of an appli-
able for level IV of the Executive cable limitation is not considered in
Schedule. applying any other provision of law or
(b)(1) A locality rate for an employee regulation.
in a category of positions described in
5 U.S.C. 5304(h)(1)(A) and 5304(h)(1)(B) FR 32863, June 7, 2011]
may not exceed the rate for level III of
the Executive Schedule. 531.607 Computing hourly, daily,
(2) A locality rate for an employee in weekly, and biweekly locality rates.
a category of positions described in 5
(a) Apply the following methods to
U.S.C. 5304(h)(1)(C) may not exceed
(i) The rate for level III of the Execu- convert an annual locality rate to an
tive Schedule, when the positions are hourly, daily, weekly, or biweekly rate:
not covered by an appraisal system cer- (1) To derive an hourly rate, divide
tified under 5 U.S.C. 5307(d); or the annual locality rate by 2,087 and
(ii) The rate for level II of the Execu- round to the nearest cent, counting
tive Schedule, when the positions are one-half cent and over as the next
covered by an appraisal system cer- higher cent.
tified under 5 U.S.C. 5307(d). Example:
(3) A locality rate for an employee in Annual locality rate = $50,000
a category of positions described in 5 Computation of hourly rate: $50,000 2,087 =
U.S.C. 5304(h)(1)(D) may not exceed 23.957 or $23.96.
(i) The rate for level IV of the Execu-
(2) To derive a daily rate, multiply
tive Schedule, when the maximum
the hourly rate by the number of daily
scheduled annual rate of pay (excluding
hours of service required by the em-
any retained rate) for such positions is
ployees basic daily tour of duty.
less than or equal to the maximum
payable scheduled annual rate of pay Example:
for GS15; or Hourly rate = $23.96
(ii) The rate for level III of the Exec- Daily hours = 8
utive Schedule, when the maximum Computation of daily rate: $23.96 8 = $191.68
scheduled annual rate of pay (excluding (3) To derive a weekly or biweekly
any retained rate) for such positions rate, multiply the hourly rate by 40 or
exceeds the maximum payable sched- 80, as applicable.
uled annual rate of pay for GS15, but
is not more than the rate for level IV Example:
of the Executive Schedule. Hourly rate = $23.96
(4) If initial application of paragraph Biweekly hours = 80
(b)(3) of this section otherwise would Computation of biweekly rate: $23.96 80 =
$1,916.80
reduce an employees existing locality

rate, the employees locality rate is (b) Notwithstanding paragraph (a) of
capped at the higher of this section, for a firefighter whose pay
414
is computed under 5 U.S.C. 5545b, a fire- cality rate associated with a particular
fighter hourly locality rate is com- locality pay area under this subpart
puted using a divisor of 2,756 hours in- terminates on the date
stead of 2,087, as prescribed in 5 CFR (1) An employees official worksite is
part 550, subpart M. Also, such a fire- no longer in the locality pay area;
fighters weekly and biweekly locality (2) An employee is no longer in a po-
rates must be based on the firefighters sition covered by this subpart; or
extended tour of duty as prescribed in (3) An employee separates from Fed-
that subpart. eral service.
[70 FR 31304, May 31, 2005] (d) In the event of a change in the ge-
ographic coverage of a locality pay
531.608 Relationship of locality rates area, the effective date of any change
to other pay rates. in an employees entitlement to a lo-
(a) An employee must receive the cality rate of pay under this subpart is
greatest of the following rates of pay, the first day of the first pay period be-
as applicable ginning on or after the effective date
(1) The scheduled annual rate of pay indicated in the applicable final rule
payable to the employee; published in the FEDERAL REGISTER.
(2) A locality rate under this subpart; (e) As provided in 531.205, when an
(3) A special rate under 5 CFR part employee becomes covered by one or
530, subpart C, or a similar rate under more different pay schedule(s) because
other legal authority (e.g., 38 U.S.C. the employee is stationed at a new offi-
7455); or cial worksite in a different geographic
(4) A retained rate under 5 CFR part location, the employees pay (including
536 or a similar rate under other legal a locality rate) must first be converted
authority. to the applicable pay schedule(s) in the
(b) A GS employee receiving a special new location before applying any other
rate is entitled to any applicable local- pay action (other than a general pay
ity payment on the same basis as any adjustment).
other GS employee. The locality pay- [70 FR 31304, May 31, 2005, as amended at 72
ment is computed based on the employ- FR 34363, June 22, 2007; 78 FR 5115, Jan. 24,
ees scheduled annual rate of pay, 2013]
which excludes any special rate. The
employee is entitled to the higher of 531.610 Treatment of locality rate as
the locality rate or the corresponding basic pay.
special rate. As provided in 5 U.S.C. A locality rate is considered to be an
5305(h) and 5 CFR 530.303(d), when an employees rate of basic pay only for
employees locality rate exceeds a cor- the purpose of computing or applying
responding special rate, the employees (a) Retirement deductions, contribu-
entitlement to the special rate is ter- tions, and benefits under 5 U.S.C. chap-
minated. ters 83 and 84;
[70 FR 31304, May 31, 2005] (b) Life insurance premiums and ben-
efits under 5 U.S.C. chapter 87;
531.609 Adjusting or terminating lo- (c) Premium pay under 5 U.S.C. chap-
cality rates. ter 55, subchapter V, and 5 CFR part
(a) When an employees official work- 550, subparts A and I (including the
site is changed to a different locality computation of limitations on pre-
pay area, the employees entitlement mium pay);
to the locality rate for the new locality (d) Severance pay under 5 U.S.C. 5595
pay area begins on the effective date of and 5 CFR part 550, subpart G;
the change in official worksite. (e) Advances in pay under 5 U.S.C.
(b) A locality rate must be adjusted 5524a and 5 CFR part 550, subpart B;
as of the effective date of any change (f) Post differentials under 5 U.S.C.
in the applicable scheduled annual rate 5925(a) and danger pay allowances
of pay or any change in the applicable under 5 U.S.C. 5928 for an employee
locality percentage. temporarily working in a foreign area

(c) Except as provided in paragraph when the employees official worksite
(d) of this section, entitlement to a lo- is located in a locality pay area;
415
531.611 5 CFR Ch. I (1116 Edition)
(g) Nonforeign area cost-of-living al- time rate of pay, as defined in 5 CFR
lowances and post differentials under 5 551.512(b), for the purpose of overtime
U.S.C. 5941 and 5 CFR part 591, subpart pay computations under the Fair Labor
B; Standards Act of 1938, as amended.
(h) Recruitment, relocation, and re- (d) Consistent with 531.610, a reduc-
tention incentives, supervisory dif- tion or termination of a locality rate
ferentials, and extended assignment in- under 531.609 is not an adverse action
centives under 5 U.S.C. chapter 57, sub- for the purpose of 5 CFR part 752, sub-
chapter IV, and 5 CFR part 575; part D, or an action under 5 CFR
(i) Performance-based cash awards 930.211.
under 5 U.S.C. 4505a and 5 CFR part 451,
subpart A, when such awards are com- FR 66154, Nov. 7, 2008]
puted as a percentage of an employees
rate of basic pay;
(j) GS pay administration provisions Subpart G [Reserved]
(e.g., GS promotion provisions) to the
extent provided in subpart B of this PART 532PREVAILING RATE
part; SYSTEMS
(k) Pay administration provisions for
prevailing rate employees which con- Subpart AGeneral Provisions
sider rates of basic pay under the GS Sec.
pay system in setting pay (except as 532.101 Scope.
otherwise provided in 5 CFR part 532), 532.103 Coverage.
subject to the requirement that, if the 532.105 Pay-fixing authority.
employees actual locality rate would
not apply at the official worksite for Subpart BPrevailing Rate Determinations
the prevailing rate position, that local- 532.201 Definitions.
ity rate must be converted to a cor- 532.203 Structure of regular wage schedules.
responding rate on the locality rate 532.205 The use of Federal, State, and local
schedule for that official worksite; minimum wage requirements in deter-
(l) Lump-sum payments under 5 CFR mining prevailing rates.
part 550, subpart L, for accumulated 532.207 Time schedule for wage surveys.
and accrued annual leave; 532.209 Lead agency.
532.211 Criteria for establishing appro-
(m) Grade and pay retention under 5
priated fund wage areas.
U.S.C. chapter 53, subchapter VI, to the 532.213 Industries included in regular appro-
extent provided by 5 CFR part 536; priated fund wage surveys.
(n) Other provisions as specified in 532.215 Establishments included in regular
other statute or OPM regulations; and appropriated fund surveys.
(o) Payments or benefits equivalent 532.217 Appropriated fund survey jobs.
to those listed in this section under 532.219 Criteria for establishing non-
other legal authority, as determined by appropriated fund wage areas.
532.221 Industries included in regular non-
the head of the agency or other author-
appropriated fund surveys.
ized official responsible for admin- 532.223 Establishments included in regular
istering such payments or benefits. nonappropriated fund surveys.
[70 FR 31304, May 31, 2005, as amended at 70 532.225 Nonappropriated fund survey jobs.
FR 74996, Dec. 19, 2005; 73 FR 66154, Nov. 7, 532.227 Agency wage committee.
2008; 76 FR 68634, Nov. 7, 2011] 532.229 Local wage survey committee.
532.231 Responsibilities of participating or-
531.611 Miscellaneous provisions. ganizations.
532.233 Preparation for full-scale wage sur-
(a) A locality rate may be paid only veys.
for those hours for which an employee 532.235 Conduct of full-scale wage survey.
is in a pay status. 532.237 Review by the local wage survey
(b) Payment of, or an increase in, a committee.
locality rate is not an equivalent in- 532.239 Review by the lead agency.
532.241 Analysis of usable wage survey data.
crease in pay within the meaning of 5
532.243 Consultation with the agency wage
U.S.C. 5335. (See 531.407(c).) committee.
(c) A locality rate is included in an 532.245 Selection of payline and issuance of

employees total remuneration, as de- wage schedules.
fined in 5 CFR 551.511(b), and straight 532.247 Wage change surveys.
416
532.249 Minimum rates for hard-to-fill posi- Subpart CDetermining Rates for Principal
tions. Types of Federal Positions
532.251 Special rates.
532.253 Special rates or rate ranges for lead- 532.301 Definitions.
er, supervisory, and production facili- 532.303 Specialized industry.
tating positions. 532.305 Dominant industry.
532.254 Special schedules. 532.307 Determining whether a dominant in-
532.255 Regular appropriated fund wage dustry exists in a wage area.
schedules in foreign areas. 532.309 Determining adequacy of specialized
private industry.
532.257 Regular nonappropriated fund wage
532.311 Survey of specialized private indus-
schedules in foreign areas.
try related to a dominant industry.
532.259 Special appropriated fund wage 532.313 Private sector industries.
schedules for U.S. insular areas. 532.315 Additional survey jobs.
532.261 Special wage schedules for leader 532.317 Use of data from the nearest similar
and supervisory schedules for leader and area.
supervisory wage employees in the Puer-
to Rico wage area. Subpart DPay Administration
532.263 Special wage schedules for produc-
tion facilitating positions. 532.401 Definitions.
532.265 Special wage schedules for appren- 532.403 New appointments.
tices and shop trainees. 532.405 Use of highest previous rate.
532.267 Special wage schedules for aircraft, 532.407 Promotion.
electronic, and optical instrument over- 532.409 Grading or regrading of positions.
532.411 Details.
haul and repair positions in Puerto Rico.
532.413 Simultaneous action.
532.269 Special wage schedules for Corps of
532.415 Application of new or revised wage
Engineers, U.S. Army navigation lock schedules.
and dam employees. 532.417 Within-grade increases.
532.271 Special wage schedules for National 532.419 Grade and pay retention.
Park Service positions in overlap areas.
532.273 Special wage schedules for United Subpart EPremium Pay and Differentials
States Information Agency Radio An-
tenna Rigger positions. 532.501 Definitions.
532.275 Special wage schedules for ship sur- 532.503 Overtime pay.
veyors in Puerto Rico. 532.504 Compensatory time off.
532.277 Special wage schedules for U.S. Navy 532.505 Night shift differentials.
positions in Bridgeport, California. 532.507 Pay for holiday work.
532.509 Pay for Sunday work.
532.281 Special wage schedules for divers
532.511 Environmental differentials.
and tenders.
532.513 Flexible and compressed work sched-
532.283 Special wage schedules for non- ules.
appropriated fund tipped employees clas-
sified as waiter/waitress. APPENDIX A TO SUBPART E OF PART 532
SCHEDULE OF ENVIRONMENTAL DIFFEREN-
532.285 Special wage schedules for super-
TIALS PAID FOR EXPOSURE TO VARIOUS DE-
visors of negotiated rate Bureau of Rec-
GREES OF HAZARDS, PHYSICAL HARDSHIPS,
lamation employees.
AND WORKING CONDITIONS OF AN UNUSUAL
532.287 Special wage schedules for non- NATURE
appropriated fund automotive mechan-
ics. Subpart FJob Grading System
532.289 Special wage schedules for U.S.
Army Corps of Engineers flood control 532.601 General.
employees of the Vicksburg District in
Mississippi. Subpart GJob Grading Reviews and
APPENDIX A TO SUBPART B OF PART 532NA- Appeals
TIONWIDE SCHEDULE OF APPROPRIATED
532.701 General.
FUND REGULAR WAGE SURVEYS
532.703 Agency review.
APPENDIX B TO SUBPART B OF PART 532NA- 532.705 Appeal to the Office of Personnel
TIONWIDE SCHEDULE OF NONAPPROPRIATED
Management.
FUND REGULAR WAGE SURVEYS 532.707 Availability of information.
APPENDIX C TO SUBPART B OF PART 532AP-
PROPRIATED FUND WAGE AND SURVEY Subpart HPayment of Unrestricted Rates
AREAS for Recruitment or Retention Purposes
APPENDIX D TO SUBPART B OF PART 532NON-

APPROPRIATED FUND WAGE AND SURVEY 532.801 Payment of unrestricted rates for re-
AREAS cruitment or retention purposes.
417
532.101 5 CFR Ch. I (1116 Edition)
AUTHORITY: 5 U.S.C. 5343, 5346; 532.707 also establishments included in the wage
issued under 5 U.S.C. 552. survey are located.
SOURCE: 46 FR 21344, Apr. 10, 1981, unless Wage area means that geographic
otherwise noted. area within which a single set of reg-
ular wage schedules is applied uni-
Subpart AGeneral Provisions formly by Federal installations to cov-
ered occupations.
532.101 Scope. Wage change survey means a survey in
This part provides common policies, which rate change data are collected
systems, and practices for uniform ap- from the same establishments and for
plication by all agencies subject to sec- the same establishment occupations
tion 5342 of title 5, United States Code, represented in the full-scale survey.
in fixing pay for prevailing rate em- These data may be collected by tele-
ployees as nearly as is consistent with phone, mail, or personal visit.
the public interest in accordance with 532.203 Structure of regular wage
prevailing rates. schedules.
532.103 Coverage. (a) Each nonsupervisory and leader
regular wage schedule shall have 15
The provisions of this part shall
grades, which shall be designated as
apply to prevailing rate employees and
follows:
agencies covered by section 5342 of title
(1) WG means an appropriated fund
5, United States Code.
nonsupervisory grade;
532.105 Pay-fixing authority. (2) WL means an appropriated fund
leader grade;
The head of each agency shall au- (3) NA means a nonappropriated fund
thorize application of the rates estab- nonsupervisory grade; and
lished by the lead agency or the Office (4) NL means a nonappropriated fund
of Personnel Management (OPM) to leader grade.
prevailing rate employees within the (b) Each supervisory regular wage
appropriate wage area, in accordance schedule shall have 19 grades, which
with the provisions of this part. shall be designated as follows:
(1) WS means an appropriated fund
Subpart BPrevailing Rate supervisory grade; and
Determinations (2) NS means a nonappropriated fund
supervisory grade.
532.201 Definitions. (c) The step 2 or payline rate for each
For the purposes of this part: grade of a leader regular wage schedule
Full-scale survey means a survey con- shall be equal to 110 percent of the rate
ducted at least every 2 years in which for step 2 of the corresponding grade of
data are collected from a current sam- the nonsupervisory regular wage sched-
pling of establishments in the private ule for the area.
sector by personal visit of data collec- (d) The step 2 or payline rate for each
tors. grade of an appropriated fund super-
Host activity is the local Federal ac- visory regular wage schedule shall be:
tivity designated by the lead agency to (1) For grades WS1 through WS10,
obtain employment statistics from equal to the rate for step 2 of the cor-
other Federal activities in the wage responding grade of the nonsupervisory
area and to provide support facilities regular wage schedule for the area,
and clerical assistance for the wage plus 30 percent of the rate for step 2 of
survey. WG10;
Lead agency means the agency des- (2) For grades WS11 through WS18,
ignated by the Office of Personnel the second rate of WS10, plus 5, 11.5,
Management to plan and conduct wage 19.6, 29.2, 40.3, 52.9, 67.1, and 82.8 per-
surveys, analyze wage survey data, and cent, respectively, of the difference be-
determine and issue required wage tween the step 2 rates of WS10 and
schedules for a wage area. WS19; and

Survey area means that part of the (3) For grade WS19, the third rate in
wage area where the private enterprise effect for General Schedule grade GS
418
14 at the time of the area wage sched- est Federal industry/occupation in the
ule adjustment. The WS19 rate shall wage area.
include any cost of living allowance (b) Wage data below the minimum
payable for the area under 5 U.S.C. wage rates prescribed by section 6(a)(1)
5941. of the Fair Labor Standards Act of
(e) The step 2 or payline rate for each 1938, as amended, shall not be used in
grade of a nonappropriated fund super- determining prevailing rates.
visory regular wage schedule shall be: (c) Adjustments to regular wage
(1) For grades NS1 through NS8, schedules to comply with the minimum
equal to the rate for step 2 of the cor- wage rate determined to be applicable
responding grade of the nonsupervisory under paragraph (a) of this section
regular wage schedule for the area, shall be computed as follows:
plus 20 percent of the rate for step 2 of (1) The step 2 rate of grade 1 of the
NA8; nonsupervisory wage schedule shall be
(2) For grades NS9 through NS15, set at a rate which, upon application of
equal to 120 percent of the rate for step the 4 percent step-rate differential,
2 of the corresponding grade of the non- provides a step 1 rate which is equal to
supervisory regular wage schedule for the applicable minimum wage rate.
the area; (2) An intergrade differential shall be
(3) For grades NS16 through NS19, determined as 5 percent of the rate es-
the rates will be 25, 30, 35 and 40 per- tablished as the step 2 rate of grade 1,
cent, respectively, above the step 2 rate rounded to the nearest whole cent.
of NA15; This intergrade differential shall be
(f) The number of within-grade steps added to the step 2 rate of each grade,
and the differentials between steps for beginning with grade 1, to determine
each nonsupervisory grade on a regular the step 2 rate for the succeeding grade
wage schedule shall be established in until the grade is reached at which the
accordance with 5 U.S.C. 5343(e)(1). step 2 rate established through the
Each grade on a leader and supervisory wage survey process equals or exceeds
regular wage schedule shall have 5 the rate determined under this proce-
within-grade steps with step 2 set ac- dure. Rates of all grades above that
cording to paragraphs (c), (d), or (e) of point shall be computed in accordance
this section, as appropriate, and with 532.221(b) of this subpart.
(1) Step 1 set at 96 percent of the step (3) Steps 1, 3, 4, and 5 of each grade
2 rate; adjusted under paragraph (c) of this
(2) Step 3 set at 104 percent of the section shall be set at 96, 104, 108, and
step 2 rate; 112 percent of the step 2 rate, respec-
(3) Step 4 set at 108 percent of the tively.
step 2 rate; and (4) The leader and supervisory wage
(4) Step 5 set at 112 percent of the schedule grades corresponding to each
step 2 rate. nonsupervisory grade adjusted under
paragraph (c) of this section shall be
FR 13385, Mar. 30, 1983; 49 FR 28347, July 11, constructed in accordance with the
1984; 55 FR 46140, Nov. 1, 1990] procedures of 532.203 of this subpart,
on the basis of the step 2 rates estab-
532.205 The use of Federal, State, lished under this paragraph for the
and local minimum wage require- nonsupervisory wage schedule grades.
ments in determining prevailing (d) All wage schedule adjustments
rates. made under this section shall be effec-
(a) Wage schedules, including special tive on the effective date of the appli-
schedules, shall not include any rates cable minimum wage rate.
of pay less than the higher of:
(1) The minimum rate prescribed by 532.207 Time schedule for wage sur-
section 6(a)(1) of the Fair Labor Stand- veys.
ards Act of 1938, as amended, or (a) Wage surveys shall be conducted
(2) The highest State or local min- on a 2-year cycle at annual intervals.
imum wage rate in the local wage area (b) A full-scale survey shall be made
which is applicable to the private in- in the first year of the 2-year cycle and
dustry counterparts of the single larg- shall include development of a current
419
532.209 5 CFR Ch. I (1116 Edition)
sample of establishments and the col- for each nonappropriated fund wage
lection of wage data by visits to estab- area.
lishments.
[55 FR 46141, Nov. 1, 1990]
(c) A wage-change survey shall be
made every other year using only the 532.211 Criteria for establishing ap-
same employers, occupations, survey propriated fund wage areas.
jobs, and establishment weights used in
the preceding full-scale survey. Data (a) Each wage area shall consist of
may be collected by telephone, mail, or one or more survey areas along with
personal contact. nonsurvey areas, if any.
(d) Scheduling of surveys shall take (1) Survey area: A survey area is com-
into consideration the following cri- posed of the counties, parishes, cities,
teria: or townships in which survey data are
collected. Except in very unusual cir-
(1) The best timing in relation to
cumstances, a wage area that includes
wage adjustments in the principal local
a Metropolitan Statistical Area shall
private enterprise establishments;
have the Metropolitan Statistical Area
(2) Reasonable distribution of work-
as the survey area or part of the survey
load of the lead agency;
area.
(3) The timing of surveys for nearby
(2) Nonsurvey area: Nonsurvey coun-
or selected wage areas; and
ties, parishes, cities, or townships may
(4) Scheduling relationships with
be combined with the survey area(s) to
other pay surveys.
form the wage area through consider-
(e) The Office of Personnel Manage-
ation of the criteria in paragraph (d)(1)
ment may authorize adjustments in
of this section.
the normal cycle as requested by the
(b) Wage areas shall include wherever
lead agency and based on the criteria
possible a recognized economic commu-
in paragraph (d) of this section or to
nity such as a Metropolitan Statistical
accommodate special studies or adjust-
Area or a political unit such as a coun-
ments consistent with determining
ty. Two or more economic commu-
local prevailing rates.
nities or political units, or both, may
(f) The beginning month of appro-
be combined to constitute a single
priated and nonappropriated fund wage
wage area; however, except in unusual
surveys and the fiscal year during
circumstances and as an exception to
which full-scale surveys will be con-
the criteria, an individually defined
ducted are set out as appendices A and
Metropolitan Statistical Area or coun-
B to this subpart and are incorporated
ty shall not be subdivided for the pur-
in and made part of this section.
pose of defining a wage area.
[55 FR 46141, Nov. 1, 1990] (c) Except as provided in paragraph
(a) of this section, wage areas shall be
532.209 Lead agency. established when:
(a) The Office of Personnel Manage- (1) There is a minimum of 100 wage
ment shall select a lead agency for employees of one agency subject to the
each appropriated and nonappropriated regular schedule and the agency in-
fund wage area based on the number of volved indicates that its local installa-
agency employees covered by the reg- tion has the capacity to do the survey;
ular wage schedule for that area and and
the capability of the agency in pro- (2) There is, within a reasonable com-
viding administrative and clerical sup- muting distance of the concentration
port at the local level necessary to con- of Federal employment;
duct a wage survey. (i) A minimum of either 20 establish-
(b) OPM may authorize exceptions to ments within survey specifications
these criteria where this will improve having at least 50 employees each; or 10
the administration of the local wage establishments having at least 50 em-
survey. ployees each, with a combined total of
(c) The listing in appendix A to this 1,500 employees; and
subpart shows the lead agency for each (ii) The total private enterprise em-
appropriated fund wage area. The De- ployment in the industries surveyed in
partment of Defense is the lead agency the survey area is at least twice the
420
Federal wage employment in the sur- ments, the proximity of the survey
vey area. areas to each other, and the extent of
(d)(1) Adjacent economic commu- economic similarites or differences as
nities or political units meeting the indicated by relative levels of wage
separate wage area criteria in para- rates in each of the potential survey
graphs (b) and (c) of this section may areas.
be combined through consideration of: (e) Appropriated fund wage and sur-
(i) Distance, transportation facili- vey area definitions are set out as ap-
ties, and geographic features; pendix C to this subpart and are incor-
(ii) Commuting patterns; and porated in and made part of this sec-
(iii) Similarities in overall popu- tion.
lation, employment, and the kinds and [55 FR 46142, Nov. 1, 1990, as amended at 57
sizes of private industrial establish- FR 29783, July 7, 1992]
ments.
(2) Generally, the criteria listed in 532.213 Industries included in reg-
paragraph (d)(1) of this section are con- ular appropriated fund wage sur-
sidered in the order listed. veys.
(3) When two wage areas are com- (a) The lead agency must include the
bined, the survey area of either or both industries in the following North
may be used, depending on the con- American Industry Classification Sys-
centrations of Federal and private em- tem (NAICS) codes in all regular appro-
ployment and locations of establish- priated fund wage surveys:
2012 NAICS codes 2012 NAICS industry titles
311 through 339 (except All manufacturing classes except printing and related support activities (NAICS 323).
323).
221 .................................. Utilities.
481 .................................. Air transportation.
482 .................................. Rail transportation.
484 .................................. Truck transportation.
485 (except 4853) .......... Transit and ground passenger transportation except taxi and limousine service (NAICS 4853).
487 (except 4872) .......... Scenic and sightseeing transportation except scenic and sightseeing transportation, water (NAICS
4872).
488 (except 4883 and Support activities for transportation except support activities for water transportation (NAICS 4883)
4884). and support activities for road transportation (NAICS 4884).
492 .................................. Couriers and messengers.
493 .................................. Warehousing and storage.
515 .................................. Broadcasting (except Internet).
517 .................................. Telecommunications.
5621 ................................ Waste collection.
5622 ................................ Waste Treatment and Disposal.
423 .................................. Merchant wholesalers, durable goods.
424 .................................. Merchant wholesalers, nondurable goods.
(b) A lead agency may add other in- 532.215 Establishments included in
dustry classes to a regular survey in an regular appropriated fund surveys.
area where these industries account for
(a) All establishments having a total
significant proportions of local private
employment of 50 or more employees in
employment of the kinds and levels
the prescribed industries within a sur-
found in local Federal employment.
vey area shall be included within the
(c) Specifically excluded from all
wage surveys for regular wage sched- survey universe. On rare occasions and
ules are food service and laundry estab- as an exception to the rule, OPM may
lishments and industries having pecu- authorize lower minimum size levels
liar employment conditions that di- based on a recommendation of the lead
rectly affect the wage rates paid and agency for the wage area.
that are the basis for special wage sur- (b) Establishments to be covered in
veys. surveys shall be selected under stand-
ard probability sample selection proce-

FR 35373, June 20, 2006; 73 FR 45853, Aug. 7,
dures. In areas with relatively few es-
2008; 78 FR 58153, Sept. 23, 2013] tablishments, surveys shall cover all
421
532.217 5 CFR Ch. I (1116 Edition)
establishments within the prescribed Job title Job

industry and size groups. grade
(c) A lead agency may not delete Meat Cutter ................................................................ 8
from a survey an establishment prop- Equipment Mechanic ................................................. 10
erly included in an establishment list Boom Crane Operator ............................................... 9
Boom Crane Operator (Precision) ............................. 11
drawn under statistical sampling pro- Tool and Parts Attendant .......................................... 4
cedures. Painter (Rough) ......................................................... 7
Electronic Industrial Controls Mechanic .................... 11
[55 FR 46142, Nov. 1, 1990] Electronic Test Equipment Repairer ......................... 11
Electronic Computer Mechanic ................................. 11
532.217 Appropriated fund survey Television Station Mechanic ...................................... 11
jobs. Maintenance Mechanic .............................................. 10
(a) A lead agency shall survey the (d) A lead agency may add the fol-
following required jobs: lowing survey jobs to the survey when
Job the Hospital industry is included in the
Job title grade survey:
Janitor (Light) ............................................................. 1 Job
Janitor (Heavy) .......................................................... 2 Job title grade
Material Handler ........................................................ 2
Maintenance Laborer ................................................. 3 Laundry Worker ......................................................... 1
Packer ........................................................................ 4 Food Service Worker ................................................. 2
Warehouse Worker .................................................... 5 Cook .......................................................................... 8
Forklift Operator ......................................................... 5
Material Handling Equipment Operator ..................... 5
Truckdriver (Medium) ................................................ 6
(e) A lead agency must obtain prior
Truckdriver (Heavy) ................................................... 7 approval of OPM to add a job not au-
Machine Tool Operator II .......................................... 8 thorized under paragraph (a), (c), or (d)
Machine Tool Operator I ........................................... 9 of this section.
Carpenter ................................................................... 9
Electrician .................................................................. 10 [55 FR 46142, Nov. 1, 1990, as amended at 64
Automotive Mechanic ................................................ 10 FR 69183, Dec. 10, 1999; 68 FR 460, Jan. 6, 2003;
Sheet Metal Mechanic ............................................... 10
Pipefitter ..................................................................... 10 69 FR 26475, May 13, 2004]
Welder ....................................................................... 10
Machinist .................................................................... 10 532.219 Criteria for establishing non-
Electronics Mechanic ................................................. 11 appropriated fund wage areas.
Toolmaker .................................................................. 13
(a) Each wage area shall consist of
(b) A lead agency may not omit a re- one or more survey areas along with
quired survey job from a regular sched- nonsurvey areas, if any, having non-
ule wage survey. appropriated fund employees.
(c) A lead agency may survey the fol- (1) Survey area: A survey area is com-
lowing jobs on an optional basis: posed of the counties, parishes, cities,
or townships in which survey data are
Job title Job collected.
grade
(2) Nonsurvey area: Nonsurvey coun-
Aircraft Structures Assembler B ................................ 7 ties, parishes, or townships may be
Aircraft Structures Assembler A ................................ 9 combined with the survey area to form
Aircraft Mechanic ....................................................... 10
Electrician, Ship ......................................................... 10
the wage area through consideration of
Pipefitter, Ship ........................................................... 10 the criteria in paragraph (c) of this sec-
Shipfitter ..................................................................... 10 tion.
Shipwright .................................................................. 10
Machinist, Marine ...................................................... 10
(b) Wage areas shall be established
Cable Splicer (Electric) .............................................. 10 when:
Electrical Lineman ..................................................... 10 (1) There is a minimum of 26 NAF
Electrician (Powerplant) ............................................. 10 wage employees in the survey area and
Telephone Installer-Repairer ..................................... 9
Central Office Repairer .............................................. 11 local activities have the capability to
Heavy Mobile Equipment Mechanic .......................... 10 do the survey; and
Heavy Mobile Equipment Operator ........................... 10 (2) There is within the survey area a
Air Conditioning Mechanic ......................................... 10
Rigger ........................................................................ 10
minimum of 1,800 private enterprise
Trailer Truck Driver .................................................... 8 employees in establishments within
Tool Crib Attendant ................................................... 6 survey specifications.
Painter (Finish) .......................................................... 9
(c)(1) Two or more counties may be

Light Vehicle Operator ............................................... 5
Helper (Trades) ......................................................... 5 combined to constitute a single wage
Boiler Plant Operator ................................................. 10 area through consideration of:
422
(i) Proximity of largest activity in as appendix D to this subpart and are

each county; incorporated in and made part of this
(ii) Transportation facilities and section.
commuting patterns; and
(iii) Similarities of the counties in: [55 FR 46143, Nov. 1, 1990, as amended at 57
(A) Overall population; FR 29783, July 7, 1992]
(B) Private employment in major in-
532.221 Industries included in reg-
dustry categories; and
ular nonappropriated fund surveys.
(C) Kinds and sizes of private indus-
trial establishments. (a) The lead agency must include the
(2) Generally, the criteria listed in following North American Industry
paragraph (c)(1) of this section are con- Classification System (NAICS) codes in
sidered in the order listed. all regular nonappropriated fund wage
(d) The nonappropriated fund wage surveys:
and survey area definitions are set out
42312 .............................. Motor vehicle supplies and new parts merchant wholesalers.
4232 ................................ Furniture and home furnishing merchant wholesalers.
42362 .............................. Electrical and electronic appliance, television, and radio set merchant wholesalers.
42369 .............................. Other electronic parts and equipment merchant wholesalers.
42371 .............................. Hardware merchant wholesalers.
42391 .............................. Sporting and recreational goods and supplies merchant wholesalers.
42399 .............................. Other miscellaneous durable goods merchant wholesalers.
4241 ................................ Paper and paper product merchant wholesalers.
42421 .............................. Drugs and druggists sundries merchant wholesalers.
4243 ................................ Apparel, piece goods, and notions merchant wholesalers.
42445 .............................. Confectionery merchant wholesalers.
4247 ................................ Petroleum and petroleum products merchant wholesalers.
4249 ................................ Miscellaneous nondurable goods merchant wholesalers.
44132 .............................. Tire dealers.
443 .................................. Electronics and appliance stores.
44411 .............................. Home centers.
44611 .............................. Pharmacies and drug stores.
4471 ................................ Gasoline stations.
44814 .............................. Family clothing stores.
4521 ................................ Department stores.
45299 .............................. All other general merchandise stores.
45321 .............................. Office supplies and stationery stores.
4542 ................................ Vending machine operators.
71391 .............................. Golf courses and country clubs.
71395 .............................. Bowling centers.
72111 .............................. Hotels (except casino hotels) and motels.
7224 ................................ Drinking places (alcoholic beverages).
7225 ................................ Restaurants and other eating places.
(b) A lead agency may add other in- 532.223 Establishments included in
dustry classes from within the whole- regular nonappropriated fund sur-
sale, retail, and service industry divi- veys.
sions in an area where these industries (a) All establishments having 20 or
account for significant proportions of more employees in the prescribed in-
local private employment of the kinds dustries within a survey area must be
and levels found in local NAF employ- included in the survey universe. Estab-
ment. lishments in NAICS codes 4471, 4542,
(c) Additional industries shall be de- 71391, and 71395 must be included in the
fined in terms of entire industry class- survey universe if they have eight or
es (fourth digit breakdown). more employees.
[55 FR 46143, Nov. 1, 1990, as amended at 71 (b) Establishment selection proce-
FR 35374, June 20, 2006; 73 FR 45853, Aug. 7, dures are the same as those prescribed
2008; 78 FR 58153, Sept. 23, 2013]
423
532.225 5 CFR Ch. I (1116 Edition)
for appropriated fund surveys in para- lishment of wage schedules and making
graphs (b) and (c) of 532.213 of this recommendations thereon to the lead
subpart. agency.
[55 FR 46143, Nov. 1, 1990, as amended at 71 (b) The Agency Wage Committee
FR 35374, June 20, 2006] shall consist of five members, with the
chairperson and two members des-
532.225 Nonappropriated fund sur- ignated by the head of the lead agency,
vey jobs. and the remaining two members des-
(a) A lead agency shall survey the ignated as follows:
following required jobs: (1) For the Department of Defense
Job Wage Committee, one member shall be
Job title grade designated by each of the two labor or-
Janitor (Light) ............................................................. 1 ganizations having the largest number
Food Service Worker ................................................. 1 of wage employees covered by exclusive
Food Service Worker ................................................. 2 recognition in the Department of De-
Fast Food Worker ...................................................... 2
Janitor ........................................................................ 2 fense; and
Laborer (Light) ........................................................... 2 (2) For other lead agencies, two mem-
Laborer (Heavy) ......................................................... 3
Service Station Attendant .......................................... 3
bers shall be designated by the labor
Stock Handler ............................................................ 4 organization having the largest num-
Short Order Cook ...................................................... 5 ber of wage employees by exclusive rec-
Materials Handling Equipment Operator ................... 5
Warehouseman ......................................................... 5 ognition in the agency.
Service Station Attendant .......................................... 5 (c) Recommendations of agency wage
Truck Driver (Light) .................................................... 5 committees shall be developed by ma-
Truck Driver (Medium) ............................................... 6
Truck Driver (Heavy) ................................................. 7 jority vote. Any member of an agency
Cook .......................................................................... 8 wage committee may submit a minor-
Carpenter ................................................................... 9
Painter ....................................................................... 9
ity report to the lead agency along
Automotive Mechanic ................................................ 10 with the recommendations of the com-
Electrician .................................................................. 10 mittee.
(b) A lead agency may not omit a re- [46 FR 21344, Apr. 10, 1981. Redesignated at 55
quired survey job from a regular sched- FR 46141, Nov. 1, 1990]
ule wage survey.
(c) A lead agency may survey the fol- 532.229 Local wage survey com-
mittee.
lowing jobs on an optional basis:
(a)(1) A lead agency shall establish a
Job
Job title grade local wage survey committee in each
wage area for which it has lead agency
Service Station Attendant .......................................... 1
Groundskeeper .......................................................... 4
responsibility and in which a labor or-
Grill Attendant ............................................................ 4 ganization represents, by exclusive rec-
Tractor Operator ........................................................ 6 ognition, wage employees subject to
Bowling Equipment Mechanic ................................... 7
Building Maintenance Worker ................................... 7
the wage schedules for which the sur-
Vending Machine Mechanic ...................................... 8 vey is conducted.
Building Maintenance Worker ................................... 8 (2) The local wage survey committee
Air Conditioning Equipment Mechanic ...................... 8
Truck Driver (Trailer) ................................................. 8 shall assist the lead agency in the con-
Air Conditioning Equipment Mechanic ...................... 10 duct of wage surveys and make rec-
ommendations to the lead agency
(d) A lead agency must obtain prior thereon.
approval of OPM to add a job not listed (b)(1) Local wage survey committees
under paragraph (a) or (c) of this sec- shall consist of three members, with
tion. the chairperson and one member rec-
[55 FR 46143, Nov. 1, 1990] ommended by Federal agencies and
designated by the lead agency, and one
532.227 Agency wage committee. member recommended by the labor or-
(a) Each lead agency shall establish ganization having the largest number
an agency wage committee for the pur- of wage employees under the regular
pose of considering matters relating to wage schedule who are under exclusive
the conduct of wage surveys, the estab- recognition in the wage area.
424
(2) All members of local wage survey ganization until the next full-scale sur-
committees for appropriated fund survey.
veys shall be Federal employees ap- (d) Recommendations of local wage
pointed by their employing agencies. survey committees shall be developed
(3) Members for nonappropriated fund by majority vote. Any member of a
surveys shall be nonappropriated fund local wage survey committee may sub-
employees appointed by their employ- mit a minority report to the lead agen-
ing agencies. cy relating to any local wage survey
(4) The member recommended by the committee majority recommendation.
labor organization must be an em-
(e) The lead agency shall establish
ployee of a Federal activity for appro-
the type of local wage survey organiza-
priated fund surveys or non-
appropriated fund activity for non- tion it considers appropriate in a wage
appropriated fund surveys who is cov- area which does not qualify for a local
ered by one of the regular wage sched- wage survey committee under para-
ules in the wage area in which the ac- graph (a) of this section.
tivity is located. [46 FR 21344, Apr. 10, 1981, as amended at 55
(5) In selecting and appointing em- FR 46140, Nov. 1, 1990. Redesignated at 55 FR
ployees recommended by labor organi- 46141, Nov. 1, 1990; 58 FR 15415, Mar. 23, 1993]
zations and by Federal agencies to
serve as committee members, consider- 532.231 Responsibilities of partici-
ation shall be given to the requirement pating organizations.
in the prevailing rate law for labor and (a) The Office of Personnel Manage-
agency representatives to participate ment:
in the wage survey process, the quali-
(1) Defines the boundaries of wage
fications of the recommended employ-
and survey areas;
ees, the need of the employees work
units for their presence on the job, and (2) Prescribes the required industries
the prudent management of available to be surveyed;
financial and human resources. Em- (3) Prescribes the required job cov-
ploying agencies and activities shall erage for surveys;
cooperate and appoint the rec- (4) Designates a lead agency for each
ommended employees unless excep- wage area;
tional circumstances prohibit their (5) Establishes, jointly with lead
consideration. When the recommended agencies, a nationwide schedule of
employees cannot be appointed to serve wage surveys;
as local wage survey committee mem- (6) Arranges for technical services
bers, the responsible lead agency or with other Government agencies;
labor organization shall provide addi- (7) Considers recommendations of the
tional recommendations expeditiously national headquarters of any agency or
to avoid any delay in the survey proc- labor organization relating to the Of-
ess. fice of Personnel Managements re-
(6) Employers shall cooperate and responsibilities for the Federal Wage
lease appointed employees for com- System; and
mittee proceedings unless the employ-
(8) Establishes wage schedules and
ers can demonstrate that exceptional
rates for prevailing rate employees who
circumstances directly related to the
accomplishment of the work units are United States citizens outside of
missions require their presence on the United States, District of Colum-
their regular jobs. Employees serving bia, the Commonwealth of Puerto Rico,
as committee members are considered the Canal Zone, the Territories and
to be on official assignment to an Possessions of the United States, and
interagency function, rather than on the Trust Territory of the Pacific Is-
leave. lands.
(c) A local wage survey committee (b) Federal Prevailing Rate Advisory
shall be established before each full- Committee. This committee functions in
scale wage survey. Responsibility for accordance with the requirements set
providing members shall remain with forth under section 5347 of title 5,
the same agency and the same labor or- United States Code.
425
532.233 5 CFR Ch. I (1116 Edition)
(c) Employing agencies(1) Heads of (2) Shall prepare a summary of the

agencies. The head of an agency is re- hearings and submit it to the lead
sponsible, within the policies and pro- agency together with the committees
cedures of the Federal Wage System, recommendations concerning the sur-
for authorizing application of wage vey specifications prescribed in para-
schedules developed by a lead agency graph (c) of this section.
and fixing and administering rates of (3) May make any other rec-
pay for wage employees of his/her orga- ommendations concerning the local
nization. wage survey which it considers appro-
(2) Heads of local activities. The head priate.
of each activity in a wage area is re- (b) The lead agency shall consider the
sponsible for providing employment in- local wage survey committees report
formation, wage survey committee if:
members, the prescribed number of (1) The lead agency proposes not to
data collectors, and any other assist- accept the recommendations of the
ance needed to conduct local wage sur- local wage survey committee con-
vey committee functions. cerning the specifications of the local
(d) Lead agencies are responsible for: wage survey; or
(1) Planning and conducting the wage (2) The local wage survey commit-
survey for that area; tees report is accompanied by a minor-
(2) Developing survey specifications ity report.
and providing or arranging for the
(c) The lead agency shall develop sur-
identification of establishments to be
vey specifications after taking into
surveyed;
consideration the reports and rec-
(3) Officially ordering wage surveys;
ommendations received from the local
(4) Establishing wage schedules, ap-
wage survey committee and, if applica-
plying wage schedules authorized by
ble, the agency wage committee. The
the head of the agency; and
survey specifications shall include:
(5) Referring pertinent matters to the
agency wage committee and the Office (1) The counties to be surveyed;
of Personnel Management. (2) The industries to be surveyed;
(e) Agency wage committees. As appro- (3) The standard minimum size of es-
priate, agency wage committees con- tablishments to be surveyed;
sider and make recommendations to (4) Establishments to be surveyed
the lead agency on wage schedules and with certainty; and
any matters involving survey specifica- (5) The survey jobs.
tions for full-scale surveys if the lead (d) A list of establishments to be sur-
agency chooses not to accept rec- veyed shall be prepared through use of
ommendations of the local wage survey statistical sampling techniques in ac-
committee or those in a minority re- cordance with the specifications devel-
port filed by a local wage survey com- oped by the lead agency. A copy of this
mittee member. list shall be forwarded to the local
(f) Local wage survey committees. The wage survey committee.
local wage survey committee plans and (e) Selection and appointment of data
conducts the wage survey in the des- collectors. (1) The local wage survey
ignated wage area. committee, after consultation with the
[46 FR 21344, Apr. 10, 1981, as amended at 55 lead agency, shall determine the num-
FR 46140, Nov. 1, 1990. Redesignated at 55 FR ber of regular and alternate data col-
46141, Nov. 1, 1990; 58 FR 15415, Mar. 23, 1993] lectors needed for the survey based
upon the estimated number and loca-
532.233 Preparation for full-scale tion of establishments to be surveyed.
wage surveys. (2) Wage data for appropriated fund
(a) The local wage survey committee, surveys shall be collected by teams
prior to each full-scale survey: consisting of one local Federal Wage
(1) Shall hold a public hearing to re- System employee recommended by the
ceive recommendations from interested committee member representing the
parties concerning the area, industries, qualifying labor organization and one
establishments and jobs to be covered Federal employee recommended by
in the wage survey. Federal agencies. The data collectors
426
shall be selected and appointed by their (f)(1) Each member of a local wage
employing agency. survey committee, each data collector,
(3) Wage data for nonappropriated and any other person having access to
fund surveys shall be collected by data collected must retain this infor-
teams, each consisting of one local mation in confidence, and is subject to
nonappropriated fund employee rec- disciplinary action by the employing
ommended by the committee member agency or activity if the employee vio-
representing the qualifying labor orga- lates the confidence of data secured
nization and one nonappropriated fund from private employers.
employee recommended by non- (2) Any violation of the above provi-
appropriated fund activities. The data sion by a Federal employee must be re-
collectors shall be selected and ap- ported to the employing agency and, in
pointed by their employing agency. the case of a participant designated by
(4) The local wage survey committee a labor organization, to the recognized
shall provide employers with the labor organization and its head-
names of employees recommended by quarters, and shall be cause for the
labor organizations and by Federal lead agency immediately to remove the
agencies to serve as data collectors and offending person from participation in
shall indicate the number of regular the wage survey function.
and alternate data collectors to be se- [46 FR 21344, Apr. 10, 1981, as amended at 55
lected and appointed by the employers. FR 46140, Nov. 1, 1990. Redesignated at 55 FR
(5) In selecting and appointing em- 46141, Nov. 1, 1990; 58 FR 15415, Mar. 23, 1993]
ployees recommended by labor organi-
zations and by Federal agencies to 532.235 Conduct of full-scale wage
serve as data collectors, consideration survey.
shall be given to the requirement in (a) Wage survey data shall not be col-
the prevailing rate law for labor and lected before the date the survey is or-
agency representatives to participate dered by the lead agency.
in the wage survey process, the quali- (b) Data collection for a full-scale
fications of the recommended employ- wage survey shall be accomplished by
ees, the need of the employees work personal visit to the establishment.
units for their presence on the job, and The following required data shall be
the prudent management of available collected:
financial and human resources. Em- (1) General information about the
ploying agencies and activities shall size, location, and type of product or
cooperate and appoint the rec- service of the establishment sufficient
ommended employees unless excep- to determine whether the establish-
tional circumstances prohibit their ment is within the scope of the survey
consideration. When the required num- and properly weighted, if the survey is
ber of employees cannot be appointed a sample survey;
to serve as data collectors from among (2) Specific information about each
those recommended, the local wage job within the establishment that is
survey committee shall obtain addi- similar to one of the jobs covered by
tional recommendations expeditiously the survey, including a brief descrip-
to avoid any delay in the survey proc- tion of the establishment job, the num-
ess. ber of employees in the job, and their
(6) Employers shall cooperate and rerate(s) of pay to the nearest mill (in-
lease appointed employees to serve as cluding any cost-of-living adjustments
data collectors throughout the dura- required by contract or that are reg-
tion of the data collection period un- ular and customary and monetary bo-
less the employers can demonstrate nuses that are regular and customary);
that exceptional circumstances di- and
rectly related to the accomplishment (3) Any other information the lead
of the work units missions require agency believes is appropriate and use-
their presence on their regular jobs. ful in determining local prevailing
Employees serving as data collectors rates.
are considered to be on official assign- (c) The data collectors shall submit
ment to an interagency function, rath- the data they collect to the local wage
er than on leave. survey committee together with their
427
532.237 5 CFR Ch. I (1116 Edition)
recommendations about the use of the jobs in the NA01 through 04 range pro-
data. viding 10 samples each, one survey job
in the NA01 through 04 range and
FR 46140, Nov. 1, 1990. Redesignated at 55 FR three survey jobs in the NA05 through
46141, Nov. 1, 1990] 15 range providing five samples each;
two other survey jobs, each providing
532.237 Review by the local wage at least five samples, and at least 100
survey committee. unweighted samples for all survey jobs
(a) The local wage survey committee combined are used in the computation
shall review all establishment informa- of the final payline.
tion and survey job data collected in (c)(1) If the wage survey data do not
the wage survey for completeness and meet the adequacy criteria in para-
accuracy and forward all of the data graph (b) of this section, the lead agen-
collected to the lead agency together cy shall analyze the data, construct
with a report of its recommendations lines and wage schedules, submit them
concerning the use of the data. The to the agency wage committee for its
local wage survey committee may review and recommendations and issue
make any other recommendations con- wage schedules, in accordance with the
cerning the wage survey which it con- requirements of this subpart, as if the
siders appropriate. adequacy criteria were met.
(2) The lead agency may determine
FR 46141, Nov. 1, 1990] such a wage area to be adequate if the
quantity of data obtained is large
532.239 Review by the lead agency. enough to construct paylines even
(a) The lead agency shall review all though it was obtained for fewer than
material and wage survey data for- the prescribed number of jobs, or at dif-
warded by the local wage survey com- ferent grade levels, or in different com-
mittee to: binations than prescribed in paragraph
(1) Assure that the survey was con- (b) of this section.
ducted within the prescribed proce- (3) The lead agency may not deter-
dures and specifications; mine a nonappropriated fund wage area
(2) Consider matters included in the to be adequate if fewer than 100 usable
local wage survey committee report unweighted job matches were used in
and recommendations; the final payline computation.
(3) Exclude unusable data; (d) If the lead agency determines a
(4) Resolve questionable job match- wage area to be inadequate under para-
ing and wage rate data; and graph (c) of this section, it shall
(5) Verify all computations reported promptly refer the problem to OPM for
on wage data collection forms. resolution. OPM shall:
(b) The lead agency shall determine (1) Authorize the lead agency to con-
whether the usable data collected in tinue to survey the area if the lead
the wage survey are adequate for com- agency believes the survey is likely to
puting paylines, according to the fol- be adequate in the next full-scale sur-
lowing criteria: vey;
(1) The wage survey data collected in (2) Authorize the lead agency to ex-
an appropriated fund wage survey are pand the scope of the survey; or
adequate if the unweighted job (3) Abolish the wage area and estab-
matches include at least one survey job lish it as part of one or more other
in the WG01 through 04 range, one sur- wage areas.
vey job in the WG05 through 08 range, [46 FR 21344, Apr. 10, 1981, as amended at 55
and two survey jobs in the WG09 and FR 46140, Nov. 1, 1990. Redesignated at 55 FR
above range, each providing at least 20 46141, Nov. 1, 1990]
samples; and at least six other survey
jobs, each providing at least 10 sam- 532.241 Analysis of usable wage sur-
ples. vey data.
(2) The wage survey data collected in (a)(1) The lead agency shall compute
a nonappropriated fund wage survey a weighted average rate for each appro-
are adequate if the unweighted job priated fund survey job having at least
matches include at least two survey 10 unweighed matches and for each
428
nonappropriated fund job having at formula: Y = (au + af)/2 + ((bu + bf)/2)x,

least 5 unweighed matches. The where Y is the hourly rate, x is the
weighted average rates shall be com- grade, au is the intercept of the unit
puted using the survey job data col- payline, af is the intercept of the fre-
lected in accordance with 532.235 and quency payline, bu is the slope of the
532.247 and the establishment weight. unit payline, and bf is the slope of the
(2)(i) Incentive and piece-work rates frequency payline. A midpoint line
shall be excluded when computing may be computed using the paylines
weighted average rates if, after estab- based on all of the usable survey job
lishment weights have been applied, 90 data as described in paragraph (b)(1) of
percent or more of the total usable this section, and a second midpoint
wage survey data reflect rates paid on line may be computed using the
a straight-time basis only. paylines based on limited survey job
(ii) When sufficient incentive and data authorized in paragraph (b)(2) of
piece-work rate data are obtained, the this section.
full incentive rate shall be used in (4) The lead agency may compute
computing the job weighted average other paylines for the purpose of insti-
rate when it is equal to or less than the tuting changes in the scope of the sur-
average nonincentive rate. If the full vey.
incentive rate is greater than the aver- (c) Usable data obtained from a par-
age nonincentive rate, the incentive ticular establishment may not be
rate shall be discounted by 15 percent. modified or deleted in order to reduce
The discounted incentive rate shall be the effect of an establishments rates
compared with the guaranteed min- on survey findings, i.e., data will not be
imum rate and the average nonincen- deleted or modified to avoid establish-
tive rate, and the highest rate shall be ment domination.
used in computing the job weighted av- [46 FR 21344, Apr. 10, 1981, as amended at 55
erage rate. FR 46141, Nov. 1, 1990. Redesignated at 55 FR
(b) The lead agency shall compute 46141, Nov. 1, 1990; 58 FR 32273, June 9, 1993;
paylines using the weighted average 60 FR 62701, Dec. 7, 1995]
rates computed under paragraph (a) of
this section. 532.243 Consultation with the agency
wage committee.
(1) The lead agency shall compute
unit and frequency paylines using the (a) The lead agency shall submit to
straight-line, least squares regression the agency wage committee:
formula: Y = a + bx, where Y is the (1) The data collected in the wage
hourly rate, x is grade, a is the inter- survey;
cept of the payline with the Y-axis, and (2) The report and recommendations
b is the slope of the payline. of the local wage survey committee
(i) The unit payline shall be com- concerning the use of data;
puted using a weight of one for each of (3) The lead agencys analysis of the
the usable survey jobs and the weight- data; and
ed average rates identified and com- (4) The lines computed from the data.
puted under paragraph (a) of this sec- (b) After considering the information
tion. available to it, the agency wage com-
(ii) The frequency payline shall be mittee shall report to the lead agency
computed using a weight equal to the its recommendation for a proposed
number of weighted matches for each wage schedule derived from the data.
of the usable survey jobs and the [46 FR 21344, Apr. 10, 1981. Redesignated at 55
weighted average rates identified and FR 46141, Nov. 1, 1990]
computed under paragraph (a) of this
section. 532.245 Selection of payline and
(2) Either or both of the lines com- issuance of wage schedules.
puted according to paragraph (b)(1) of (a) The lead agency shall select a
this section may be recomputed after payline and construct wage schedules
eliminating survey job data that cause therefrom for issuance as the regular
distortion in the lines. wage schedules for the wage area, after
(3) The lead agency may compute considering all of the information,
midpoint paylines using the following analysis, and recommendations made
429
532.247 5 CFR Ch. I (1116 Edition)
available to it pursuant to this sub- signed to two member teams in accord-

part. ance with 532.233(e) of this subpart.
(b)(1) The lead agency shall prepare (d) Wage change survey data may not
and maintain a record of all of the be collected before the date ordered by
analysis and deliberations made under the lead agency.
this subpart, documenting fully the (e) The local wage survey committee
basis for its determination under para- shall review all wage change survey
graph (a) of this section. data collected and forward the data to
(2) The lead agency shall include in the lead agency. Where appropriate,
the record all of the wage survey data the committee shall also forward to
obtained and the recommendations and the lead agency a report of unusual cir-
reports received from the local wage cumstances surrounding the survey.
survey committee and the agency wage (f) The lead agency shall review the
committee. wage change survey data and, if appli-
(c)(1) The lead agency shall issue the cable, the report filed by the local
nonsupervisory, leader, and super- wage survey committee.
visory regular wage schedules for the (g)(1) The lead agency shall recom-
local wage area, showing the rates of pute the line selected under 532.245(a)
pay for all grades and steps. of this subpart in the preceding full-
(2) The wage schedules shall have a scale survey using the wage change
single effective date for all employees survey data and shall construct wage
in the wage area, determined by the schedules therefrom in accordance with
lead agency in accordance with 5 U.S.C. 532.203 and, if appropriate, 532.205 of
5344. this subpart.
(d) The head of each agency having (2) The lead agency shall consult
employees in the local wage area to with the agency wage committee in ac-
whom the regular wage schedules apply cordance with 532.243 of this subpart.
shall authorize the application of the (3) Records of this process shall be
wage schedules issued under paragraph maintained in accordance with
(c) of this section to those employees, 532.245(b) of this subpart.
effective on the date specified by the (h) The wage schedules shall be
lead agency. issued and authorized in accordance
with 532.245 (c) and (d) of this subpart.
FR 46141, Nov. 1, 1990]
FR 46141, Nov. 1, 1990; 58 FR 32274, June 9,
1993]
532.247 Wage change surveys.
(a) Wage change surveys shall be con- 532.249 Minimum rates for hard-to-
ducted in each wage area in years dur- fill positions.
ing which full-scale wage surveys are (a) The lead agency for a wage area
not conducted. may establish the rate of the second,
(b) Data shall be collected in wage third, fourth, or fifth step of one or
change surveys only from establish- more grades of an occupation as the
ments which participated in the pre- mandatory minimum rate or rates pay-
ceding full-scale survey. Information able by any agency for the occupation
concerning pay adjustments of general at one or more locations within a wage
application in effect for jobs matched area based on findings that:
in each establishment which partici- (1) The hiring rates prevailing for an
pated in the preceding full-scale survey occupation in private sector establish-
shall be obtained. ments in the wage area are higher than
(c) Data may be obtained in wage the rate of the first step of the grade or
change surveys by telephone, mail, or grades of the occupation; and
personal visit. The chairperson of the (2) Federal installations and activi-
local wage survey committee shall de- ties in the wage area are unable to re-
termine the manner in which establish- cruit qualified employees at the rate of
ments will be contacted for collection the first step of the grade or grades of
of data. Data may be collected by the the occupation.

local wage survey committee members (b) Any authorizations made under
or by data collectors appointed and as- paragraph (a) of this section shall be
430
indicated on the regular wage schedule recruitment problem will develop if

for the wage area. one does not already exist;
(c) Any authorizations made under (2) The number of employees who
paragraph (a) of this section shall be have or are likely to quit, including
terminated with the issuance of a new the number quitting for higher pay po-
regular wage schedule unless the condi- sitions and evidence to support the
tions that warrant the authorizations likelihood that employees will quit;
continue and the new regular wage (3) The number of vacancies employ-
schedule continues that authorization. ing agencies tried to fill and the num-
(d) The lead agency, prior to termi- ber of hires and offers made;
nating any authorization made under (4) The nature of the existing labor
paragraph (a) of this section, shall re- market;
quire the appropriate official or offi- (5) The degree to which employing
cials at all installations or activities agencies have considered or used in-
to which the authorization applies to creased minimum rates for hard-to-fill
discuss the termination with the ap- positions;
propriate official or officials of exclu- (6) The degree to which employing
sively recognized employee organiza- agencies have considered relevant non-
tions representing employees in the af- pay solutions to the staffing problem,
fected occupation. The agency officials such as conducting an aggressive re-
shall report the results of these discus- cruiting program, using appropriate
sions to the lead agency. appointment authorities, redesigning
(e) No employee shall have his/her jobs, establishing training programs,
pay reduced because of cancellation of and improving working conditions;
an authorization made under para- (7) The impact of the staffing prob-
graph (a) of this section. lem on employers missions;
[46 FR 21344, Apr. 10, 1981. Redesignated at 55 (8) The level of private sector rates
FR 46141, Nov. 1, 1990] paid for comparable positions; and
(9) As appropriate, the extent to
532.251 Special rates. which the use of unrestricted rates au-
(a) A lead agency, with the approval thorized under 532.801 of this part was
of OPM, may establish special rates for considered.
use within all or part of a wage area for (c) In determining at what level to
a designated occupation or occupa- set special rates, OPM shall consider
tional specialization and grade, in lieu (1) The level of rates it believes nec-
of rates on the regular schedule. OPM essary to recruit or retain an adequate
may authorize special rates to the ex- number of well-qualified persons;
tent it considers necessary to overcome (2) The offsetting costs that will be
existing or likely significant handicaps incurred if special rates are not author-
in the recruitment or retention of well- ized; and
qualified personnel when these handi- (3) The level of private sector rates
caps are due to any of the following paid for comparable positions.
circumstances: (d) No one factor or combination of
(1) Rates of pay offered by private factors specified in paragraphs (b) or
sector employers for an occupation or (c) of this section requires special rates
occupational specialization and grade to be established or to be adjusted to
are significantly higher than those any given level. Each request to estab-
paid by the Federal Government within lish special rates shall be judged on its
the competitive labor market; own merits, based on the extent to
(2) The remoteness of the area or lo- which it meets these factors. Increased
cation involved; or minimum rates are not a prerequisite
(3) Any other circumstances that to the establishment of special rates
OPM considers appropriate. under this section.
(b) In authorizing special rates, OPM (e) Special rates shall be based on
shall consider private sector wage data, or a percent-
(1) The number of existing or likely age thereof, as specified by OPM at the
vacant positions and the length of time time the special rates are authorized.
they have been vacant, including evi- The private sector data shall be cal-
dence to support the likelihood that a culated as a weighted average or
431
532.253 5 CFR Ch. I (1116 Edition)
payline, as appropriate. A single rate recruit or retain well-qualified employ-

shall be used when this represents pri- ees.
vate sector practice, and five rates
[57 FR 57875, Dec. 8, 1992]
shall be used when rate ranges are used
by the private sector. When a five-step 532.253 Special rates or rate ranges
rate range is used, the differentials be- for leader, supervisory, and produc-
tween steps shall be set in accordance tion facilitating positions.
with 532.203(f) of this subpart.
(a) When special rates or rate ranges
(f) Once approved by OPM, special
are established for nonsupervisory po-
rates may be adjusted by the lead agen-
sitions, a lead agency also shall estab-
cy on the same cycle as the applicable
lish special rates for leader, super-
regular schedule to the extent deemed
visory, and production facilitating po-
necessary to ensure the continued re-
sitions, classified to the same occupa-
cruitment or retention of well-quali-
tional series and title, that lead, super-
fied personnel. The amount of the spe-
vise, or perform production facilitating
cial rate adjustment may be up to the
work directly relating to the non-
percentage (rounded to the nearest
supervisory jobs covered by the special
one-tenth of 1 percent) by which the
rates.
market rate has changed since the last
adjustment. Special rates may not ex- (b) The step rate structure shall be
ceed the percentage of market rates the same as that of the related non-
initially approved by OPM unless a re- supervisory special rate or rate range.
quest for higher special rates is made (c) The following formulas shall be
and approved under paragraphs (a) used to establish a special rate or rate
through (e) of this section. range:
(g) Any special rates established (1) A single rate shall equal the top
under paragraph (a) of this section step of the appropriate leader, super-
shall be shown on the regular schedule visory, or production facilitating grade
or published as an amendment to the on the regular schedule, plus the cents
regular schedule and shall indicate the per hour difference between the top
wage area (or part thereof) and each step of the appropriate nonsupervisory
occupation or occupational specializa- grade on the regular schedule and the
tion and grade for which the rates are special nonsupervisory rate.
authorized. These rates shall be paid by (2) For a multiple rate range, the
all agencies having such positions in step 2 rate shall equal the step 2 rate of
the wage area (or part thereof) speci- the appropriate leader, supervisory, or
fied. production facilitating grade on the
(h) The scheduled special rate pay- regular schedule, plus the cents per
able under this section may not, at any hour difference between the prevailing
time, be less than the unrestricted (un- rate of the appropriate nonsupervisory
capped) rate otherwise payable for such grade on the regular schedule and the
positions under the applicable regular prevailing rate of the special rate posi-
wage schedule. tion. Other required step rates shall be
(i) If a special rate is terminated computed in accordance with the for-
under paragraph (f) of this section, the mula established in 532.203 of this sub-
lead agency shall provide written no- part.
tice of such termination to OPM. [55 FR 46144, Nov. 1, 1990]
(j) Employers using special rates
shall maintain current recruitment 532.254 Special schedules.
and retention data for all authorized
(a) A lead agency, with the approval
special rates. Such data shall be made
of OPM, may establish special sched-
available to the lead agency prior to
ules for use within an area for specific
the wage area regular schedule adjust-
ment date for the purpose of deter- occupations that are critical to the
mission of a Federal activity based on
mining whether there is a continuing

need for special rates and the amount findings that
of special rate adjustment necessary to
432
(1) Unusual prevailing pay practices (e) Pay schedules for production fa-
exist in the private sector that are in- cilitating positions shall be established
compatible with regular schedule prac- in accordance with the table in
tices, and serious recruitment or reten- 532.263(c) of this subpart.
tion problems exist or will likely de-
velop if employees are paid from the FR 28799, Aug. 12, 1986; 51 FR 39853, Nov. 3,
authorized regular schedule; or 1986; 54 FR 52011, Dec. 20, 1989. Redesignated
(2) Administrative considerations re- and amended at 55 FR 46141, Nov. 1, 1990; 58
quire the establishment of special FR 13194, Mar. 10, 1993]
schedules to address unique agency
missions or other unusual cir- 532.257 Regular nonappropriated
cumstances that OPM considers appro- fund wage schedules in foreign
areas.
priate.
(b) An OPM authorization for a spe- (a) The Department of Defense shall
cial schedule shall include instructions establish and issue regular non-
for its construction, application, and appropriated fund wage schedules for
administration. U.S. citizens who are wage employees
(c) Unless otherwise specified, posi- in foreign areas. These schedules will
tions covered by special schedules shall provide rates of pay for non-
be subject to the general provisions of supervisory, leader, and supervisory
this part and to other applicable rules employees.
and regulations of OPM. (b) Schedules will be
(1) Computed on the basis of a simple
[57 FR 57876, Dec. 8, 1992] average of all regular nonappropriated
fund wage area schedules defined for
532.255 Regular appropriated fund the 48 contiguous states and the Dis-
wage schedules in foreign areas.
trict of Columbia in effect on the first
(a) The Department of Defense shall Sunday in January; and
establish and issue regular appro- (2) Effective on the first Sunday in
priated fund wage schedules for U.S. January of each year.
citizens who are employees in foreign (c) Step 2 rates for each non-
areas. These wage schedules shall pro- supervisory grade will be derived by
vide rates of pay for nonsupervisory, computing a simple average of each
leader, supervisory, and production fa- step 2 rate for each of the 15 grades of
cilitating employees. all nonsupervisory wage rate schedules
(b) Schedules shall be designated in paragraph (b) of this sec-
(1) Computed on the basis of a simple tion.
average of all regular appropriated (d) Through the use of the step 2
fund wage area schedules in effect on rates derived under the schedule aver-
December 31; and aging process, the step rates for each of
(2) Effective on the first day of the the 15 grades of the nonsupervisory
first pay period that begins on or after schedule and all scheduled pay rates
January 1 of the succeeding year. for leaders and supervisors will be de-
(c) Step 2 rates for each non- veloped by using the standard formulas
supervisory grade shall be derived by established in 5 CFR 532.203, Structure
computing a simple average of each of regular wage schedules.
step 2 rate for each of the 15 grades of
all nonsupervisory wage rate schedules FR 28799, Aug. 12, 1986; 54 FR 52011, Dec. 20,
designated in paragraph (b) of this sec- 1989. Redesignated and amended at 55 FR
tion. 46141, Nov. 1, 1990]
(d) Through the use of the step 2
rates derived under the schedule aver- 532.259 Special appropriated fund
aging process, the step rates for each of wage schedules for U.S. insular
the 15 grades of the nonsupervisory areas.
schedule and all scheduled pay rates (a) Lead agencies shall establish and
for leaders and supervisors shall be de- issue special wage schedules for U.S.
veloped by using the standard formulas civil service wage employees in certain
established in 5 CFR 532.203, Structure U.S. insular areas. The Department of
of regular wage schedules. Defense is the lead agency for Guam,
433
532.261 5 CFR Ch. I (1116 Edition)
Midway, and the U.S. Virgin Islands. (3) For grade WS19, the third rate in
The Department of Transportation is effect for General Schedule grade GS
the lead agency for American Samoa. 14 at the time of the area wage sched-
The Department of the Interior is the ule adjustment. The WS19 rate shall
lead agency for the Commonwealth of include any cost of living allowance
the Northern Mariana Islands. These payable for the area under 5 U.S.C.
schedules shall provide rates of pay for 5941.
nonsupervisory, leader, supervisory, (d) Step rates shall be developed by
and production facilitating employees. using the formula established in
(b) Special schedules shall be estab- 532.203 of this subpart.
lished at the same time and with rates
identical to the foreign area appro- [55 FR 46144, Nov. 1, 1990]
priated fund wage schedules estab-
lished under 532.255 of this subpart. 532.263 Special wage schedules for
production facilitating positions.
(c) Wage employees recruited from
outside the insular area where em- (a) The lead agency in each FWS
ployed, who meet the same eligibility wage area shall establish special non-
requirements as those specified for supervisory and supervisory production
General Schedule employees in 591.209 facilitating wage schedules for employ-
of subpart B of part 591, are also paid as ees properly allocable to production fa-
a part of basic pay a differential for re- cilitating positions under applicable
cruitment and retention purposes. The Federal Wage System job grading
differential rate shall be that estab- standards.
lished for General Schedule employees (b) Nonsupervisory schedules shall
in appendix B of subpart B of part 591 have 11 pay levels, and supervisory
and shall be adjusted effective concur- schedules shall have 9 pay levels.
rently with the special schedules. (c) Pay levels and rates of pay for
[58 FR 13194, Mar. 10, 1993] nonsupervisory (WD) schedules and su-
pervisory (WN) schedules shall be iden-
532.261 Special wage schedules for tical to the pay levels and rates of pay
leader and supervisory schedules for the corresponding grades on the
for leader and supervisory wage local FWS regular supervisory wage
employees in the Puerto Rico wage
area. schedule. Pay levels shall be deter-
mined in accordance with the following
(a) The Department of Defense shall table:
establish special wage schedules for
leader and supervisory wage employees WN su-
pervi- WS
in the Puerto Rico wage area. sory grade
(b) The step 2 rate for each grade of level
the leader wage schedule shall be equal WD nonsupervisory Level:
to 120 percent of the rate for step 2 of 1 .......................................................... ............ 3
the corresponding grade of the non- 2 .......................................................... ............ 4
supervisory regular wage schedule for 3 .......................................................... ............ 5
the Puerto Rico wage area. 4 .......................................................... ............ 6
5 .......................................................... 1 7
(c) The step 2 rate for the supervisory 6 .......................................................... 2 8
wage schedule shall be: 7 .......................................................... 3 9
(1) For grades WS1 through WS10, 8 .......................................................... 4 10
equal to the rate for step 2 of the cor- 9 .......................................................... 5 11
responding grade of the nonsupervisory 10 ........................................................ 6 12
regular wage schedule for the Puerto 11 ........................................................ 7 13
8 14
Rico wage area, plus 60 percent of the 9 15
rate for step 2 of WG10;
(2) For grades WS11 through WS18, (d) Special production facilitating
the second rate of WS10 plus 5, 11.5, wage schedules shall be effective on the
19.6, 29.2, 40.3, 52.9, 67.1, and 82.8 per- same date as the regular wage sched-
cent, respectively, of the difference be- ules in the FWS wage area.
tween the step 2 rates of WS10 and
WS19; and [55 FR 46144, Nov. 1, 1990]
434
532.265 Special wage schedules for level, step 2 rate, and dividing the dif-
apprentices and shop trainees. ference by the number of 26-week peri-
(a) Agencies may establish special ods of the particular training term.
wage schedules for apprentices and The resulting quotient equals the in-
shop trainees who are included in: crement for each succeeding rate.
(1) Formal apprenticeship programs (d) Agencies may hire at advanced
involving training for journeyman rates or accelerate progression through
level duties in occupations that are scheduled wage rates if prescribed by
recognized as apprenticeable by the Bu- approved agency training standards or
reau of Apprenticeship and Training, programs.
U.S. Department of Labor; or (e) If the employee is promoted to the
(2) Formal shop trainee programs in- target job or to a job at the same grade
volving training for journeyman level level, the promotion shall be to the
duties in nonapprenticeable occupa- second step rate. If the employee is as-
tions that require specialized trade or signed to a job at a grade level that is
craft skill and knowledge. less than the grade level of the target
(b) Special schedules shall consist of job, existing pay fixing rules shall be
a single wage rate for each training pe- followed.
riod. Wage rates shall be determined as
[55 FR 46144, Nov. 1, 1990]
follows:
(1) Rates shall be based on the cur-
532.267 Special wage schedules for
rent second step rate of the target aircraft, electronic, and optical in-
journeyman grade level on the regular strument overhaul and repair posi-
nonsupervisory wage schedule for the tions in Puerto Rico.
area where the apprentice or trainee is
employed. (a) The Department of Defense shall
(2) The entrance rate shall be com- conduct special industry surveys and
puted at 65 percent of the journeyman establish special wage schedules for
level, step 2, rate, or the WG1, step 1, wage employees in Puerto Rico whose
rate, whichever is greater. primary duties involve the perform-
(3) When the WG1, step 1, rate is ance of work related to aircraft, elec-
used, the apprentice rate shall be in- tronic equipment, and optical instru-
creased by a minimum of 5 cents per ment overhaul and repair.
hour for each succeeding increment in- (b) Except as provided in this section,
terval until the rate obtained by this regular appropriated fund wage survey
method equals the rate computed and wage-setting procedures are appli-
under the formula. No increase shall be cable.
less then 5 cents per hour. (c) Special survey specifications are
(c) Advancement to higher incre- as follows:
ments shall be at 26-week intervals, re- (1) Surveys must, at a minimum, in-
gardless of the total length of the clude the air transportation and elec-
training period. Intermediate rates tronics industries in the following
shall be established by subtracting the North American Industry Classifica-
entrance rate from the journeyman tion System (NAICS) codes:
333316 ............................ Photographic and photocopying equipment manufacturing.

3341 ................................ Computer and peripheral equipment manufacturing.
33422 .............................. Radio and television broadcasting and wireless communications equipment manufacturing.
33429 .............................. Other communications equipment manufacturing.
3343 ................................ Audio and video equipment manufacturing.
334412 ............................ Bare printed circuit board manufacturing.
334413 ............................ Semiconductor and related device manufacturing.
334418 ............................ Printed circuit assembly (electronic assembly) manufacturing.
334419 ............................ Other electronic component manufacturing.
334511 ............................ Search, detection, navigation, guidance, aeronautical, and nautical system and instrument manufac-
turing.
334515 ............................ Instrument manufacturing for measuring and testing electricity and electrical signals.
334613 ............................ Blank magnetic and optical recording media manufacturing.
42342 .............................. Office equipment merchant wholesalers.
42343 .............................. Computer and computer peripheral equipment and software merchant wholesalers.
4811 ................................ Scheduled air transportation.
4812 ................................ Nonscheduled air transportation.
435
532.269 5 CFR Ch. I (1116 Edition)
4879 ................................ Scenic and sightseeing transportation, other.

4881 ................................ Support activities for air transportation.
4921 ................................ Couriers and express delivery services.
56172 .............................. Janitorial services.
62191 .............................. Ambulance services.
81142 .............................. Reupholstery and furniture repair.
(2) Surveys shall cover all establish- Engineers, U.S. Army, who are engaged
ments in the surveyed industries. in operating lock and dam equipment
(3) Surveys shall, as a minimum, in- or who repair and maintain navigation
clude all the following jobs: lock and dam operating machinery and
equipment.
Job
Job titles grades (b) Employees shall be subject to one
of the following pay provisions:
Aircraft Cleaner .......................................................... 3
Fleet Service Worker ................................................. 5
(1) If all navigation lock and dam in-
Aircraft Mechanic ....................................................... 10 stallations under a District head-
Industrial Electronic Controls Repairer ...................... 10 quarters office are located within a sin-
Aircraft Instrument Mechanic ..................................... 11 gle wage area, the employees shall be
Electronic Test Equipment Repairer ......................... 11
Electronics Mechanic ................................................. 11 paid from special wage schedules hav-
Electronic Computer Mechanic ................................. 11 ing rates identical to the regular wage
Television Station Mechanic ...................................... 11 schedule applicable to that wage area.
(2) If navigation lock and dam instal-
(d) The data collected in a special lations under a District headquarters
wage survey shall be considered ade- office are located in more than one
quate if there are as many weighted wage area, employees shall be paid
matches used in computing the non- from a special wage schedule having
supervisory payline as there are em- rates identical to the regular wage
ployees covered by the special wage
schedule authorized for the head-
rate schedules.
quarters office.
(e) Each survey job used in com-
(c) Each special wage schedule shall
puting the nonsupervisory payline
be effective on the same date as the
must include a minimum of three
regular schedule on which it is based.
unweighted matches.
(f) Special schedules shall have three [55 FR 46145, Nov. 1, 1990]
step rates with the payline fixed at
step 2. Step 1 shall be set at 96 percent 532.271 Special wage schedules for
of the payline rate, and step 3 shall be National Park Service positions in
set at 104 percent of the payline rate. overlap areas.
(g) The waiting period for within- (a)(1) The Department of the Interior
grade increases shall be 26 weeks be- shall establish special schedules for
tween steps 1 and 2 and 78 weeks be- wage employees of the National Park
tween steps 2 and 3. Service whose duty station is located
(h) Special wage schedules shall be in one of the following NPS jurisdic-
effective on the same date as the reg- tions:
ular wage schedules for the Puerto (i) Blue Ridge Parkway;
Rico wage area. (ii) Natchez Trace Parkway; and
(iii) Great Smoky Mountains Na-
FR 62701, Dec. 7, 1995; 71 FR 35374, June 20, tional Park.
2006; 73 FR 45853, Aug. 7, 2008; 78 FR 58154, (2) Each of these NPS jurisdictions is
Sept. 23, 2013] located in (i.e., overlaps) more than one
FWS wage area.
532.269 Special wage schedules for (b) The special overlap wage sched-
Corps of Engineers, U.S. Army navi- ules in each of the NPS jurisdictions
gation lock and dam employees. shall be based on a determination con-
(a) The Department of Defense shall cerning which regular nonsupervisory
establish special wage schedules for wage schedule in the overlapped FWS
nonsupervisory, leader, and super- wage areas provides the most favorable
visory wage employees of the Corps of payline for the employees.
436
(c) The most favorable payline shall cent of the WG10, step 2, rate on the
be determined by computing a simple overseas schedule.
average of the 15 nonsupervisory sec- (2) The step 2 rate of supervisory ship
ond step rates on each one of the reg- surveyors shall be set at 166.75 percent
ular schedules authorized for each of the WG10, step 2, rate on the over-
wage area overlapped. The highest av- seas schedule.
erage obtained by this method will (3) Step rates shall be developed by
identify the regular schedule that pro- using the standard formulas estab-
duces the most favorable payline. lished in 532.203 of this part.
(d) Each special schedule shall be ef- (c) The special wage schedules shall
fective on the same date as the regular be effective on the same date as the
schedule on which it is based. regular wage schedules applicable to
(e) If there is a change in the identi- the Puerto Rico wage area.
fication of the most favorable payline, [55 FR 46145, Nov. 1, 1990]
the special scheule for the current year
shall be issued on its normal effective 532.277 Special wage schedules for
date. The next special scheule shall be U.S. Navy positions in Bridgeport,
issued on the effective date of the next California.
regular schedule that produced the (a) The Department of Defense shall
most favorable payline for the NPS ju- establish special wage schedules for
risdiction in the previous year. prevailing rate employees at the
[55 FR 46145, Nov. 1, 1990] United States Marine Corps Mountain
Warfare Training Center in Bridgeport,
532.273 Special wage schedules for California.
United States Information Agency (b) Schedules shall be established by
Radio Antenna Rigger positions. increasing the step 2 rates on the Reno,
(a) The United States Information Nevada, regular wage schedule by 10
Agency shall establish special wage percent.
schedules for Radio Antenna Riggers (c) Step rates shall be developed by
employed at transmitting and relay using the standard formulas estab-
stations in the United States. lished in 532.203 of this subpart.
(d) The special wage schedules shall
(b) The wage rate shall be the regular
be effective on the same date as the
wage rate for the appropriate grade for
regular wage schedules applicable to
Radio Antenna Rigger for the wage
the Reno, Nevada, wage area.
area in which the station is located,
plus 25 percent of that rate. [55 FR 46146, Nov. 1, 1990]
(c) The 25 percent differential shall
be in lieu of any environmental dif- 532.281 Special wage schedules for
ferential that would otherwise be pay- divers and tenders.
able. (a) Agencies are authorized to estab-
(d) The special schedules shall be ef- lish special schedule payments for pre-
fective on the same date as the regular vailing rate employees who perform
wage schedules for the wage area in diving and tending duties.
which the positions are located. (b) Employees who perform diving
duties shall be paid 175 percent of the
[55 FR 46145, Nov. 1, 1990] locality WG10, step 2, rate for all pay-
able hours of the shift.
ship surveyors in Puerto Rico. (c) Employees who perform tending
duties shall be paid at the locality WG
(a) The Department of Defense shall 10, step 2, rate for all payable hours of
establish special wage schedules for the shift.
nonsupervisory ship surveyors and su- (d) Employees whose regular sched-
pervisory ship surveyors in Puerto uled rate exceeds the diving/tending
Rico. rate on the day they perform such du-
(b) Rates shall be computed as fol- ties shall retain their regular sched-
lows: uled rate on that day.

(1) The step 2 rate for nonsupervisory (e) An employees diving/tending rate
ship surveyors shall be set at 149.5 per- shall be used as the basic rate of pay
437
532.283 5 CFR Ch. I (1116 Edition)
for computing all premium payments 532.285 Special wage schedules for
for a shift. supervisors of negotiated rate Bu-
(f) Employees who both dive and tend reau of Reclamation employees.
on the same shift shall receive the (a) The Department of the Interior
higher diving rate as the basic rate for
shall establish and issue special wage
all hours of the shift.
schedules for wage supervisors of nego-
[55 FR 46146, Nov. 1, 1990] tiated rate wage employees in the Bu-
reau of Reclamation. These schedules
532.283 Special wage schedules for shall be based on annual special wage
nonappropriated fund tipped em-
ployees classified as waiter/wait- surveys conducted by the Bureau of
ress. Reclamation in each special wage area.
(a) Tipped employees shall be paid Survey jobs representing Bureau of
from the regular nonappropriated fund Reclamation positions at up to four
(NAF) schedule applicable to the em- levels will be matched to private indus-
ployees duty station. try jobs in each special wage area. Spe-
(b) A tip offset may be authorized for cial schedule rates for each position
employees classified as Waiter/Wait- will be based on prevailing rates for
ress. For purposes of this section, a that particular job in private industry.
tipped employee is one who is engaged (b) Each supervisory job shall be de-
in an occupation in which he or she scribed at one of four levels cor-
customarily and regularly receives responding to the four supervisory sit-
more than $30 a month in tips, and a uations described in Factor I and four
tip offset is the amount of money by levels of Subfactor IIIA of the FWS Job
which an employer, in meeting legal Grading Standard for Supervisors.
minimum wage standards, may reduce They shall be titled in accordance with
a tipped employees cash wage in con- regular FWS practices, with the added
sideration of the receipt of tips. designation of level I, II, III, or IV. The
(c) A tip offset may be established, special survey and wage schedule for a
abolished, or adjusted by NAF instru- given special wage area includes only
mentalities on an annual basis and at those occupations and levels having
such additional times as new or revised
employees in that area. For each posi-
minimum wage statutes require. The
tion on the special schedule, there
amount of any tip offset may vary
shall be three step rates. Step 2 is the
within a single instrumentality based
on location, type of service, or time of prevailing rate as determined by the
service. survey; step 1 is 96 percent of the pre-
(d) If tipped employees are rep- vailing rate; and step 3 is 104 percent of
resented by a labor organization hold- the prevailing rate.
ing exclusive recognition, the employ- (c) For each special wage area, the
ing NAF instrumentality shall nego- Bureau of Reclamation shall designate
tiate with such organization to arrive and appoint a special wage survey com-
at a determination as to whether, mittee, including a chairperson and
when, and how much tip offset shall be two other members (at least one of
applied. Changes in tip offset practices whom shall be a supervisor paid from
may be made more frequently than an- the special wage schedule), and one or
nually as a result of collective bar- more two-person data collection teams
gaining agreement. (each of which shall include at least
(e) Tip offset practices shall be gov- one supervisor paid from the special
erned by the Fair Labor Standards Act, wage schedule). The local wage survey
as amended, or the applicable statutes committee shall determine the pre-
of the State, possession or territory vailing rate for each survey job as a
where an employee works, whichever weighted average. Survey specifica-
provides the greater benefit to the em- tions are as follows for all surveys:
ployee. In locations where tip offset is (1) Based on Bureau of Reclamation
prohibited by law, the requirements of activities and types of supervisory po-
paragraphs (c) and (d) of this section do
sitions in the special wage area, the

not apply. Bureau of Reclamation must survey
[55 FR 46146, Nov. 1, 1990] private industry companies, with no
438
minimum employment size require- lowing North American Industry Clas-

ment for establishments, in the fol- sification System code subsectors:
211 .................................. Oil and gas extraction.

212 .................................. Mining (except oil and gas).
213 .................................. Support activities for mining.
221 .................................. Utilities.
333 .................................. Machinery manufacturing.
334 .................................. Computer and electronic product manufacturing.
335 .................................. Electrical equipment, appliance, and component manufacturing.
493 .................................. Warehousing and storage.
515 .................................. Broadcasting (except Internet).
517 .................................. Telecommunications.
562 .................................. Waste management and remediation services.
811 .................................. Repair and maintenance.
(2) Each local wage survey com- THE GREAT PLAINS REGION
mittee shall compile lists of all compa- Special Wage Survey Area (Counties)
nies in the survey area known to have
potential job matches. For the first Montana: All counties except Lincoln, Sand-
ers,Lake, Flathead, Mineral, Missoula,
survey, all companies on the list will
Powell, Granite, and Ravalli
be surveyed. Subsequently, companies Wyoming: All counties except Lincoln, Teton,
shall be removed from the survey list if sublette, Uinta, and Sweetwater
they prove not to have job matches, Colorado: All counties except Moffat, Rio
and new companies will be added if Blanco, Garfield, Mesa, Delta, Montrose,
they are expected to have job matches. San Miguel, Ouray, Delores, San Juan,
Montezuma, La Plata, and Archuleta
Survey data will be shared with other
North Dakota: All counties
local wage survey committees when South Dakota: All counties
the data from any one company is ap-
plicable to more than one special wage Special Wage Area of Application (Counties)
area. Montana: Broadwater, Jefferson,Lewis and
(3) For each area, survey job descrip- Clark, Yellowstone, and Bighorn Counties
tions shall be tailored to correspond to Wyoming: All counties except Lincoln, Teton,
the position of each covered supervisor Sublette, Uinta, and Sweetwater
Colorado: Boulder, Chaffee, Clear Creek,
in that area. They will be described at Eagle, Fremont, Gilpin, Grand, Lake,
one of four levels (I, II, III, or IV) cor- Larimer, Park, Pitkin, Pueblo, and
responding to the definitions of the Summitt
four supervisory situations described in Beginning month of survey: August
Factor I and four levels of Subfactor
THE MID-PACIFIC REGION
IIIA of the FWS Job Grading Standard
for Supervisors. A description of the Special Wage Survey Area (Counties)
craft, trade, or labor work supervised California: Shasta, Sacramento, Butte, San
will be included in each supervisory Francisco, Merced, Stanislaus
survey job description.
Special Wage Area of Application (Counties)
(d) Special wage area boundaries
shall be identical to the survey areas California: Shasta, Sacramento, Fresno, Ala-
covered by the special wage surveys. meda, Tehoma, Tuolumne, Merced
The areas of application in which the Beginning month of survey: February
special schedules will be paid are gen- GREEN SPRINGS POWER FIELD STATION
erally smaller than the survey areas,
reflecting actual Bureau of Reclama- Special Wage Survey Area (Counties)
tion worksites and the often scattered Oregon: Jackson
location of surveyable private sector
jobs. Special wage schedules shall be

established in the following areas: Oregon: Jackson
Beginning month of survey: April
439
532.285 5 CFR Ch. I (1116 Edition)
PACIFIC NW. REGION DRILL CREW COLORADO RIVER STORAGE PROJECT AREA
Special Wage Survey Area (Counties) Special Wage Survey Area (Counties)
Montana: Flathead, Missoula Arizona: Apache, Coconino, Navajo
Oregon: Lane, Bend, Medford, Umatilla, Colorado: Moffat, Montrose, Routt, Gunni-
Multnomah son, Rio Blanco, Mesa, Garfield, Eagle,
Utah: Salt Lake Delta, Pitkin, San Miguel, Delores, Monte-
Idaho: Ada, Canyon, Adams zuma, La Plata, San Juan, Ouray,
Washington: Spokane, Grant, Lincoln, Archuleta, Hindale, Mineral
Okanogan Wyoming: Unita, Sweetwater, Carbon, Al-
bany, Laramie, Goshen, Platte, Niobrara,
Special Wage Area of Application (Counties) Converse, Natrona, Fremont, Sublette,
Lincoln
Oregon: Deschutes, Jackson, Umatilla
Utah: Beaver, Box Elder, Cache, Carbon,
Montana: Missoula
Daggett, Davis, Duchesne, Emery, Gar-
Idaho: Ada
field, Grand, Iron, Juab, Kane, Millard,
Washington: Grant, Lincoln, Douglas, Morgan, Piute, Rich, Salt Lake, San Juan,
Okanogan, Yakima Sanpete, Sevier, Summit, Tooele, Uintah,
Beginning month of survey: April Utah, Wasatch, Washington, Wayne, Weber
SNAKE RIVER AREA OFFICE (CENTRAL SNAKE/ Special Survey Area of Application (Counties)
MINIDOKA)
Arizona: Coconino
Special Wage Survey Area (Counties) Colorado: Montrose, Gunnison, Mesa
Wyoming: Lincoln
Idaho: Ada, Caribou, Bingham, Bannock
Utah: Daggett
Special Wage Area of Application (Counties) Beginning month of survey: March
Idaho: Gem, Elmore, Bonneville, Minidoka, ELEPHANT BUTTE AREA

Boise, Valley, Power
Beginning month of survey: April Special Wage Survey Area (Counties)
New Mexico: Grant, Hidalgo, Luna, Donna
HUNGRY HORSE PROJECT OFFICE Ana, Otero, Eddy, Lea, Roosevelt, Chaves,
Special Wage Survey Area (Counties) Lincoln, Sierra, Socorro, Catron, Cibola,
Valencia, Bernalillo, Torrance, Guadalupe,
Montana: Flathead, Missoula, Cascade, Sand- De Baca, Curry, Quay
ers, Lake Texas: El Paso, Hudspeth, Culberson, Jeff
Idaho: Bonner Davis, Presido, Brewster, Pecos, Reeves,
Washington: Pend Oreille Loving, Ward, Winkler
Arizona: Apache, Greenlee, Graham, Cochise
Montana: Flathead
Beginning month of survey: March New Mexico: Sierra
Beginning month of survey: June
GRAND COULEE POWER OFFICE (GRAND COULEE
PROJECT OFFICE) LOWER COLORADO DAMS AREA
Special Wage Survey Area (Counties) Special Wage Survey Area (Counties)
Oregon: Multnomah Nevada: Clark
Washington: Spokane, King California: Los Angeles
Arizona: Maricopa
Washington: Grant, Douglas, Lincoln,
Okanogan Nevada: Clark
Beginning month of survey: April California: San Bernardino
Arizona: Mohave
UPPER COLUMBIA AREA OFFICE (YAKIMA) Beginning month of survey: August
Special Wage Survey Area (Counties) YUMA PROJECTS AREA
Washington: King, Yakima Special Wage Survey Area (Counties)
Oregon: Multnomah
California: San Diego
Special Wage Area of Application (Counties) Arizona: Maricopa, Yuma
Washington: Yakima NOTE: Bureau of Reclamation may add

Oregon: Umatilla other survey counties for dredge operator su-
Beginning Month of Survey: September pervisors because of the uniqueness of the
440
occupation and difficulty in finding job (b) DOD will issue special wage
matches.) schedules for NAF automotive mechan-
Special Wage Area of Application (Counties) ics who are covered by the flat rate pay
system. These special schedules will
Arizona: Yuma provide rates of pay for non-
Beginning month of survey: November (Main-
tenance) and April (Dredging)
supervisory, leader, and supervisory
employees. These special schedule posi-
BUREAU OF RECLAMATION, DENVER, CO, AREA tions will be identified by pay plan
codes XW (nonsupervisory), XY (lead-
Special Wage Survey Area (Counties)
er), and XZ (supervisory), grades 810,
Colorado: Jefferson, Denver, Adams, and will use the Federal Wage System
Arapahoe, Boulder, Larimer occupational code 5823.
Special Wage Survey Area of Application (c) DOD will issue special wage sched-
(Counties) ules for NAF automotive mechanics
Colorado: Jefferson
based on annual special flat rate sur-
Beginning month of survey: February veys of similar jobs conducted in each
special schedule wage area.
(e) These special schedule positions (1) The survey area for these special
will be identified by pay plan code XE, surveys will include the same counties
grade 00, and the Federal Wage System as the regular NAF survey area.
occupational codes will be used. New
(2) The survey jobs used will be Auto-
employees shall be hired at step 1 of
motive Worker and Automotive Me-
the position. With satisfactory or high-
chanic.
er performance, advancement between
steps shall be automatic after 52 weeks (3) The special surveys will include
of service. data on automotive mechanics that are
(f)(1) In the first year of implementa- paid under private industry flat rate
tion, all special areas will have full- pay plans as well as those paid by com-
scale surveys. mission.
(2) Current employees shall be placed (4) In addition to all standard North
in step 2 of the new special schedule, American Industry Classification Sys-
or, if their current rate of pay exceeds tem (NAICS) codes currently used on
the rate for step 2, they shall be placed the regular surveys, the industries sur-
in step 3. Pay retention shall apply to veyed will include
any employee whose rate of basic pay 2012 NAICS
would otherwise be reduced as a result 2012 NAICS Industry titles
Codes
of placement in these new special wage
441110 ....... New car dealers.
schedules.
441310 ....... Automotive parts and accessory stores.
(3) The waiting period for within- 811111 ....... General automotive repair.
grade increases shall begin on the em- 811191 ....... Automotive oil change and lubrication shops.
ployees first day under the new special
schedule. (5) The surveys will cover establish-
[60 FR 5310, Jan. 27, 1995, as amended at 69 ments with a total employment of
FR 7105, Feb. 13, 2004; 71 FR 35375, June 20, eight or more.
2006; 73 FR 45853, Aug. 7, 2008; 78 FR 58154, (6) The special schedules for NAF
Sept. 23, 2013] automotive mechanics will be effective
on the same dates as the regular wage
nonappropriated fund automotive schedules in the NAF FWS wage area.
mechanics. (d) New employees will be hired at
step 1 of the position under the flat
(a) The Department of Defense (DOD) rate pay system. Current employees
will establish a flat rate pay system for will be moved to these special wage
nonappropriated fund (NAF) auto- schedules on a step-by-step basis. Pay
motive mechanics. This flat rate pay retention will apply to any employee
system will take into account local whose rate of basic pay would other-
prevailing rates, the mechanics skill wise be reduced as a result of place-
level, and the standard number of ment in these new special schedules.
hours required to complete a particular
job. [79 FR 22765, Apr. 24, 2014]
441
532.289 5 CFR Ch. I (1116 Edition)
532.289 Special wage schedules for (2) Enid Lake in Yalobusha County, MS
U.S. Army Corps of Engineers flood (3) Sardis Lake in Panola County, MS
control employees of the Vicksburg (4) Arkabutla Lake in Tate County, MS
District in Mississippi.
(c) Special wage schedules shall be
(a)(1) The Department of Defense will established at the same time and with
establish special wage schedules for rates identical to the Memphis, TN, ap-
wage employees of the U.S. Army propriated fund wage schedule.
Corps of Engineers who work at flood
control dams (also known as reservoir [80 FR 61277, Oct. 13, 2015]
projects) and whose duty station is lo-
cated in one of the lakes that comprise APPENDIX A TO SUBPART B OF PART
the Vicksburg District of the Mis- 532NATIONWIDE SCHEDULE OF AP-
sissippi Valley Division. PROPRIATED FUND REGULAR WAGE
(2) These special wage schedules will SURVEYS
provide rates of pay for non- This appendix shows the annual schedule
supervisory, leader, and supervisory of wage surveys. It lists all States alphabeti-
employees. These special schedule posi- cally, each State being followed by an alpha-
tions will be identified by pay plan betical listing of all wage areas in the State.
codes XR (nonsupervisory), XT (lead- Information given for each wage area in-
er), and XU (supervisory). cludes
(b) The Vicksburg District of the (1) The lead agency responsible for con-
ducting the survey;
Mississippi Valley Division is com-
(2) The month in which the survey will
prised of the following four lakes: begin; and
(1) Grenada Lake in Grenada County, (3) Whether full-scale surveys will be done
MS in odd or even numbered fiscal years.
Fiscal year of full-

Lead Beginning month of
State Wage area scale survey odd or
agency survey even
Alabama .......................... Anniston-Gadsden ................................... DoD April ........................ Even.

Birmingham ............................................. DoD January ................... Even.
Dothan ..................................................... DoD July ......................... Odd.
Huntsville ................................................. DoD April ........................ Even.
Alaska .............................. Alaska ...................................................... DoD July ......................... Even.
Arizona ............................ Northeastern Arizona .............................. DoD March ...................... Odd.
Phoenix .................................................... DoD March ...................... Odd.
Tucson ..................................................... DoD March ...................... Odd.
Arkansas .......................... Little Rock ................................................ DoD August .................... Even.
California ......................... Fresno ..................................................... DoD February ................. Odd.
Los Angeles ............................................. DoD September .............. Even.
Sacramento ............................................. DoD February ................. Odd.
Salinas-Monterey ..................................... DoD February ................. Even.
San Bernardino-Riverside-Ontario .......... DoD September .............. Even.
San Diego ................................................ DoD September .............. Odd.
San Francisco ......................................... DoD September .............. Odd.
Santa Barbara ......................................... DoD September .............. Even.
Stockton ................................................... DoD February ................. Odd.
Colorado .......................... Denver ..................................................... DoD January ................... Odd.
Southern Colorado .................................. DoD January ................... Even.
Connecticut ...................... New Haven-Hartford ................................ DoD April ........................ Odd.
New London ............................................ DoD September .............. Even.
Delaware ......................... Wilmington ............................................... DoD November ............... Even.
District of Columbia ......... Washington, D.C ..................................... DoD August .................... Odd.
Florida .............................. Cocoa Beach-Melbourne ......................... DoD October ................... Even.
Jacksonville ............................................. DoD January ................... Odd.
Miami ....................................................... DoD January ................... Odd.
Panama City ............................................ DoD September .............. Even.
Pensacola ................................................ DoD September .............. Odd.
Tampa-St. Petersburg ............................. DoD April ........................ Even.
Georgia ............................ Albany ...................................................... DoD August .................... Odd.
Atlanta ..................................................... DoD May ......................... Odd.
Augusta ................................................... DoD June ........................ Odd.
Columbus ................................................ DoD August .................... Odd.
Macon ...................................................... DoD June ........................ Odd.
Savannah ................................................ DoD May ......................... Odd.
Hawaii .............................. Hawaii ...................................................... DoD June ........................ Even.

Idaho ................................ Boise ........................................................ DoD July ......................... Odd.
Illinois ............................... Central Illinois .......................................... DoD September .............. Odd.
442
Office of Personnel Management Pt. 532, Subpt. B, App. A

agency survey even
Chicago ................................................... DoD September .............. Even.

Indiana ............................. Bloomington-Bedford-Washington ........... DoD October ................... Odd.
Fort Wayne-Marion .................................. DoD October ................... Odd.
Indianapolis ............................................. DoD October ................... Odd.
Iowa ................................. Cedar Rapids-Iowa City .......................... DoD July ......................... Even.
Davenport-Rock Island-Moline ................ DoD October ................... Even.
Des Moines ............................................. DoD September .............. Odd.
Kansas ............................. Topeka ..................................................... DoD November ............... Even.
Wichita ..................................................... DoD November ............... Even.
Kentucky .......................... Lexington ................................................. DoD February ................. Even.
Louisville .................................................. DoD February ................. Odd.
Louisiana ......................... Lake Charles-Alexandria ......................... DoD April ........................ Even.
New Orleans ............................................ DoD November ............... Odd.
Shreveport ............................................... DoD May ......................... Even.
Maine ............................... Augusta 1 ................................................. DoD May ......................... Even.
Central and Northern Maine .................... DoD June ........................ Even.
Maryland .......................... Baltimore ................................................. DoD September .............. Odd.
Hagerstown-Martinsburg-Chambersburg DoD January ................... Even.
Massachusetts ................. Boston ..................................................... DoD August .................... Even.
Central and Western Massachusetts ...... DoD June ........................ Even.
Michigan .......................... Detroit ...................................................... DoD January ................... Odd.
Northwestern Michigan ............................ DoD August .................... Odd.
Southwestern Michigan 1 ......................... DoD October ................... Even.
Minnesota ........................ Duluth ...................................................... DoD June ........................ Odd.
Minneapolis-St. Paul ............................... DoD March ...................... Odd.
Mississippi ....................... Biloxi ........................................................ DoD November ............... Even.
Northern Mississippi ................................ DoD February ................. Even.
Jackson ................................................... DoD February ................. Odd.
Meridian ................................................... DoD February ................. Odd.
Missouri ........................... Kansas City ............................................. DoD October ................... Odd.
St. Louis .................................................. DoD October ................... Odd.
Southern Missouri ................................... DoD October ................... Odd.
Montana ........................... Montana ................................................... DoD July ......................... Even.
Nebraska ......................... Omaha ..................................................... DoD October ................... Odd.
Nevada ............................ Las Vegas ............................................... DoD September .............. Even.
Reno ........................................................ DoD March ...................... Even.
New Hampshire ............... Portsmouth .............................................. DoD September .............. Even.
New Mexico ..................... Albuquerque ............................................ DoD April ........................ Odd.
New York ......................... Albany-Schenectady-Troy ....................... DoD March ...................... Odd.
Buffalo 1 ................................................... DoD September .............. Odd.
Newburg .................................................. DoD March ...................... Even.
New York ................................................. DoD January ................... Even.
Northern New York .................................. DoD March ...................... Odd.
Rochester ................................................ DoD February ................. Even.
Syracuse-Utica-Rome ............................. DoD March ...................... Even.
North Carolina ................. Asheville .................................................. DoD June ........................ Even.
Central North Carolina ............................ DoD May ......................... Even.
Charlotte .................................................. DoD August .................... Odd.
Southeastern North Carolina ................... DoD January ................... Odd.
North Dakota ................... North Dakota ........................................... DoD March ...................... Even.
Ohio ................................. Cincinnati ................................................. DoD January ................... Odd.
Cleveland ................................................. DoD April ........................ Odd.
Columbus ................................................ DoD January ................... Odd.
Dayton ..................................................... DoD January ................... Even.
Oklahoma ........................ Oklahoma City ......................................... DoD August .................... Odd.
Tulsa ........................................................ DoD August .................... Odd.
Oregon ............................. Portland ................................................... DoD August .................... Even.
Southwestern Oregon ............................. DoD June ........................ Even.
Pennsylvania ................... Harrisburg ................................................ DoD January ................... Even.
Philadelphia ............................................. DoD October ................... Even.
Pittsburgh ................................................ DoD July ......................... Odd.
Scranton-Wilkes-Barre ............................ DoD August .................... Odd.
Puerto Rico ...................... Puerto Rico .............................................. DoD July ......................... Odd.
Rhode Island ................... Narragansett Bay .................................... DoD January ................... Odd.
South Carolina ................. Charleston ............................................... DoD July ......................... Even.
Columbia ................................................. DoD May ......................... Even.
South Dakota ................... Eastern South Dakota 1 ........................... DoD October ................... Even.
Tennessee ....................... Eastern Tennessee ................................. DoD February ................. Odd.
Memphis .................................................. DoD February ................. Even.
Nashville .................................................. DoD February ................. Even.

Texas ............................... Austin ....................................................... DoD June ........................ Even.
Corpus Christi .......................................... DoD June ........................ Even.
443
Pt. 532, Subpt. B, App. B 5 CFR Ch. I (1116 Edition)

agency survey even
Dallas-Fort Worth .................................... DoD October ................... Odd.

El Paso .................................................... DoD April ........................ Even.
Houston-Galveston-Texas City ............... DoD March ...................... Even.
San Antonio ............................................. DoD June ........................ Odd.
Texarkana ................................................ DoD April ........................ Odd.
Waco ....................................................... DoD May ......................... Odd.
Western Texas ........................................ DoD May ......................... Odd.
Wichita Falls-Southwestern Oklahoma ... DoD August .................... Even.
Utah ................................. Utah ......................................................... DoD July ......................... Odd.
Virginia ............................. Norfolk-Portsmouth-Newport News- DoD May ......................... Even.
Hampton.
Richmond ................................................ DoD November ............... Odd.
Roanoke .................................................. DoD November ............... Even.
Washington ...................... Seattle-Everett-Tacoma ........................... DoD September .............. Even.
Southeastern Washington-Eastern Or- DoD June ........................ Odd.
egon.
Spokane .................................................. DoD July ......................... Odd.
West Virginia ................... West Virginia ........................................... DoD March ...................... Odd.
Wisconsin ........................ Madison ................................................... DoD July ......................... Even.
Milwaukee ................................................ DoD June ........................ Odd.
Southwestern Wisconsin ......................... DoD June ........................ Even.
Wyoming .......................... Wyoming .................................................. DoD January ................... Even.
1 The revised fiscal year entries are scheduled to begin for Augusta, Maine, in fiscal year 1996; for Buffalo, New York, and
Southwestern Michigan in fiscal year 1997; and for Eastern South Dakota in fiscal year 1998.
[46 FR 21344, Apr. 10, 1981]

EDITORIAL NOTE: For FEDERAL REGISTER citations affecting appendix A to subpart B of part
532, see the List of CFR Sections Affected, which appears in the Finding Aids section of the
printed volume and at www.fdsys.gov.
APPENDIX B TO SUBPART B OF PART the State. Information given for each wage
532NATIONWIDE SCHEDULE OF NON- area includes
APPROPRIATED FUND REGULAR WAGE (1) The lead agency responsible for con-
SURVEYS ducting the survey;
(2) The month in which the survey will
This appendix shows the annual schedule begin; and
of NAF wage surveys. It lists all States al- (3) Whether full-scale surveys will be con-
phabetically, each State being followed by ducted in odd or even numbered calendar
an alphabetical listing of all wage areas in years.
Beginning month of Calendar year of full-

State Wage area survey scale survey odd or even
Alabama ..................................... Calhoun ...................................................... April .......................... Even.

Madison ..................................................... April .......................... Even.
Montgomery ............................................... April .......................... Odd.
Alaska ........................................ Anchorage .................................................. June ......................... Even.
Arizona ....................................... Maricopa .................................................... October .................... Even.
Pima ........................................................... October .................... Even.
Yuma .......................................................... October .................... Even.
Arkansas .................................... Pulaski ....................................................... April .......................... Odd.
California .................................... Kern ........................................................... September ............... Odd.
Los Angeles ............................................... September ............... Even.
Monterey .................................................... September ............... Odd.
Orange ....................................................... September ............... Even.
Riverside .................................................... September ............... Even.
Sacramento ................................................ February .................. Odd.
San Bernardino .......................................... September ............... Even.
San Diego .................................................. September ............... Odd.
San Joaquin ............................................... February .................. Odd.
Santa Barbara ............................................ September ............... Even.
Solano ........................................................ September ............... Odd.
Ventura ...................................................... September ............... Even.
Colorado ..................................... Arapahoe-Denver ....................................... July .......................... Even.
El Paso ...................................................... July .......................... Even.
Connecticut ................................ New London ............................................... July .......................... Even.

Delaware .................................... Kent ............................................................ August ...................... Odd.
District of Columbia .................... Washington, DC ......................................... August ...................... Even.
444
Office of Personnel Management Pt. 532, Subpt. B, App. B

Florida ........................................ Bay ............................................................. January .................... Even.

Brevard ...................................................... January .................... Odd.
Miami-Dade ................................................ January .................... Odd.
Duval .......................................................... January .................... Odd.
Escambia ................................................... January .................... Even.
Hillsborough ............................................... January .................... Odd.
Monroe ....................................................... January .................... Odd.
Okaloosa .................................................... January .................... Even.
Orange ....................................................... January .................... Even.
Georgia ...................................... Chatham .................................................... March ....................... Odd.
Cobb .......................................................... June ......................... Odd.
Columbus ................................................... June ......................... Odd.
Dougherty .................................................. March ....................... Odd.
Houston ...................................................... April .......................... Odd.
Lowndes ..................................................... March ....................... Odd.
Richmond ................................................... April .......................... Odd.
Guam ......................................... Guam ......................................................... September ............... Even.
Hawaii ........................................ Honolulu ..................................................... May .......................... Even.
Idaho .......................................... Ada-Elmore ................................................ July .......................... Odd.
Illinois ......................................... Lake ........................................................... April .......................... Even.
St. Clair ...................................................... April .......................... Even.
Kansas ....................................... Leavenworth-Jackson-Johnson ................. April .......................... Even.
Sedgwick .................................................... April .......................... Odd.
Kentucky .................................... Christian-Montgomery ................................ February .................. Even.
Hardin-Jefferson ........................................ March ....................... Even.
Louisiana .................................... Bossier-Caddo ........................................... March ....................... Odd.
Orleans ...................................................... June ......................... Odd.
Rapides ...................................................... March ....................... Odd.
Maine ......................................... York ............................................................ October .................... Odd.
Maryland .................................... Anne Arundel ............................................. August ...................... Even.
Charles-St. Marys ..................................... August ...................... Even.
Frederick .................................................... August ...................... Even.
Harford ....................................................... May .......................... Even.
Montgomery-Prince Georges .................... August ...................... Even.
Massachusetts ........................... Hampden ................................................... October .................... Odd.
Middlesex ................................................... October .................... Odd.
Michigan ..................................... Macomb ..................................................... May .......................... Odd.
Minnesota ................................... Hennepin .................................................... July .......................... Odd.
Mississippi .................................. Harrison ..................................................... March ....................... Even.
Lauderdale ................................................. March ....................... Odd.
Lowndes ..................................................... March ....................... Odd.
Montana ..................................... Cascade ..................................................... July .......................... Odd.
Nebraska .................................... Douglas-Sarpy ........................................... April .......................... Even.
Nevada ....................................... Churchill-Washoe ....................................... January .................... Even.
Clark ........................................................... January .................... Even.
New Jersey ................................ Burlington ................................................... August ...................... Odd.
Morris ......................................................... August ...................... Odd.
New Mexico ............................... Bernalillo .................................................... February .................. Odd.
Curry .......................................................... June ......................... Odd.
Dona Ana ................................................... February .................. Odd.
New York ................................... Jefferson .................................................... May .......................... Odd.
Kings-Queens ............................................ October .................... Even.
Niagara ...................................................... May .......................... Odd.
Orange ....................................................... May .......................... Odd.
North Carolina ............................ Craven ....................................................... March ....................... Even.
Cumberland ............................................... March ....................... Even.
Onslow ....................................................... February .................. Even.
Wayne ........................................................ March ....................... Even.
North Dakota .............................. Grand Forks ............................................... July .......................... Odd.
Ward .......................................................... July .......................... Odd.
Ohio ............................................ Greene-Montgomery .................................. April .......................... Odd.
Oklahoma ................................... Comanche .................................................. March ....................... Even.
Oklahoma ................................................... March ....................... Even.
Pennsylvania .............................. Allegheny ................................................... May .......................... Odd.
Cumberland ............................................... May .......................... Even.
York ............................................................ May .......................... Even.
Puerto Rico ................................ Guaynabo-San Juan .................................. February .................. Even.
Rhode Island .............................. Newport ...................................................... July .......................... Even.
South Carolina ........................... Charleston .................................................. February .................. Even.
Richland ..................................................... March ....................... Even.
South Dakota ............................. Pennington ................................................. June ......................... Even.

Tennessee ................................. Shelby ........................................................ February .................. Even.
Texas ......................................... Bell ............................................................. June ......................... Odd.
445
Pt. 532, Subpt. B, App. C 5 CFR Ch. I (1116 Edition)

Bexar .......................................................... June ......................... Even.

Dallas ......................................................... June ......................... Even.
El Paso ...................................................... February .................. Odd.
McLennan .................................................. May .......................... Odd.
Nueces ....................................................... June ......................... Even.
Tarrant ....................................................... June ......................... Even.
Taylor ......................................................... June ......................... Odd.
Tom Green ................................................. June ......................... Odd.
Wichita ....................................................... March ....................... Even.
Utah ............................................ Davis-Salt Lake-Weber .............................. July .......................... Odd.
Virginia ....................................... Alexandria-Arlington-Fairfax ...................... August ...................... Even.
Chesterfield-Richmond .............................. August ...................... Odd.
Hampton-Newport News ............................ May .......................... Even.
Norfolk-Portsmouth-Virginia Beach ........... May .......................... Even.
Prince William ............................................ August ...................... Even.
Washington ................................ Kitsap ......................................................... June ......................... Even.
Pierce ......................................................... July .......................... Even.
Snohomish ................................................. July .......................... Even.
Spokane ..................................................... July .......................... Odd.
Wyoming .................................... Laramie ...................................................... July .......................... Even.
[46 FR 21344, Apr. 10, 1981]

EDITORIAL NOTE: For FEDERAL REGISTER citations affecting appendix B to subpart B of part
532, see the List of CFR Sections Affected, which appears in the Finding Aids section of the
printed volume and at www.fdsys.gov.
APPENDIX C TO SUBPART B OF PART Area of Application. Survey area plus:

532APPROPRIATED FUND WAGE AND Alabama:
SURVEY AREAS Cherokee
Clay
This appendix lists the wage area defini- Cleburne
tions for appropriated fund employees. With De Kalb
a few exceptions, each area is defined in Randolph
terms of county units, independent cities, or,
BIRMINGHAM
in the New England States, of entire town-
ship or city units. Each wage area definition Survey Area
consists of:
Alabama:
(1) Wage area title. Wage areas usually
Jefferson
carry the title of the principal city in the
St. Clair
area. Sometimes, however, the area title re- Shelby
flects a broader geographic area, such as Wy- Tuscaloosa
oming or Eastern Tennessee. Walker
(2) Survey area definition. Lists each coun-
ty, independent city, or township in the sur- Area of Application. Survey area plus:
vey area. Alabama:
(3) Area of application definition. Lists each Bibb
county, independent city, or township which, Blount
in addition to the survey area, is in the area Chilton
of application. Cullman
Fayette
DEFINITIONS OF WAGE AND WAGE SURVEY Greene
AREAS Hale
Lamar
ALABAMA Marengo
Perry
ANNISTON-GADSDEN Pickens
Survey Area DOTHAN
Alabama: Survey Area
Calhoun
Alabama:
Etowah Dale
Talladega Houston
446
Office of Personnel Management Pt. 532, Subpt. B, App. C
Georgia: Area of Application. Survey area plus:
Early
Colorado:
Area of Application. Survey area plus: Dolores
Gunnison (Only includes the Curecanti Na-
Alabama: tional Recreation Area portion)
Barbour La Plata
Coffee Montezuma
Geneva Montrose
Henry Ouray
Georgia: San Juan
Clay San Miguel
Miller Utah:
Seminole Kane
San Juan (Does not include the
HUNTSVILLE
Canyonlands National Park portion.)
Survey Area
PHOENIX
Alabama:
Limestone Survey Area
Madison Arizona:
Marshall Gila
Morgan Maricopa
Area of Application. Survey area plus: Area of Application. Survey area plus:
Alabama: Arizona:
Colbert Pinal
Franklin Yavapai
Jackson
Lauderdale TUCSON
Lawrence
Marion Survey Area
Winston Arizona:
Tennessee: Pima
Franklin
Giles Area of Application. Survey area plus:
Lawrence Arizona:
Lincoln Cochise
Moore Graham
Wayne Greenlee
Santa Cruz
ALASKA
ARKANSAS
Survey Area
Alaska: LITTLE ROCK
Anchorage
Survey Area
Fairbanks
Juneau (and the areas within a 24-kilo- Arkansas:
meter (15-mile) radius of their corporate Jefferson
city limits) Pulaski
Saline
Area of Application.
Area of Application. Survey area plus:
State of Alaska (except special area sched-
ules) Arkansas:
Arkansas
ARIZONA Ashley
Baxter
NORTHEASTERN ARIZONA Boone
Survey Area Bradley
Calhoun
Arizona: Chicot
Apache Clay
Coconino Clark
Navajo Cleburne
New Mexico: Cleveland

McKinley Conway
San Juan Dallas
447
Desha Inyo (Includes the China Lake Naval Weap-
Drew ons Center portion only)
Faulkner Kern (Includes the China Lake Naval
Franklin Weapons Center, Edwards Air Force
Fulton Base, and portions occupied by Federal
Garland activities at Boron (City) only)
Grant Orange
Greene Riverside (Includes the Joshua Tree Na-
Hot Spring tional Monument portion only)
Independence San Bernardino (All of San Bernardino
Izard
County except that portion occupied by,
Jackson
and south and west of, the Angeles and
Johnson
San Bernardino National Forests)
Lawrence
Lincoln Ventura
Logan SACRAMENTO
Lonoke
Marion Survey Area
Monroe
Montgomery California:
Newton Placer
Ouachita Sacramento
Perry Sutter
Phillips Yolo
Pike Yuba
Polk
Pope Area of Application. Survey area plus:
Prairie
California:
Randolph
Scott Alpine
Searcy Amador
Sharp Butte
Stone Colusa
Union Del Norte
Van Buren El Dorado
White Glenn
Woodruff Humboldt
Yell Lake
Modoc
CALIFORNIA Nevada
FRESNO Plumas
Shasta
Survey Area Sierra
Siskiyou
California:
Fresno Tehama
Kings Trinity
Tulare
SALINAS-MONTEREY
Survey Area
California:
Kern (Does not include China Lake Naval California:
Weapons Center, Edwards Air Force Monterey
Base, and portions occupied by Federal Area of Application. Survey area plus:
activities in Boron (City))
Madera (Does not include Devils Postpile California:
National Monument and Yosemite Na- San Benito
tional Park portions)
SAN BERNARDINO-RIVERSIDE-ONTARIO
LOS ANGELES
Survey Area
Survey Area
California:
California: Riverside (Does not include the Joshua
Los Angeles Tree National Monument portion)
San Bernardino (Only that portion occu-

pied by, and south and west of the Ange-
California: les and San Bernardino National Forests)
448
Area of Application. Survey area. Adams
Arapahoe
SAN DIEGO Boulder
Broomfield
Survey Area
Denver
California: Douglas
San Diego Gilpin
Jefferson
California:
Imperial Colorado:
Arizona: Clear Creek
La Paz Eagle
Yuma Elbert
Garfield
SAN FRANCISCO Grand
Jackson
Survey Area
Lake
California: Larimer
Alameda Logan
Contra Costa Morgan
Marin Park
Napa Phillips
San Francisco Pitkin
San Mateo Rio Blanco
Santa Clara Routt
Solano Sedgwick
Summit
Area of Application. Survey area plus: Washington
California: Weld
Mendocino Yuma
Santa Cruz
Sonoma SOUTHERN COLORADO
SANTA BARBARA Survey Area

Colorado:
Survey Area
El Paso
California: Pueblo
Santa Barbara Teller
California: Colorado:
San Luis Obispo Alamosa
Archuleta
STOCKTON Baca
Bent
Survey Area
Chaffee
Calfornia: Cheyenne
San Joaquin Conejos
Costilla
Area of Application. Survey area plus: Crowley
California: Custer
Calaveras Delta
Madera (Only includes Yosemite National Fremont
Park portion) Gunnison (Does not include the Curecanti
Mariposa National Recreation Area portion)
Merced Hinsdale
Stanislaus Huerfano
Tuolumne Kiowa
Kit Carson
COLORADO Las Animas
Lincoln
DENVER Mineral
Otero
Survey Area
Prowers
Colorado: Rio Grande
449
Saguache Falls Church
Manassas
CONNECTICUT Manassas Park
Virginia (counties):
NEW HAVENHARTFORD
Arlington
Survey Area Fairfax
Loudoun
Connecticut: Prince William
Hartford
New Haven Area of Application. Survey area plus:
Area of application. Survey area plus: Maryland:
Calvert
Connecticut: St. Marys
Fairfield Virginia (city):
Litchfield Fredericksburg
Middlesex Virginia (counties):
Tolland Clarke
NEW LONDON Culpeper
Fauquier
Survey Area King George
Rappahannock
Connecticut:
Spotsylvania
New London
Stafford
Area of application. Survey area plus: Warren
West Virginia:
Connecticut: Jefferson
Windham
FLORIDA
DELAWARE
COCOA BEACH-MELBOURNE
WILMINGTON
Survey Area
Survey Area
Florida:
Delaware: Brevard
Kent
New Castle Area of Application. Survey area plus:
Maryland:
Cecil Florida:
New Jersey: Indian River
Salem
JACKSONVILLE
Survey Area
Delaware:
Florida:
Sussex
Alachua
Maryland:
Baker
Caroline
Clay
Dorchester
Duval
Kent
Nassau
Somerset
Talbot St. Johns
Wicomico Area of Application. Survey area plus:
Worcester (Does not include the
Assateague Island portion) Florida:
Bradford
DISTRICT OF COLUMBIA, WASHINGTON, DC Citrus
Columbia
Survey Area Dixie
District of Columbia: Flagler
Washington, DC Gilchrist
Maryland: Hamilton
Charles Lafayette
Frederick Lake
Montgomery Levy
Prince Georges Madison
Virginia (cities): Marion

Alexandria Orange
Fairfax Osceola
450
Putnam Escambia
Seminole Mobile
Sumter Monroe
Suwannee Washington
Taylor
Union TAMPA-ST. PETERSBURG
Volusia
Survey Area
Georgia:
Camden Florida:
Charlton Hillsborough
Pasco
MIAMI Pinellas
Survey Area Area of Application. Survey area plus:
Florida: Florida:
Miami-Dade Charlotte
De Soto
Area of Application. Survey area plus: Hardee
Florida: Hernando
Broward Lee
Collier Manatee
Glades Polk
Hendry Sarasota
Highlands
Martin GEORGIA
Monroe ALBANY
Okeechobee
Palm Beach Survey Area
St. Lucie
Georgia:
PANAMA CITY Colquitt
Dougherty
Survey Area Lee
Florida: Mitchell
Bay Worth
Gulf Area of Application. Survey area plus:
Area of Application. Survey area plus: Georgia:
Florida: Atkinson
Calhoun Baker
Ben Hill
Franklin
Berrien
Gadsden
Brooks
Holmes
Calhoun
Jackson
Clinch
Jefferson
Coffee
Leon
Cook
Liberty
Decatur
Wakulla
Echols
Washington Grady
PENSACOLA Irwin
Lanier
Survey Area Lowndes
Randolph
Florida: Sumter
Escambia Terrell
Santa Rosa Thomas
Area of Application. Survey area plus: Tift
Turner
Florida Ware
Okaloosa
Walton ATLANTA
Alabama:
Survey Area
Baldwin
Clarke Georgia:
Conecuh Butts
Covington Cherokee
451
Clayton Burke
Cobb Elbert
De Kalb Emanuel
Douglas Glascock
Fayette Hart
Forsyth Jefferson
Fulton Jenkins
Gwinnett Lincoln
Henry Taliaferro
Newton
Warren
Paulding
Wilkes
Rockdale
Walton South Carolina:
Allendale
Area of Application. Survey area plus: Bamberg
Barnwell
Georgia:
Edgefield
Banks
McCormick
Barrow
Bartow COLUMBUS
Carroll
Chattooga Survey Area
Clarke
Coweta Alabama:
Dawson Autaugo
Fannin Elmore
Floyd Lee
Franklin Macon
Gilmer Montgomery
Gordon Russell
Greene Georgia
Habersham Chattahoochee
Hall Columbus
Haralson
Heard Area of Application. Survey area plus:
Jackson
Alabama:
Jasper
Bullock
Lamar
Lumpkin Butler
Madison Chambers
Meriwether Coosa
Morgan Crenshaw
Murray Dallas
Oconee Lowndes
Oglethorpe Pike
Pickens Tallapoosa
Pike Wilcox
Polk Georgia:
Rabun Harris
Spalding Marion
Stephens Quitman
Towns Schley
Union Stewart
White Talbot
Whitfield Taylor
Troup
AUGUSTA Webster
Survey Area MACON
Georgia:
Columbia Survey Area
McDuffie Georgia:
Richmond Bibb
South Carolina: Houston
Aiken Jones
Laurens
Twiggs
Georgia: Wilkinson
452
Area of Application. Survey area plus: Maui (Maui county includes the islands of
Maui, Molokai, Lanai and Kohoolawe.)
Georgia:
Baldwin IDAHO
Bleckley
Crawford BOISE
Crisp
Dodge Survey Area
Dooly Idaho:
Hancock Ada
Johnson Boise
Macon Canyon
Monroe Elmore
Montgomery Gem
Peach
Pulaski Area of Application. Survey area plus:
Putnam
Idaho:
Telfair
Adams
Treutlen
Bannock
Upson
Bear Lake
Washington
Bingham
Wheeler
Blaine
Wilcox
Bonneville
SAVANNAH Butte
Camas
Survey Area Caribou
Cassia
Georgia:
Clark
Bryan
Custer
Chatham
Fremont
Effingham
Gooding
Liberty
Jefferson
Area of Application. Survey area plus: Jerome
Lemhi
Georgia: Lincoln
Appling Madison
Bacon Minidoka
Brantley Oneida
Bulloch Owyhee
Candler Payette
Evans Power
Glynn Teton
Jeff Davis Twin Falls
Long Valley
McIntosh Washington
Pierce
Screven ILLINOIS
Tattnall
Toombs CENTRAL ILLINOIS
Wayne
Survey Area
South Carolina:
Beaufort (The portion south of Broad Illinois:
River) Champaign
Hampton Menard
Jasper Sangamon
Vermilion
HAWAII
Survey Area
Illinois:
Hawaii: Christian
Honolulu Clark
Coles
Crawford
Hawaii: Cumberland
Hawaii De Witt
Kauai (Kauai county includes the islands Douglas
of Kauai and Niihau.) Edgar
453
Ford Pike
Jasper Posey
Logan Spencer
McLean Vanderburgh
Macon Warrick
Moultrie Illinois:
Piatt Edwards
Shelby Gallatin
Hardin
CHICAGO Lawrence
Richland
Survey Area
Wabash
Illinois: White
Cook Kentucky:
Du Page Crittenden
Kane Daviess
Lake Hancock
McHenry Henderson
Will Livingston
McLean
Area of Application. Survey area plus: Ohio
Illinois: Union
Boone Webster
De Kalb
FORT WAYNE-MARION
Grundy
Iroquois Survey Area
Kankakee
Kendall Indiana:
La Salle Adams
Lee Allen
Livingston DeKalb
Ogle Grant
Stephenson Huntington
Winnebago Wells
Indiana:
Jasper
Lake Indiana:
La Porte Blackford
Newton Case
Porter Elkhart
Pulaski Fulton
Starke Jay
Wisconsin: Kosciusko
Kenosha Lagrange
Marshall
INDIANA Miami
Noble
BLOOMINGTON-BEDFORD-WASHINGTON
St. Joseph
Survey Area Steuben
Wabash
Indiana: White
Daviess Whitley
Greene Ohio:
Knox Allen
Lawrence Defiance
Martin Henry
Monroe Mercer
Orange Paulding
Putnam
Van Wert
Indiana: Williams
Crawford
Dubois INDIANAPOLIS
Gibson
Survey Area
Jackson
Owen Indiana:
Perry Boone
454
Hamilton Van Buren
Hancock Wapello
Hendricks Washington
Johnson Winneshiek
Marion
Morgan DAVENPORT-ROCK ISLAND-MOLINE
Shelby
Survey Area
Area of Application. Survey area plus: Iowa:
Indiana: Scott
Bartholomew Illinois:
Benton Henry
Brown Rock Island
Carroll
Clay Area of Application. Survey area plus
Clinton Iowa:
Decatur Clinton
Delaware Des Moines
Fayette Dubuque
Fountain Jackson
Henry Lee
Howard Louisa
Madison Muscatine
Montgomery Illinois:
Parke Adams
Putnam Brown
Rush Bureau
Sullivan Carroll
Tippecanoe Cass
Tipton Fulton
Vermillion Hancock
Vigo Henderson
Warren Jo Daviess
IOWA Knox
McDonough
CEDAR RAPIDS-IOWA CITY Marshall
Mason
Survey Area Mercer
Iowa: Peoria
Benton Putnam
Black Hawk Schuyler
Johnson Stark
Linn Tazewell
Warren
Area of Application. Survey area plus: Whiteside
Woodford
Iowa:
Allamakee DES MOINES
Bremer
Buchanan Survey Area
Butler
Iowa:
Cedar
Chickasaw Polk
Clayton Story
Davis Warren
Delaware Area of Application. Survey area plus:
Fayette
Floyd Iowa:
Grundy Adair
Henry Appanoose
Howard Boone
Iowa Calhoun
Jefferson Carroll
Jones Cerro Gordo
Keokuk Clarke
Mitchell Dallas
Tama Decatur
455
Franklin Chautauqua
Greene Cheyenne
Guthrie Clark
Hamilton Comanche
Hancock Cowley
Hardin Decatur
Humboldt Edwards
Jasper Elk
Kossuth Ellis
Lucas
Ellsworth
Madison
Finney
Mahaska
Ford
Marion
Marshall Gove
Monroe Graham
Poweshiek Grant
Ringgold Gray
Union Greeley
Wayne Greenwood
Webster Hamilton
Winnebago Harper
Worth Harvey
Wright Haskell
Hodgeman
KANSAS Jewell
Kearny
TOPEKA
Kingman
Survey Area Kiowa
Labette
Kansas: Lane
Geary
Lincoln
Jefferson
Logan
Osage
McPherson
Shawnee
Marion
Area of Application. Survey area plus: Meade
Mitchell
Kansas: Montgomery
Brown
Morton
Clay
Neosho
Cloud
Ness
Coffey
Dickinson Norton
Jackson Osborne
Lyon Pawnee
Marshall Phillips
Morris Pratt
Nemaha Rawlins
Ottawa Reno
Pottawatomie Rice
Republic Rooks
Riley Rush
Saline Russell
Webaunsee Scott
Washington Seward
Sheridan
WICHITA Sherman
Smith
Survey Area
Stafford
Kansas: Stanton
Butler Stevens
Sedgwick Sumner
Thomas
Area of Application. Survey area plus: Trego
Kansas: Wallace
Barber Wichita
Barton Wilson
Chase Woodson
456
KENTUCKY Floyd
Jefferson
LEXINGTON
Survey Area
Kentucky:
Kentucky: Breckinridge
Bourbon Grayson
Clark Hart
Fayette Henry
Jessamine Larue
Madison Meade
Scott Nelson
Woodford Shelby
Spencer
Trimble
Kentucky: Indiana:
Anderson Harrison
Bath Jennings
Bell Scott
Boyle Washington
Breathitt
Casey LOUISIANA
Clay
LAKE CHARLES-ALEXANDRIA
Estill
Fleming Survey Area
Franklin
Garrard Louisiana:
Green Allen
Harrison Beauregard
Jackson Calcasieu
Knott Grant
Knox Rapides
Laurel Sabine
Lee Vernon
Leslie
Lincoln
McCreary Louisiana:
Marion Acadia
Menifee Avoyelles
Mercer Caldwell
Montgomery Cameron
Morgan Catahoula
Nicholas Concordia
Owen Evangeline
Owsley Franklin
Perry Iberia
Powell Jefferson Davis
Pulaski Lafayette
Robertson La Salle
Rockcastle Madison
Rowan Natchitoches
Taylor St. Landry
Washington St. Martin
Wayne Tensas
Whitley Vermilion
Wolfe Winn
LOUISVILLE NEW ORLEANS
Survey Area Survey Area
Kentucky: Louisiana:
Bullitt Jefferson
Hardin Orleans
Jefferson Plaquemines
Oldham St. Bernard

Indiana: St. Charles
Clark St. John the Baptist
457
St. Tammany Aroostook
Penobscot
Louisiana:
Ascension Maine:
Assumption Hancock
East Baton Rouge Piscataquis
East Feliciana Somerset
Iberville Waldo
Lafourche Washington
Livingston
Pointe Coupee MARYLAND
St. Helena BALTIMORE
St. James
St. Mary Survey Area
Tangipahoa
Terrebonne Maryland:
Washington Baltimore City
West Baton Rouge Anne Arundel
West Feliciana Baltimore
Carroll
SHREVEPORT Harford
Howard
Survey Area
Louisiana: (parishes)
Bossier Maryland:
Caddo Queen Annes
Webster
HAGERSTOWN-MARTINSBURG-CHAMBERSBURG
Survey Area
Louisiana: (parishes)
Bienville Maryland:
Claiborne Washington
De Soto Pennsylvania:
East Carroll Franklin
Jackson West Virginia:
Lincoln Berkeley
Morehouse Area of Application. Survey area plus:
Ouachita
Red River Maryland:
Richland Allegany
Union Garrett
West Carroll Pennsylvania:
Texas: Fulton
Cherokee Virginia (cities):
Gregg Harrisonburg
Harrison Winchester
Panola Virginia (counties):
Rusk Frederick
Upshur Madison
Page
MAINE Rockingham
Shenandoah
AUGUSTA West Virginia:
Survey Area Hampshire
Hardy
Maine: Mineral
Kennebec Morgan
Knox
Lincoln MASSACHUSETTS
Area of Application. Survey area. BOSTON
CENTRAL AND NORTHERN MAINE Survey Area

Massachusetts:
Survey Area
The following cities and towns in:
Maine: Essex County
458
Beverly Islington
Boxford Medfield
Danvers Medway
Hamilton Millis
Lynn Milton
Lynnfield Needham
Manchester Norfolk
Marblehead North Cohasset
Middleton Norwood
Nahant Quincy
Peabody Randolph
Salem Sharon
Saugus South Walpole
South Hamilton Stoughton
Swampscott Walpole
Topsfield Wellesley
Wenham Westwood
Middlesex County Weymouth
Acton Wrentham
Arlington Plymouth County
Ashland Abington
Bedford Duxbury
Belmont Hanover
Boxborough Hanson
Burlington Hingham
Cambridge Hull
Carlisle Kingston
Concord Marshfield
Everett Marshfield Hills
Framingham North Scituate
Holliston Norwell
Lexington Oceanbluff
Lincoln Pembroke
Malden Rockland
Medford Scituate
Melrose Shore Acres
Natick South Duxbury
Newton South Hingham
North Reading West Hanover
North Wilmington Suffolk County
Reading
Sherborn Area of Application. Survey area plus:
Somerville Massachusetts:
Stoneham Barnstable
Sudbury Dukes
Wakefield Nantucket
Waltham Plymouth (non-survey area part)
Watertown The following cities and towns in:
Wayland Bristol County
West Concord Easton
Weston Essex County
Wilmington Andover
Winchester Essex
Woburn Gloucester
Norfolk County Ipswich
Bellingham Lawrence
Braintree Methuen
Brookline Rockport
Canton Rowley
Cohasset Middlesex County
Dedham Ayer
Dover Billerica
East Walpole Chelmsford
Foxborough Dracut
Franklin Dunstable
Harding Groton
Holbrook Hopkinton
459
Hudson Worthington
Littleton Hampden County
Lowell Blandford
Marlborough Brimfield
Maynard Chester
Pepperell Granville
Stow Holland
Tewksbury Montgomery
Tyngsborough Russell
Westford Tolland
Norfolk County Wales
Avon Middlesex County
Ashby
CENTRAL AND WESTERN MASSACHUSETTS Shirley
Survey Area Townsend
New Hampshire:
Massachusetts: Belknap
The following cities and towns in: Carroll
Hampden County Cheshire
Agawam Grafton
Chicopee Hillsborough
East Longmeadow Merrimack
Feeding Hills Sullivan
Hampden Vermont:
Holyoke Addison
Longmeadow Bennington
Ludlow Caledonia
Monson Essex
Palmer Lamoille
Southwick Orange
Springfield Orleans
Three Rivers Rutland
Westfield Washington
West Springfield Windham
Wilbraham Windsor
Hampshire County
Easthampton MICHIGAN
Granby
Hadley DETROIT
Northampton Survey Area
South Hadley
Worcester County Michigan:
Warren Lapeer
West Warren Livingston
Macomb
Area of Application. Survey area plus: Oakland
Massachusetts: St. Clair
Berkshire Wayne
Franklin Area of Application. Survey area plus:
Worcester (except Blackstone and Mill-
ville) Michigan:
The following cities and towns in: Arenac
Hampshire County Bay
Amherst Clare
Belchertown Clinton
Chesterfield Eaton
Cummington Genesee
Goshen Gladwin
Hatfield Gratiot
Huntington Huron
Middlefield Ingham
Pelham Isabella
Plainfield Lenawee
Southampton Midland
Ware Monroe
Westhampton Saginaw
Williamsburg Sanilac
460
Shiawassee Allegan
Tuscola Berrien
Washtenaw Branch
Ohio: Cass
Fulton Hillsdale
Lucas Ionia
Wood Jackson
Kent
NORTHWESTERN MICHIGAN Lake
Survey Area Mason
Mecosta
Michigan: Montcalm
Delta Muskegon
Dickinson Newaygo
Marquette Oceana
Osceola
Area of Application. Survey area plus: Ottawa
Michigan: St. Joseph
Alcona (Effective date January 1, 1994.)
Alger MINNESOTA
Alpena (Effective date January 1, 1994.) DULUTH
Antrim (Effective date January 1, 1994.)
Baraga Survey Area
Benzie (Effective date January 1, 1994.)
Charlevoix (Effective date January 1, 1994.) Minnesota:
Cheboygan (Effective date January 1, 1994.) Carlton
Chippewa St. Louis
Crawford (Effective date January 1, 1994.) Wisconsin:
Emmet (Effective date January 1, 1994.) Douglas
Gogebic
Grand Traverse (Effective date January 1, Area of Application. Survey area plus:
1994.) Minnesota:
Houghton Aitkin
Iosco (Effective date January 1, 1994.) Becker (Including the White Earth Indian
Iron Reservation portion only)
Kalkaska (Effective date January 1, 1994.) Beltrami
Keweenaw Cass
Leelanau (Effective date January 1, 1994.) Clearwater
Luce Cook
Mackinac Crow Wing
Manistee (Effective date January 1, 1994.) Hubbard
Menominee Itasca
Missaukee (Effective date January 1, 1994.) Koochiching
Montmorency (Effective date January 1, Lake
1994.) Lake of the Woods
Ogemaw (Effective date January 1, 1994.) Mahnomen
Ontonagon Pine
Oscoda (Effective date January 1, 1994.) Wisconsin:
Otsego (Effective date January 1, 1994.) Ashland
Presque Isle (Effective date January 1, Bayfield
1994.) Burnett
Roscommon (Effective date January 1, Iron
1994.) Sawyer
Schoolcraft Washburn
Wexford (Effective date January 1, 1994.)
MINNEAPOLIS-ST. PAUL
SOUTHWESTERN MICHIGAN
Survey Area
Survey Area
Minnesota:
Michigan: Anoka
Barry Carver
Calhoun Chisago
Kalamazoo Dakota
Van Buren Hennepin
Ramsey
Scott
Michigan: Washington
461
Wright Stone (Effective as of November 1, 1997.)
Wisconsin:
St. Croix JACKSON
Area of Application. Survey area plus: Survey Area

Minnesota: Mississippi:
Benton Hinds
Big Stone Rankin
Blue Earth Warren
Brown
Chippewa Area of Application. Survey area plus:
Cottonwood Mississippi:
Dodge Adams (Effective as of February 1, 1997.)
Douglas Amite
Faribault Attala
Freeborn Claiborne (Effective as of February 1, 1997.)
Freeborn Copiah
Goodhue Covington
Grant Franklin
Isanti Holmes
Kanabec Humphreys
Kandiyohi Issaquena
Lac Qui Parle Jefferson (Effective as of February 1, 1997.)
Le Sueur Jefferson Davis
McLeod Lawrence
Martin Lincoln
Meeker Madison
Mille Lacs Marion
Morrison Pike
Mower Scott
Nicollet Sharkey
Olmsted Simpson
Pope Smith
Redwood Walthall
Renville Wilkinson
Rice Yazoo
Sherburne
Sibley MERIDIAN
Stearns
Steele Survey Area
Stevens
Mississippi:
Swift
Forest
Todd
Lamar (Effective as of February 1, 1997.)
Traverse
Lauderdale
Wabasha
Alabama:
Wadena
Choctaw
Waseca
Watonwan Area of Application. Survey area plus:
Yellow Medicine
Wisconsin: Mississippi:
Pierce Clarke
Polk Greene
Jasper
MISSISSIPPI Jones
Kemper
BILOXI Leake
Survey Area Neshoba
Newton
Mississippi: Perry
Hancock Wayne
Harrison Alabama:
Jackson Sumter
Area of Application. Survey area plus: NORTHERN MISSISSIPPI
Mississippi:
Survey Area
George
Pearl River Mississippi:
462
Clay Bates
Grenada Buchanan
Lee Caldwell
Leflore Carroll
Lowndes Chariton
Monroe Clinton
Oktibbeha Cooper
Daviess
Area of Application. Survey area plus: De Kalb
Mississippi: Gentry
Alcorn Grundy
Bolivar Harrison
Calhoun Henry
Carroll Holt
Chickasaw Howard
Choctaw Johnson
Coahoma Lafayette
Itawamba Linn
Lafayette (Does not include the Holly Livingston
Springs National Forest portion) Macon
Montgomery Mercer
Noxubee Nodaway
Pontotoc (Does not include the Holly Pettis
Springs National Forest portion) Putnam
Prentiss Saline
Quitman Schuyler
Sunflower Sullivan
Tallahatchie Worth
Tishomingo
ST. LOUIS
Union (Does not include the Holly Springs
National Forest portion) Survey Area
Washington
Webster Illinois:
Winston Clinton
Yalobusha Madison
Monroe
MISSOURI St. Clair
Missouri: (city)
KANSAS CITY St. Louis
Missouri: (counties)
Survey Area
Franklin
Kansas: Jefferson
Johnson St. Charles
Leavenworth St. Louis
Wyandotte
Missouri: Area of Application. Survey area plus:
Cass Illinois:
Clay Alexander
Jackson Bond
Platte Calhoun
Ray Clay
Effingham
Fayette
Kansas: Franklin
Allen Greene
Anderson Hamilton
Atchison Jackson
Bourbon Jefferson
Doniphan Jersey
Douglas Johnson
Franklin Macoupin
Linn Marion
Miami Massac
Missouri: Montgomery
Adair Morgan
Andrew Perry
Atchison Pike
463
Pope Iron
Pulaski Jasper
Randolph Lawrence
Saline Madison
Scott Maries
Union Miller
Washington Mississippi
Wayne Morgan
Williamson New Madrid
Missouri: Newton
Audrain Oregon
Bollinger Ozark
Boone Polk
Callaway Reynolds
Cape Girardeau Ripley
Clark St. Clair
Cole Scott
Crawford Shannon
Gasconade Stoddard
Knox Stone
Lewis Taney
Lincoln Texas
Marion Vernon
Moniteau Wayne
Monroe Wright
Montgomery
Osage MONTANA
Perry
Survey Area
Pike
Ralls Montana:
Randolph Cascade
St. Francois Lewis and Clark
Ste. Genevieve Yellowstone
Scotland
Shelby Area of Application. Survey area plus:
Warren Montana:
Washington Beaverhead
Big Horn
SOUTHERN MISSOURI
Blaine
Survey Area Broadwater
Carbon
Missouri: Carter
Christian Chouteau
Greene Custer
Laclede Daniels
Phelps Dawson
Pulaski Deer Lodge
Webster Fallon
Fergus
Flathead
Kansas: Gallatin
Cherokee Garfield
Crawford Glacier
Missouri: Golden Valley
Barry Granite
Barton Hill
Benton Jefferson
Butler Judith Basin
Camden Lake
Carter Liberty
Cedar Lincoln
Dade McCone
Dallas Madison
Dent Meagher
Douglas Mineral
Hickory Missoula
Howell Musselshell
464
Park Furnas
Petroleum Gage
Phillips Garfield
Pondera Gosper
Powder River Grant
Powell Greeley
Prairie Hall
Ravalli Hamilton
Richland Harlan
Roosevelt Hayes
Rosebud Hitchcock
Sanders Holt
Sheridan Hooker
Silver Bow Howard
Stillwater Jefferson
Sweet Grass Johnson
Teton Kearney
Toole Keith
Treasure Keya Paha
Valley Knox
Wheatland Lincoln
Wibaux Logan
Wyoming: Loup
Big Horn McPherson
Park Madison
Teton Merrick
Nance
NEBRASKA Nemaha
Nuckolls
OMAHA
Otoe
Survey Area Pawnee
Perkins
Nebraska: Phelps
Douglas Pierce
Lancaster Platte
Sarpy Polk
Iowa: Red Willow
Pottawattamie Richardson
Rock
Saline
Nebraska: Saunders
Adams Seward
Antelope Sherman
Arthur Stanton
Blaine Thayer
Boone Thomas
Boyd Thurston
Brown Valley
Buffalo Washington
Burt Wayne
Butler Webster
Cass Wheeler
Cedar York
Chase Iowa:
Cherry Adams
Clay Audubon
Colfax Buena Vista
Cuming Cass
Custer Cherokee
Dakota Clay
Dawson Crawford
Dixon Fremont
Dodge Harrison
Dundy Ida
Fillmore Mills
Franklin Monona
Frontier Montgomery
465
OBrien Androscoggin
Page Cumberland
Palo Alto Sagadahoc
Plymouth York
Pocahontas Massachusetts:
Sac The following cities and towns in:
Shelby Essex County
Sioux Amesbury
Taylor Georgetown
Woodbury Groveland
South Dakota Haverhill
Union Merrimac
Newbury
NEVADA Newburyport
North Andover
LAS VEGAS Salisbury
Survey Area South Byfield
West Newbury
Nevada: New Hampshire:
Clark Rockingham (except the following cities
Nye and towns: Newton, Plaistow, Salem, and
Westville)
Area of Application. Survey area plus: Stafford
Nevada:
Esmeralda Area of Application. Survey area plus:
Lincoln Maine
Arizona: Franklin
Mohave Oxford
California: New Hampshire
Inyo (Excludes the China Lake Naval Coos
Weapons Center portion only) The following cities and towns in:
Rockingham County
RENO Newton
Plaistow
Survey Area
Salem
Nevada: Westville
Lyon
Mineral NEW MEXICO
Storey
ALBUQUERQUE
Washoe
Survey Area
New Mexico:
Nevada (cities):
Bernalillo
Carson City
Sandoval
Nevada (counties):
Churchill Area of Application. Survey area plus:
Douglas
Elko New Mexico:
Eureka Catron
Humboldt Cibola
Lander Colfax
Pershing Curry
White Pine De Baca
California: Guadalupe
Lassen Harding
Madera (Includes only the Devils Postpile Lincoln (Does not include White Sands
National Monument portion) Missile Range portion)
Mono (Does not cover locations to which Los Alamos
Bridgeport, Calif, special schedule ap- Mora
plies) Quay
Rio Arriba
NEW HAMPSHIRE Roosevelt
San Miguel
PORTSMOUTH Santa Fe
Socorro (Does not include White Sands

Survey Area
Missile Range portion)
Maine: Taos
466
Torrance Suffolk
Union Westchester
Valencia New Jersey:
Bergen
NEW YORK: Essex
Hudson
ALBANY-SCHENECTADY-TROY
Middlesex
Survey Area Morris
Passaic
New York: Somerset
Albany Union
Montgomery
Rensselaer Area of Application. Survey area plus:
Saratoga
New York:
Schenectady
Putnam
Area of Application. Survey area plus: Richmond
Rockland
New York: New Jersey:
Columbia Hunterdon
Fulton Monmouth
Greene Ocean (Excluding the Fort Dix Military
Schoharie Reservation)
Warren Sussex
Washington Pennsylvania
Pike
BUFFALO
NORTHERN NEW YORK
Survey Area
New York: Survey Area
Erie New York:
Niagara Clinton
Franklin
Area of Application. Survey area plus: Jefferson
New York: St. Lawrence
Cattaraugus Vermont:
Chautauqua Chittenden
Pennsylvania: Franklin
Elk (Only includes the Allegheny National Grand Isle
Forest portion)
Forest (Only includes the Allegheny Na-
tional Forest portion) New York:
McKean Essex
Warren Lewis
NEWBURGH ROCHESTER
New York: New York:
Dutchess Livingston
Orange Monroe
Ulster Ontario
Orleans
Area of Application. Survey area plus: Steuben
New York: Wayne
Delaware
Sullivan
New York:
NEW YORK Allegany
Chemung
Survey Area
Genesee
New York: Schuyler
Bronx Seneca
Kings Wyoming
Nassau Yates
New York Pennsylvania:
Queens Tioga
467
SYRACUSE-UTICA-ROME Bladen
Caswell
Survey Area Chatham
New York: Davidson
Herkimer Davie
Madison Edgecombe
Oneida Franklin
Onondaga Forsyth
Oswego Granville
Guilford
Area of Application. Survey area plus: Halifax
Lee
New York: Montgomery
Broome Moore
Cayuga Nash
Chenango Northampton
Cortland Person
Hamilton Randolph
Otsego Richmond
Tioga Robeson
Tompkins Rockingham
NORTH CAROLINA Sampson
Scotland
ASHEVILLE Stokes
Surry
Survey Area Vance
North Carolina: Warren
Buncombe Wilson
Haywood Yadkin
Henderson South Carolina:
Madison Dillon
Transylvania Marion
Marlboro
CHARLOTTE
North Carolina:
Avery Survey Area
Burke North Carolina:
Caldwell Cabarrus
Cherokee Gaston
Clay Mecklenburg
Graham Rowan
Jackson Union
McDowell
Macon Area of Application. Survey area plus:
Mitchell
North Carolina:
Polk
Alexander
Rutherford
Anson
Swain
Catawba
Yancey Cleveland
CENTRAL NORTH CAROLINA Iredell
Lincoln
Survey Area Stanly
Wilkes
North Carolina: South Carolina:
Cumberland Chester
Durham Chesterfield
Harnett Lancaster
Hoke York
Johnston
Orange SOUTHEASTERN NORTH CAROLINA
Wake
Wayne Survey Area
North Carolina:
Brunswick
North Carolina: Carteret
Alamance Columbus
468
Craven McKenzie
Jones Mountrail
Lenoir Nelson
New Hanover Pembina
Onslow Pierce
Pamlico Ramsey
Pender Ransom
Renville
Area of Application. Survey area plus: Richland
North Carolina: Rolette
Beaufort Sargent
Bertie Sheridan
Dare Sioux
Duplin Slope
Greene Stark
Hertford Steele
Hyde Stutsman
Martin Towner
Pitt Walsh
Tyrrell Wells
Washington Williams
South Carolina: Minnesota:
Horry Becker (Excluding the White Earth Indian
Reservation portion)
NORTH DAKOTA Kittson
Marshall
Survey Area Norman
Otter Tail
North Dakota:
Pennington
Burleigh
Red Lake
Cass
Roseau
Grand Forks
Wilkin
McLean
Mercer OHIO
Morton
Oliver CINCINNATI
Traill
Ward Survey Area
Minnesota: Ohio:
Clay Clermont
Polk Hamilton
Warren
Area of Application. Survey area plus: Kentucky:
North Dakota: Boone
Adams Campbell
Barnes Kenton
Benson Indiana:
Billings Dearborn
Bottineau
Bowman Area of Application: Survey area plus:
Burke Ohio:
Cavalier Adams
Dickey Brown
Divide Butler
Dunn Highland
Eddy Indiana:
Emmons Franklin
Foster Ohio
Golden Valley Ripley
Grant Switzerland
Griggs Kentucky:
Hettinger Bracken
Kidder Carroll
La Moure Gallatin
Logan Grant
McHenry Mason
McIntosh Pendleton
469
CLEVELAND Clark
Greene
Survey Area Miami
Ohio: Montgomery
Cuyahoga Preble
Geauga
Lake Area of Application. Survey area plus:
Medina Ohio:
Auglaize
Clinton
Ohio: Darke
Ashland Logan
Ashtabula Shelby
Carroll Indiana:
Columbiana Randolph
Erie Union
Huron Wayne
Lorain
Mahoning OKLAHOMA
Ottawa
Portage OKLAHOMA CITY
Sandusky
Seneca Survey Area
Stark Oklahoma:
Summit Canadian
Trumbull Cleveland
Wayne McCain
Pennsylvania Oklahoma
Mercer Pottawatomie
COLUMBUS
Survey Area Oklahoma:
Ohio: Alfalfa
Delaware Atoka
Fairfield Beckham
Franklin Blaine
Licking Bryan
Madison Caddo
Pickaway Carter
Coal
Area of Application. Survey area plus: Custer
Ohio: Dewey
Coshocton Ellis
Crawford Garfield
Fayette Garvin
Guernsey Grady
Hancock Grant
Hardin Harper
Hocking Hughes
Holmes Johnston
Knox Kingfisher
Marion Lincoln
Morrow Logan
Muskingum Love
Perry Major
Richland Marshall
Ross Murray
Union Noble
Wyandot Payne
Pontotoc
DAYTON Roger Mills
Seminole
Survey Area
Washita
Ohio: Woods
Champaign Woodward
470
TULSA Wasco
Yamhill
Survey Area Washington:
Oklahoma: Cowlitz
Creek Klickitat
Mayes Pacific
Muskogee Skamania
Osage Wahkiakum
Pittsburg SOUTHWESTERN OREGON
Rogers
Tulsa Survey Area
Wagoner
Oregon:
Area of Application. Survey area plus: Douglas
Jackson
Oklahoma: Lane
Adair
Cherokee Area of Application. Survey area plus:
Choctaw
Oregon:
Craig
Benton
Delaware
Coos
Haskell
Crook
Kay
Curry
Latimer
Deschutes
LeFlore Jefferson
McCurtain Josephine
McIntosh Klamath
Nowata Lake
Okfuskee Lincoln
Okmulgee Linn
Ottawa
Pawnee PENNSYLVANIA
Pushmataha
Sequoyah HARRISBURG
Washington
Arkansas: Survey Area
Benton Pennsylvania:
Carroll Cumberland
Crawford Dauphin
Madison Lebanon
Sebastian York
Washington
McDonald Pennsylvania:
Adams
OREGON
Berks
PORTLAND Juniata
Lancaster
Survey Area Lycoming (Allenwood Federal Prison
Camp portion only)
Oregon: Mifflin
Clackamas Northumberland
Marion Perry
Multnomah Schuylkill
Polk Snyder
Washington Union
Washington:
Clark PHILADELPHIA
Oregon: Pennsylvania:
Clatsop Bucks
Columbia Chester
Gilliam Delaware
Hood River Montgomery

Sherman Philadelphia
Tillamook New Jersey:
471
Burlington SCRANTON-WILKES-BARRE
Camden
Gloucester Survey Area
Pennsylvania:
Area of Application. Survey area plus: Lackawanna
Pennsylvania: Luzerne
Carbon Monroe
Lehigh
Northampton
New Jersey: Pennsylvania:
Atlantic Bradford
Cape May Columbia
Cumberland Lycoming (Excluding Allenwood Federal
Mercer Prison Camp)
Ocean (Fort Dix Military Reservation Montour
only) Sullivan
Warren Susquehanna
Wayne
PITTSBURGH Wyoming
Survey Area PUERTO RICO
Pennsylvania: Survey Area

Allegheny Puerto Rico (Municipios):
Beaver San Juan
Butler Bayamon
Washington Canovanas
Westmoreland Carolina
Catano
Area of Application. Survey area plus: Guaynabo
Ohio: Humacao
Belmont Loiza
Harrison Toa Baja
Jefferson Trujillo Alto
Tuscarawas Area of Application: Puerto Rico
Pennsylvania:
Armstrong RHODE ISLAND
Bedford
Blair NARRAGANSETT BAY
Cambria Survey Area
Cameron
Centre Rhode Island:
Clarion Bristol
Clearfield Newport
Clinton The following cities and towns:
Crawford Kent County
Anthony
Elk (Does not include the Allegheny Na-
Coventry
tional Forest portion)
East Greenwich
Erie
Greene
Fayette
Warwick
Forest (Does not include the Allegheny Na- West Warwick
tional Forest portion) Providence County
Greene Ashton
Huntingdon Burrillville
Indiana Central Falls
Jefferson Cranston
Lawrence Cumberland
Potter Cumberland Hill
Somerset East Providence
Venango Esmond
West Virginia: Forestdale
Brooke Greenville
Hancock Harrisville
Marshall Johnston
Ohio Lincoln
472
Manville Fairhaven
Mapleville Freetown
North Providence Mansfield
North Smithfield New Bedford
Oakland Norton
Pascoag Raynham
Pawtucket Taunton
Providence
Saylesville SOUTH CAROLINA
Slatersville
CHARLESTON
Smithfield
Valley Falls Survey Area
Wallum Lake
Woonsocket South Carolina:
Washington County Berkeley
Davisville Charleston
Galilee Dorchester
Lafayette Area of Application. Survey area plus:
Narragansett
North Kingstown South Carolina:
Point Judith Beaufort (The portion north of Broad
Quonset Point River.)
Saunderstown Colleton
Slocum Georgetown
Massachusetts: Williamsburg
The following cities and towns:
Bristol County COLUMBIA
Attleboro Survey Area
Fall River
North Attleboro South Carolina:
Rehoboth Darlington
Seekonk Florence
Somerset Kershaw
Swansea Lee
Westport Lexington
Norfolk County Richland
Caryville Sumter
Plainville
South Bellingham Area of Application. Survey area plus:
Worcester County South Carolina:
Blackstone Abbeville
Millville Anderson
Calhoun
Cherokee
Rhode Island: Clarendon
The following cities and towns in: Fairfield
Kent County Greenville
West Greenwich Greenwood
Providence County Laurens
Foster Newberry
Glocester Oconee
Scituate Orangeburg
Washington County Pickens
Charlestown Saluda
Exeter Spartanburg
Hopkinton Union
New Shoreham
Richmond SOUTH DAKOTA
South Kingstown
EASTERN SOUTH DAKOTA
Westerly
Massachusetts: Survey Area
The following cities and towns in:
Bristol County South Dakota:
Acushnet Minnehaha
Berkley
Dartmouth
Dighton South Dakota:
473
Aurora TENNESSEE
Beadle
Bennett EASTERN TENNESSEE
Bon Homme
Survey Area
Brookings
Brown Tennessee:
Brule Carter
Buffalo Hawkins
Campbell Sullivan
Charles Mix Unicoi
Clark Washington
Clay Virginia (city):
Codington Bristol
Corson Virginia (counties):
Davison Scott
Day Washington
Deuel
Dewey Area of Application. Survey area plus:
Douglas Tennessee:
Edmunds Cocke
Faulk Greene
Grant Hancock
Gregory Johnson
Haakon Virginia:
Hamlin Buchanan
Hand Grayson
Hanson
Lee
Hughes
Russell
Hutchinson
Smyth
Hyde
Tazewell
Jerauld
North Carolina:
Jones
Alleghany
Kingsbury
Ashe
Lake
Watauga
Lincoln
Lyman Kentucky:
McCook Harlan
McPherson Letcher
Marshall MEMPHIS
Mellette
Miner Survey Area
Moody
Potter Arkansas:
Roberts Crittenden
Sanborn Mississippi
Spink Mississippi:
Stanley De Soto
Sully Tennessee:
Todd Shelby
Tripp Tipton
Turner
Walworth
Yankton Arkansas:
Ziebach Craighead
Iowa: Cross
Dickinson Lee
Emmet Poinsett
Lyon St. Francis
Osceola Mississippi:
Minnesota: Benton
Jackson Lafayette (Holly Springs National Forest
Lincoln portion only)
Lyon Marshall
Murray Panola
Nobles Pontotoc (Holly Springs National Forest

Pipestone portion only)
Rock Tate
474
Tippah Knox
Tunica Lewis
Union (Holly Springs National Forest por- Loudon
tion only) McMinn
Missouri: Macon
Dunklin Marion
Pemiscot Marshall
Tennessee: Maury
Carroll Meigs
Chester Monroe
Crockett Morgan
Dyer Overton
Fayette Perry
Gibson Pickett
Hardeman Polk
Hardin Putnam
Haywood Rhea
Lake Roane
Lauderdale Scott
Madison Sequatchie
McNairy Sevier
Obion Smith
Stewart
NASHVILLE Trousdale
Union
Survey Area Van Buren
Tennessee: Warren
Cheatham Weakley
Davidson White
Dickson Kentucky:
Montgomery Adair
Robertson Allen
Rutherford Ballard
Sumner Barren
Williamson Butler
Wilson Caldwell
Kentucky: Calloway
Christian Carlisle
Clinton
Area of Application. Survey area plus: Cumberland
Edmonson
Tennessee: Fulton
Anderson Graves
Bedford Hickman
Benton Hopkins
Bledsoe Logan
Blount Lyon
Bradley McCracken
Campbell Marshall
Cannon Metcalfe
Claiborne Monroe
Clay Muhlenberg
Coffee Russell
Cumberland Simpson
Decatur Todd
DeKalb Trigg
Fentress Warren
Grainger Georgia:
Grundy Catossa
Hamblen Dade
Hamilton Walker
Henderson
Henry TEXAS
Hickman
Houston AUSTIN
Humphreys
Survey Area
Jackson
Jefferson Texas:
475
Hays Parker
Milam Rockwall
Travis Tarrant
Williamson Wise
Texas: Texas:
Bastrop Cooke
Blanco Delta
Burnet Erath
Caldwell Fannin
Fayette Henderson
Lee Hopkins
Llano Hunt
Mason Jack
San Saba Lamar
Montague
CORPUS CHRISTI Navarro
Palo Pinto
Survey Area Rains
Texas: Smith
Nueces Somervell
San Patricio Van Zandt
Wood
EL PASO
Texas:
Aransas Survey Area
Bee
New Mexico:
Brooks (Effective as of the first day of the
Dona Ana
first applicable pay period beginning on
Otero
or after April 17, 1996.)
Texas:
Calhoun
El Paso
Cameron (Effective as of the first day of
the first applicable pay period beginning Area of Application. Survey area plus:
on or after April 17, 1996.)
Goliad New Mexico:
Hidalgo (Effective as of the first day of the Chaves
first applicable pay period beginning on Eddy
or after April 17, 1996.) Grant
Jim Wells Hidalgo
Kenedy (Effective as of the first day of the Lincoln (Only White Sands Missile Range
first applicable pay period beginning on portion)
or after April 17, 1996.) Luna
Kleberg Sierra
Live Oak Socorro (Only White Sands Missile Range
Refugio portion)
Starr (Effective as of the first day of the Texas:
first applicable pay period beginning on Culberson
or after April 17, 1996.) Hudspeth
Victoria
HOUSTON-GALVESTON-TEXAS CITY
Willacy (Effective as of the first day of the
first applicable pay period beginning on Survey Area
or after April 17, 1996.)
Texas:
DALLAS-FORT WORTH Brazoria
Fort Bend
Survey Area Galveston
Texas: Harris
Collin Liberty
Dallas Montgomery
Denton Waller
Ellis
Grayson
Hood Texas:
Johnson Angelina
Kaufman Austin
476
Chambers Little River
Colorado Miller
Grimes
Hardin Area of Application. Survey area plus:
Houston Texas:
Jackson Camp
Jasper Cass
Jefferson Franklin
Lavaca Marion
Madison Morris
Matagorda Red River
Nacogdoches Titus
Newton Arkansas:
Orange Columbia
Polk Hempstead
Sabine Howard
San Augustine Lafayette
San Jacinto Nevada
Shelby Sevier
Trinity
Tyler WACO
Walker
Washington Survey Area
Wharton Texas:
SAN ANTONIO Bell
Coryell
Survey Area McLennan
Texas: Area of Application. Survey area plus:
Bexar
Comal Texas:
Guadalupe Anderson
Bosque
Area of Application. Survey area plus: Brazos
Burleson
Texas: Falls
Atascosa Freestone
Bandera Hamilton
De Witt Hill
Dimmit Lampasas
Duval
Leon
Edwards
Limestone
Frio
Mills
Gillespie
Robertson
Gonzales
Jim Hogg WESTERN TEXAS
Karnes
Kendall Survey Area
Kerr
Texas:
Kinney
Callahan
La Salle
McMullen Ector
Maverick Howard
Medina Jones
Real Lubbock
Uvalde Midland
Val Verde Nolan
Webb Taylor
Wilson Tom Green
Zapata Area of Application. Survey area plus:
Zavala
Texas:
TEXARKANA Andrews
Armstrong
Survey Area
Bailey
Texas: Borden
Bowie Brewster
Arkansas: Briscoe
477
Brown Sutton
Carson Swisher
Castro Terrell
Childress Terry
Cochran Throckmorton
Coke Upton
Coleman Ward
Collingsworth Wheeler
Comanche Winkler
Concho Yoakum
Cottle Oklahoma:
Crane Beaver
Crockett Cimarron
Crosby Texas
Dallam New Mexico:
Dawson Lea
Deaf Smith
Dickens WICHITA FALLS, TEXASSOUTHWESTERN
Donley OKLAHOMA
Eastland
Fisher Survey Area
Floyd Texas:
Gaines Archer
Garza Clay
Glasscock Wichita
Gray Oklahoma:
Hale Comanche
Hall Cotton
Hansford Stephens
Hartley Tillman
Haskell
Hemphill Area of Application. Survey area plus:
Hockley
Texas:
Hutchinson
Baylor
Irion
Foard
Jeff Davis
Kent Hardeman
Kimble Knox
King Wilbarger
Lamb Young
Lipscomb Oklahoma:
Loving Greer
Lynn Harmon
McCulloch Jackson
Martin Jefferson
Menard Kiowa
Mitchell
UTAH
Moore
Motley Survey Area
Ochiltree
Oldham Utah:
Parmer Box Elder
Pecos Davis
Potter Salt Lake
Presidio Tooele
Randall Utah
Reagan Weber
Reeves
Roberts
Runnels Utah:
Schleicher Beaver
Scurry Cache
Shackelford Carbon
Sherman Daggett
Stephens Duchesne
Sterling Emery
Stonewall Garfield
478
Grand RICHMOND
Iron
Juab Survey Area
Millard Virginia (cities):
Morgan Colonial Heights
Piute Hopewell
Rich Petersburg
San Juan (Only includes the Canyonlands Richmond
National Park portion) Virginia (counties):
Sanpete Charles City
Sevier Chesterfield
Dinwiddie
Summit
Goochland
Uintah Hanover
Wasatch Henrico
Washington New Kent
Wayne Powhatan
Colorado: Prince George
Mesa
Moffat Area of Application. Survey area plus:
Idaho: Virginia (cities):
Franklin Charlottesville
Emporia
VIRGINIA Virginia (counties):
Albemarle
NORFOLK-PORTSMOUTH-NEWPORT NEWS- Amelia
HAMPTON Brunswick
Survey Area Buckingham
Caroline
Virginia (cities): Charlotte
Chesapeake Cumberland
Hampton Essex
Newport News Fluvanna
Norfolk Greene
Poquoson Greensville
Portsmouth King and Queen
King William
Suffolk
Lancaster
Virginia Beach
Louisa
Williamsburg Lunenberg
Virginia (counties): Mecklenburg
Gloucester Middlesex
James City Nelson
York Northumberland
North Carolina: Nottoway
Currituck Orange
Prince Edward
Area of Application. Survey area plus: Richmond
Virginia (cities): Sussex
Franklin Westmoreland
Virginia (counties): ROANOKE
Accomack
Isle of Wight Survey Area
Mathews Virginia (cities):
Northampton Radford
Southampton Roanoke
Surry Salem
North Carolina: Virginia (counties):
Camden Botetourt
Chowan Craig
Gates Montgomery
Pasquotank Roanoke
Perquimans
Maryland:
Assateague Island part of Worcester Virginia (cities):
479
Bedford Oregon:
Buena Vista Umatilla
Clifton Forge
Covington Area of Application. Survey area plus:
Danville Oregon:
Galax Baker
Lexington Grant
Lynchburg Harney
Martinsville Malheur
South Boston Morrow
Staunton Union
Waynesboro Wallowa
Virginia (counties): Wheeler
Alleghany Washington:
Amherst Kittitas (Only includes the Yakima Firing
Appomattox Range portion)
Augusta
Bath SPOKANE
Bedford
Bland Survey Area
Campbell Washington:
Carroll Spokane
Floyd
Franklin Area of Application. Survey area plus:
Giles
Halifax Washington:
Henry Adams
Highland Asotin
Patrick Chelan (Excluding North Cascades Park)
Pittsylvania Columbia
Pulaski Douglas
Rockbridge Ferry
Wythe Garfield
Grant
WASHINGTON Kittitas (Does not include the Yakima Fir-
ing Range portion)
SEATTLE-EVERETT-TACOMA Lincoln
Survey Area Okanogan
Pend Oreille
Washington: Stevens
King Whitman
Kitsap Idaho:
Pierce Benewah
Snohomish Bonner
Boundary
Area of Application. Survey area plus: Clearwater
Washington: Idaho
Chelan (North Cascades Park section only.) Kootenai
Clallam Latah
Grays Harbor Lewis
Island Nez Perce
Jefferson Shoshone
Lewis
Mason WEST VIRGINIA
San Juan
Survey Area
Skagit
Thurston West Virginia:
Whatcom Cabell
Harrison
SOUTHEASTERN WASHINGTON-EASTERN OREGON Kanawha
Marion
Survey Area
Monongalia
Washington: Putnam
Benton Wayne
Franklin Ohio:
Walla Walla Lawrence
Yakima Kentucky:
480
Boyd Virginia (counties):
Greenup Dickenson
Wise
WISCONSIN
West Virginia:
Barbour MADISON
Boone
Braxton Survey Area
Calhoun
Clay Wisconsin:
Doddridge Dane
Fayette Area of Application. Survey area plus:
Gilmer
Grant Wisconsin:
Greenbrier Adams
Jackson Columbia
Lewis Dodge
Lincoln Grant
Logan Green
McDowell Green Lake
Mason Iowa
Mercer Jefferson
Mingo Lafayette
Monroe Marquette
Nicholas Rock
Pendleton Sauk
Pleasants Waushara
Pocahontas
Preston MILWAUKEE
Raleigh
Survey Area
Randolph
Ritchie Wisconsin:
Roane Milwaukee
Summers Ozaukee
Taylor Washington
Tucker Waukesha
Tyler
Upshur Area of Application. Survey area plus:
Webster Wisconsin:
Wetzel Brown
Wirt Calumet
Wood Door
Wyoming
Fond du Lac
Ohio:
Kewaunee
Athens
Manitowoc
Gallia
Oconto
Jackson
Outagamie
Meigs
Racine
Monroe
Sheboygan
Morgan
Walworth
Noble
Winnebago
Pike
Scioto SOUTHWESTERN WISCONSIN
Vinton
Washington Survey Area
Kentucky:
Carter Wisconsin:
Elliott Chippewa
Floyd Eau Claire
Johnson La Crosse
Lawrence Monroe
Lewis Trempealeau
Magoffin
Martin
Pike Minnesota:
Virginia (city): Houston
Norton (Effective as of April 17, 1996.) Winona
481
Pt. 532, Subpt. B, App. D 5 CFR Ch. I (1116 Edition)
Wisconsin: Sheridan
Barron Sioux
Buffalo South Dakota:
Clark Butte
Crawford Custer
Dunn
Fall River
Florence
Harding
Forest
Jackson Jackson
Juneau Lawrence
Langlade Meade
Lincoln Perkins
Marathon Shannon
Marinette
[46 FR 21344, Apr. 10, 1981]
Menominee
Oneida EDITORIAL NOTE: For FEDERAL REGISTER ci-
Pepin tations affecting appendix C to subpart B of
Portage part 532, see the List of CFR Sections Af-
Price fected, which appears in the Finding Aids
Richland section of the printed volume and at
Rusk www.fdsys.gov.
Shawano
Taylor APPENDIX D TO SUBPART B OF PART
Vernon 532NONAPPROPRIATED FUND WAGE
Vilas
AND SURVEY AREAS
Waupaca
Wood This appendix lists the wage area defini-
WYOMING tions for NAF employees. With a few excep-
tions, each area is defined in terms of county
Survey Area units or independent cities. Each wage area
definition consists of:
Wyoming:
(1) Wage area title. Wage areas usually
Albany
carry the title of the county or counties sur-
Laramie
veyed.
Natrona
South Dakota: (2) Survey area definition. Lists each county
Pennington or independent city in the survey area.
(3) Area of application definition. Lists each
Area of application. Survey area plus: county or independent city which, in addi-
tion to the survey area, is in the area of ap-
Wyoming: plication.
Campbell
Carbon DEFINITIONS OF WAGE AREAS AND WAGE AREA
Converse SURVEY AREAS
Crook
Fremont ALABAMA
Goshen CALHOUN
Hot Springs
Survey Area
Johnson
Lincoln Alabama:
Niobrara Calhoun
Platte Area of Application. Survey area plus:
Sheridan
Sublette Alabama:
Sweetwater Jefferson
Uinta MADISON
Washakie
Weston Survey Area
Nebraska: Alabama:
Banner Madison
Box Butte
Cheyenne Area of Application. Survey area plus:
Dawes Tennessee:
Deuel Coffee
Garden
Kimball Davidson
Morrill Hamilton
Scotts Bluff Rutherford
482
Office of Personnel Management Pt. 532, Subpt. B, App. D
MONTGOMERY Jefferson
Survey Area Sebastian
Alabama: Washington
Montgomery CALIFORNIA
Area of Application. Survey area plus: KERN
Dale California:
Dallas Kern
Macon Area of Application. Survey area plus:
ALASKA California:
ANCHORAGE Fresno
Survey Area Kings
Alaska: (borough) LOS ANGELES
Anchorage
Survey Area
California:
Alaska: (boroughs and census areas) Los Angeles
Fairbanks North Star
Juneau Area of Application. Survey area.
Kenai Peninsula MONTEREY
Ketchikan Gateway Survey Area
Kodiak Island California:
Sitka Monterey
Southeast Fairbanks Area of Application. Survey area plus:
Valdez-Cordova
Yukon-Koyukuk California:
Santa Clara
ARIZONA
MARICOPA ORANGE
Arizona: California:
Maricopa Orange
Area of Application. Survey area plus: Area of Application. Survey area.
Arizona: RIVERSIDE
Coconino Survey Area
Yavapai California:
PIMA Riverside
Survey Area Area of Application. Survey area.
Arizona: SACRAMENTO
Pima Survey Area
Area of Application. Survey area plus: California:
Arizona: Sacramento
Cochise Area of Application. Survey area plus:
YUMA California:
Survey Area Yuba
Arizona: Oregon:
Yuma Jackson
Area of Application. Survey area plus: Klamath
California: SAN BERNARDINO
Imperial Survey Area
ARKANSAS California:
PULASKI San Bernardino
Arkansas: SAN DIEGO
Pulaski
Survey Area
Area of Application. Survey area plus: California:
Arkansas: San Diego
483
Area of Application. Survey area. Area of Application. Survey area plus:

SAN JOAQUIN Connecticut:
Survey Area New Haven
California: DELAWARE
San Joaquin KENT
Area of Application. Survey area. Survey Area
SANTA BARBARA Delaware:
Survey Area Kent
California: Area of Application. Survey area plus:
Santa Barbara Delaware:
Area of Application. Survey area plus: Sussex
California: Maryland:
San Luis Obispo Kent
SOLANO DISTRICT OF COLUMBIA
Survey Area WASHINGTON, DC
California: Survey Area
Solano District of Columbia:
Area of Application. Survey area plus: Washington, DC
California: Area of Application. Survey area.
Alameda FLORIDA
Contra Costa BAY
Marin Survey Area
Napa Florida:
San Francisco Bay
Sonoma
Area of Application. Survey area.
VENTURA
BREVARD
Survey Area
Survey Area
California:
Florida:
Ventura
Brevard
COLORADO
DUVAL
ARAPAHOE-DENVER
Colorado: Florida:
Arapahoe Duval
Denver Area of Application. Survey area plus:
Area of Application. Survey area plus: Florida:
Colorado: Alachua
Mesa Clay
Columbia
EL PASO
Georgia:
Survey Area
Camden
Colorado:
El Paso ESCAMBIA
Florida:
Colorado:
Escambia
Bent
Otero Area of Application. Survey area plus:
Pueblo Florida:
CONNECTICUT Santa Rosa
NEW LONDON HILLSBOROUGH

Connecticut: Florida:
New London Hillsborough
484
Area of Application. Survey area plus: Chattahoochee

Florida: DOUGHERTY
Pinellas Survey Area
Polk Georgia:
MIAMI-DADE Dougherty
Florida:
Miami-Dade HOUSTON
Florida: Georgia:
Broward Houston
Palm Beach Area of Application. Survey area plus:
MONROE Georgia:
Survey Area Laurens
Florida: LOWNDES
Monroe
Survey Area
Georgia:
OKALOOSA
Lowndes
Survey Area
Florida: Area of Application. Survey area.
Okaloosa RICHMOND
Florida: Georgia:
Walton Richmond
ORANGE Area of Application. Survey area plus:
Survey Area South Carolina:
Florida: Aiken
Orange
GUAM
GUAM
GEORGIA
CHATHAM Survey Area
Guam
Survey Area
Georgia: Area of Application. Survey area.
Chatham HAWAII
Area of Application. Survey area plus: HONOLULU
Georgia: Survey Area
Glynn Hawaii:
Liberty Honolulu
South Carolina: Area of Application. Survey area plus:
Beaufort
COBB Hawaii (counties):
Survey Area Hawaii
Georgia: Kauai
Cobb Maui
Area of Application. Survey area plus: Pacific Islands:
Georgia: Midway Islands
Bartow Johnston Atoll
De Kalb American Samoa
COLUMBUS IDAHO
Survey Area ADA-ELMORE
Georgia: Survey Area
Columbus
Idaho:
Area of Application. Survey area plus: Ada
Georgia: Elmore
485
Area of Application. Survey area. Area of Application. Survey area plus:

ILLINOIS Kansas:
LAKE Geary
Survey Area Saline
Illinois: KENTUCKY
Lake CHRISTIAN-MONTGOMERY
Illinois: Kentucky:
Cook Christian
Rock Island Tennessee:
Vermilion Montgomery
Iowa: Area of Application. Survey area.
Johnson HARDIN-JEFFERSON
Michigan: Survey Area
Dickinson Kentucky:
Marquette Hardin
Wisconsin: Jefferson
Dane Area of Application. Survey area plus:
Milwaukee Indiana:
ST. CLAIR Jefferson
Survey Area Martin
Illinois: Kentucky:
St. Clair Fayette
Area of Application. Survey area plus: Madison
Illinois: Warren
Madison LOUISIANA
Williamson BOSSIER-CADDO
Indiana: Survey Area
Vanderburgh Louisiana: (parishes)
Missouri: (city) Bossier
St. Louis Caddo
Missouri: (counties) Area of Application. Survey area plus:
Jefferson Texas:
Pulaski Bowie
KANSAS ORLEANS
LEAVENWORTH/JACKSON-JOHNSON Survey Area
Survey Area Louisiana: (parish)
Kansas: Orleans
Leavenworth Area of Application. Survey area plus:
Missouri: Louisiana: (parish)
Jackson Plaquemines
Johnson RAPIDES
Kansas: Louisiana: (parish)
Shawnee Rapides
Boone Louisiana: (parish)
Camden Vernon
Cass MAINE
SEDGWICK YORK

Kansas: Maine:
Sedgwick York
486
Maine: Connecticut:
Cumberland Hartford
Kennebec Massachusetts:
Penobscot Hampshire
New Hampshire: MIDDLESEX
Rockingham Survey Area
Vermont: Massachusetts:
Windsor Middlesex
MARYLAND Area of Application. Survey area plus:
ANNE ARUNDEL Massachusetts:
Survey Area Norfolk
Maryland: Plymouth
Anne Arundel Suffolk
Area of Application. Survey area plus: New Hampshire:
Maryland: (city) Hillsborough
Baltimore MICHIGAN
Maryland: (county) MACOMB
Baltimore Survey Area
CHARLES-ST. MARYS Michigan:
Macomb
Survey Area
Maryland: Area of Application. Survey area plus:
Charles Michigan:
St. Marys Alpena
Area of Application. Survey area plus: Calhoun
Crawford
Maryland: Grand Traverse
Calvert Huron
Virginia: Iosco
King George Leelanau
FREDERICK Ottawa
Survey Area Saginaw
Maryland: Washtenaw
Frederick Wayne
Area of Application. Survey area plus: Ohio:
Ottawa
West Virginia:
Berkeley MINNESOTA
HENNEPIN
HARFORD
Survey Area
Survey Area Minnesota:
Maryland: Hennepin
Harford
Minnesota:
Maryland: Morrison
Cecil Murray
MONTGOMERY-PRINCE GEORGES Ramsey
Survey Area Stearns
Maryland: St. Louis
Montgomery Wisconsin:
Prince Georges Juneau
Area of Application. Survey area. Monroe
MASSACHUSETTS Polk
HAMPDEN MISSISSIPPI
Survey Area HARRISON

Massachusetts: Survey Area
Hampden Mississippi:
487
Harrison NEVADA
Area of Application. Survey area plus: CHURCHILL-WASHOE
Mobile Nevada:
Mississippi: Churchill
Forest Washoe
Jackson Area of Application. Survey area plus:
LAUDERDALE California:
Survey Area Lassen
Mississippi: Mono
Lauderdale Nevada:
Area of Application. Survey area plus: Mineral
Mississippi: CLARK
Hinds Survey Area
Rankin Nevada:
Warren Clark
LOWNDES Area of Application. Survey area.
Survey Area NEW JERSEY
Mississippi: BURLINGTON
Lowndes Survey Area
Area of Application. Survey area plus: New Jersey:
Alabama: Burlington
Tuscaloosa Area of Application. Survey area plus:
MONTANA Delaware:
CASCADE New Castle
Survey Area New Jersey:
Montana: Atlantic
Cascade Cape May
Area of Application. Survey area plus: Monmouth
Ocean
Montana:
Salem
Fergus
Pennsylvania:
Flathead
Chester
Hill
Montgomery
Lewis and Clark
Philadelphia
Valley
Yellowstone MORRIS
NEBRASKA Survey Area
DOUGLAS-SARPY New Jersey:
Survey Area Morris
Nebraska: Area of Application. Survey area plus:
Douglas New Jersey:
Sarpy Somerset
Area of Application. Survey area plus: Pennsylvania:
Iowa: Luzerne
Marion Monroe
Polk NEW MEXICO
Woodbury BERNALILLO
Nebraska: Survey Area
Hall New Mexico:
Lancaster Bernalillo
Saunders

South Dakota: New Mexico:
Minnehaha McKinley
488
CURRY ORANGE
New Mexico: New York:
Curry Orange
Texas: New York:
Lubbock Dutchess
Potter Westchester
DONA ANA NORTH CAROLINA
CRAVEN
Survey Area
New Mexico: Survey Area
Dona Ana North Carolina:
Craven
New Mexico:
Chaves North Carolina:
Otero Carteret
Dare
NEW YORK
JEFFERSON CUMBERLAND
North Carolina:
New York:
Cumberland
Jefferson
North Carolina:
New York:
Durham
Albany
Rowan
Oneida
Onondaga ONSLOW
Ontario Survey Area
Schenectady North Carolina:
Steuben Onslow
KINGS-QUEENS Area of Application. Survey area plus:
Survey Area North Carolina:
New York: New Hanover
Kings WAYNE
Queens Survey Area
Area of Application. Survey area plus: North Carolina:
New Jersey: Wayne
Essex Area of Application. Survey area plus:
Hudson North Carolina:
New York: Halifax
Bronx NORTH DAKOTA
Nassau GRAND FORKS
New York Survey Area
Richmond North Dakota:
Suffolk Grand Forks
NIAGARA Area of Application. Survey area plus:
Survey Area North Dakota:
New York: Cass
Niagara Cavalier
Area of Application. Survey area plus: Pembina
New York: Steele
Erie WARD
Genesee Survey Area

Pennsylvania: North Dakota:
Erie Ward
489
Area of Application. Survey area plus: West Virginia:

North Dakota: Harrison
Divide CUMBERLAND
OHIO Survey Area
GREENE-MONTGOMERY Pennsylvania:
Survey Area Cumberland
Ohio: Area of Application. Survey area plus:
Greene Pennsylvania:
Montgomery Blair
Area of Application. Survey area plus: Franklin
Indiana: YORK
Allen Survey Area
Grant Pennsylvania:
Marion York
Miami Area of Application. Survey area plus:
Ohio: Pennsylvania:
Clinton Lebanon
Franklin
PUERTO RICO
Hamilton
GUAYNABO-SAN JUAN
Licking
Ross Survey Area
Puerto Rico: (municipalities)
West Virginia: Guaynabo
Raleigh San Juan
Wayne
OKLAHOMA
COMANCHE Puerto Rico: (municipalities)
Aguadilla
Survey Area Bayamon
Oklahoma: Ceiba
Comanche Isabela
Area of Application. Survey area plus: Ponce
Oklahoma: Salinas
Cotton Toa Baja
Jackson Vieques
OKLAHOMA U.S. Virgin Islands:
Survey Area St. Croix
Oklahoma: St. Thomas
Oklahoma RHODE ISLAND
Area of Application. Survey area plus: NEWPORT
Oklahoma: Survey Area
Garfield Rhode Island:
Muskogee Newport
Pittsburg Area of Application. Survey area plus:
Tulsa Massachusetts:
PENNSYLVANIA Barnstable
ALLEGHENY Nantucket
Survey Area Rhode Island:
Pennsylvania: Providence
Allegheny Washington
Area of Application. Survey area plus: SOUTH CAROLINA
Ohio: CHARLESTON
Cuyahoga Survey Area
Trumball South Carolina:
Charleston
Pennsylvania:
Butler Area of Application. Survey area plus:
Westmoreland South Carolina:
490
Berkeley Travis
Horry Val Verde
RICHLAND DALLAS
South Carolina: Texas:
Richland Dallas
North Carolina: Texas:
Buncombe Angelina
South Carolina: Fannin
Sumpter Galveston
Tennessee: Harris
Washington EL PASO
SOUTH DAKOTA Survey Area
PENNINGTON Texas:
Survey Area El Paso
South Dakota: Area of Application. Survey area.
Pennington
MCLENNAN
Survey Area
Montana: Texas:
Custer McLennan
South Dakota:
Fall River
Meade NUECES
Wyoming: Survey Area
Sheridan Texas:
Nueces
TENNESSEE
SHELBY Area of Application. Survey area plus:
Survey Area Texas:
Tennessee: Bee
Shelby Calhoun
Kleberg
San Patricio
Arkansas: Webb
Mississippi
TARRANT
Missouri:
Survey Area
Butler
Texas:
TEXAS Tarrant
BELL
Survey Area
Texas: Texas:
Bell Cooke
Palo Pinto
TAYLOR
Texas:
Burnet Survey Area
Coryell Texas:
Falls Taylor
BEXAR Area of Application. Survey area.
Survey Area TOM GREEN
Texas: Survey Area
Bexar Texas:
Area of Application. Survey area plus: Tom Green
Texas:
Comal Texas:
Kerr Howard
491
WICHITA NORFOLK-PORTSMOUTH-VIRGINIA BEACH

Texas: Virginia: (cities)
Wichita Norfolk
Area of Application. Survey area. Portsmouth
Virginia Beach
UTAH
DAVIS-SALT LAKE-WEBER Area of Application. Survey area plus:
Survey Area North Carolina:
Utah: Pasquotank
Davis Virginia: (cities)
Salt Lake Chesapeake
Weber Suffolk
Area of Application. Survey area plus: Virginia: (counties)
Utah: Accomack
Northampton
Box Elder
Tooele PRINCE WILLIAM
Uintah Survey Area
VIRGINIA Virginia:
ALEXANDRIA-ARLINGTON-FAIRFAX Prince William
Survey Area Area of Application. Survey area plus:
Virginia: (city) Virginia:
Alexandria Fauquier
Virginia: (counties) WASHINGTON
Arlington KITSAP
Fairfax Survey Area
Area of Application. Survey area. Washington:
Kitsap
CHESTERFIELD-RICHMOND
Survey Area
Virginia: (city) Washington:
Richmond Clallam
Jefferson
Virginia: (county)
Chesterfield PIERCE
Washington:
Virginia: (cities) Pierce
Bedford
Charlottesville
Salem Oregon:
Clatsop
Virginia: (counties)
Coos
Caroline
Douglas
Nottoway Multnomah
Prince George Tillamook
West Virginia: Washington:
Pendleton Clark
HAMPTON-NEWPORT NEWS Grays Harbor
Survey Area SNOHOMISH
Virginia: (cities) Survey Area
Hampton Washington:
Newport News Snohomish
Virginia: (city) Washington:
Williamsburg Island
Virginia: (county) King
York Yakima
492
SPOKANE production or repair of aircraft, ammu-

nition, artillery and combat vehicles,
Survey Area
communication equipment, electronic
Washington:
equipment, guided missiles, heavy duty
Spokane
equipment, shipbuilding, sighting and
Area of Application. Survey area plus: fire control equipment, or small arms.
Washington: (2) Under the nonappropriated fund
Adams wage system a specialized industry
Walla Walla includes only nonappropriated fund op-
WYOMING erated eating and drinking places. Ad-
LARAMIE ditional industries may be considered
Survey Area as specialized industries upon approval
Wyoming: of the Office of Personnel Management.
Laramie
532.305 Dominant industry.
(a)(1) A specialized industry is a
[75 FR 49351, Aug. 13, 2010, as amended at 76 dominant industry if the number of
FR 9640, Feb. 22, 2011; 76 FR 31786, June 2, wage employees in the wage area who
2011; 76 FR 53046, Aug. 25, 2011; 77 FR 28472, are subject to the wage schedule for
May 15, 2012; 78 FR 29612, May 21, 2013; 78 FR which the survey is made and employed
60181, 60182, Oct. 1, 2013] in occupations which comprise the
principal types of appropriated or non-
Subpart CDetermining Rates for appropriated fund positions in the spe-
Principal Types of Positions cialized industry comprise:
(i) For appropriated fund activities,
532.301 Definitions. (A) At least 25 percent of the total
For purposes of this subpart: wage employment or
Nearest similar wage area means the (B) 1,000 or more employees in a wage
nearest wage area which is most simi- area having more than 4,000 wage em-
lar to the local wage area in terms of ployees; and
private employment, population, rel- (ii) For nonappropriated fund activi-
ative numbers of private employers in ties
major industry categories, and kinds (A) At least 25 percent of the total
and sizes of industry establishments wage employment or
and in which adequate private estab- (B) 100 or more wage employees in a
lishments exist in the survey area wage area having 400 or more wage em-
whose activities are similar to those in ployees.
the dominant industry. (2) If two or more specialized indus-
Principal types of appropriated or non- tries in a wage area qualify as domi-
appropriated fund positions means those nant industries, the two specialized in-
groups of occupations which require dustries having the largest number of
work of a specialized nature and which wage employees shall be the dominant
are peculiar to a specific Government industries for purposes of applying the
industry which is the dominant indus- requirements of this subpart.
try among the total wage employment
in the wage area. 532.307 Determinating whether a
Specialized private industry means pri- dominant industry exists in a wage
area.
vate industry establishments in those
industry groups, comparable to the (a) The chairperson of the local wage
specialized Government industries list- survey committee shall, before a full-
ed in 532.303 of this section, which scale wage survey is scheduled to
must be included in a wage survey in begin, notify all appropriated or non-
order to obtain data comparable to a appropriated fund activities having
dominant industry. employees subject to the wage sched-
ules for which the survey is conducted
532.303 Specialized industry. so that organizations and individuals
(a)(1) Under the appropriated fund may submit written recommendations

wage system, a specialized industry and supporting evidence to the local
is a Federal activity engaged in the wage survey committee concerning
493
532.309 5 CFR Ch. I (1116 Edition)
principal types of appropriated or non- 532.309 Determining adequacy of

appropriated fund positions in the area. specialized private industry.
Each appropriated or nonappropriated (a) Specialized private industry com-
fund activity shall publicize the oppor- parable to an appropriated fund domi-
tunity to make such recommendations. nant industry is adequate when:
(b)(1) Before conducting a full-scale (1) The survey area is one of the 25
wage survey an occupational inventory largest Standard Metropolitan Statis-
of employees subject to the wage tical Areas, or the total number of em-
schedules for which the survey is con- ployees of private industry establish-
ducted shall be obtained from each ap- ments in the specialized private indus-
propriated or nonappropriated fund ac- try located in the survey area is at
tivity in the area having such employ- least equal to the total number of ap-
ees. propriated fund wage employees in oc-
cupations which comprise the principal
(2) After reviewing the occupational
types of appropriated positions in the
inventory and considering the rec- dominant industry who are subject to
ommendations received pursuant to the wage schedules for which the sur-
paragraph (a) of this section, the local vey is made; or
wage survey committee shall formu- (2) For any dominant industry except
late its recommendations and prepare a ammunition, the job matches ob-
written report concerning the exist- tained from the specialized private in-
ence of specialized industries within dustry include one regular survey job
the wage area. in the WG01 through 04 range, one reg-
(3) The report of the recommenda- ular survey job in the WG05 through 08
tions, the occupational inventory, and range, one regular survey job in the
the recommendations and supporting WG09 and above range, and one special
evidence received pursuant to para- survey job in the WG09 and above
graph (a) of this section shall be for- range all providing at least 20
warded to the lead agency. unweighted samples each; and three
(c) The lead agency shall refer the oc- other regular or special survey jobs,
cupational inventory and the reports each providing at least 10 unweighted
received pursuant to paragraph (b) of samples.
(3) For the dominant industry am-
this section to the agency wage com-
munition, the job matches obtained
mittee for its consideration and rec-
from the specialized survey industries
ommendation if: include one regular survey job in the
(1) The lead agency proposes not to WG01 through 04 range, one special
accept the recommendation of the survey job in the WG05 through 08
local wage survey committee con- range, and one regular survey job in
cerning the specifications of the local the WG09 through 15 range, all pro-
wage survey; or viding at least 20 unweighted samples
(2) The local wage survey commit- each; and three other regular or special
tees report is accompanied by a minor- survey jobs, each providing at least 10
ity report. unweighted samples.
(d) The lead agency shall determine, (b) Specialized private industry com-
in writing, after taking into consider- parable to a nonappropriated fund dom-
ation the reports and recommendations inant industry is adequate when:
received under paragraphs (b) and (c) of (1) The total number of employees of
this section, and prior to ordering a private industry establishments simi-
full-scale wage survey to begin, wheth- lar to the dominant industry located in
er the principal types of appropriated the survey are at least equal to the
or nonappropriated fund positions in a number of nonappropriated fund wage
local wage area comprise a dominant employees in positions which comprise
the principal types of nonappropriated
industry. The determination shall re-
fund positions in the dominant indus-
main in effect until the next full-scale
try who are subject to the wage sched-
wage survey in the area.
ules for which the survey is made; and

[46 FR 21344, Apr. 10, 1981, as amended at 55 (2) The job matches obtained from all
FR 46179, Nov. 1, 1990] industries surveyed for regular survey
494
jobs related to the dominant industry 532.309 of this subpart, the lead agency
include one regular survey job in the shall obtain data related to the domi-
NA01 through 04 range providing at nant industry from the survey area of
least 10 samples; and one regular sur- the wage area which is determined to
vey job in the NA05 through 15 range be the nearest similar area which will
and one other regular survey job, each provide adequate data under the cri-
providing at least five samples. teria in 532.309 of this subpart.
532.311 Survey of specialized private FR 46179, Nov. 1, 1990]
industry related to a dominant in-
dustry. 532.313 Private sector industries.
If it is determined that there are one (a) For appropriated fund surveys,
or more dominant industries within a the lead agency must use the private
wage area, the lead agency shall insure sector industries in the following
that the survey includes the industries North American Industry Classifica-
and survey jobs related to the domi- tion System (NAICS) codes when it
nant industries. When the related in- makes its wage schedule determina-
dustry within the local wage survey tions for each specialized Federal in-
area fails to meet the criteria in dustry:
Aircraft Specialized Industry
332912 ............................ Fluid power valve and hose fitting manufacturing.

336411 ............................ Aircraft manufacturing.
336412 ............................ Aircraft engine and engine parts manufacturing.
336413 ............................ Other aircraft part and auxiliary equipment manufacturing.
336415 ............................ Guided missile and space vehicle propulsion unit and propulsion unit parts manufacturing.
336419 ............................ Other guided missile and space vehicle parts and auxiliary equipment manufacturing.
4811 ................................ Scheduled air transportation.
4812 ................................ Nonscheduled air transportation.
4879 ................................ Scenic and sightseeing transportation, other.
4881 ................................ Support activities for air transportation.
4921 ................................ Couriers.
541712 ............................ Research and development in the physical, engineering, and life sciences (except biotechnology).
56172 .............................. Janitorial services.
62191 .............................. Ambulance services.
81142 .............................. Reupholstery and furniture repair.
Ammunition Specialized Industry
32592 .............................. Explosives manufacturing.

332992 ............................ Small arms ammunition manufacturing.
332993 ............................ Ammunition (except small arms) manufacturing.
Artillery and Combat Vehicles Specialized Industry
2211 ................................ Electric power generation, transmission, and distribution.

2212 ................................ Natural gas distribution.
32732 .............................. Ready-mix concrete manufacturing.
332216 ............................ Saw blade and hand tool manufacturing.
332323 ............................ Ornamental and architectural metal work manufacturing.
332439 ............................ Other metal container manufacturing.
332994 ............................ Small arms, ordnance, and ordnance accessories manufacturing.
332999 ............................ All other miscellaneous fabricated metal product manufacturing.
33311 .............................. Agricultural implement manufacturing.
33312 .............................. Construction machinery manufacturing.
333611 ............................ Turbine and turbine generator set units manufacturing.
333618 ............................ Other engine equipment manufacturing.
333922 ............................ Conveyor and conveying equipment manufacturing.
333923 ............................ Overhead traveling crane, hoist, and monorail system manufacturing.
333924 ............................ Industrial truck, tractor, trailer, and stacker machinery manufacturing.
3361 ................................ Motor vehicle manufacturing.
336211 ............................ Motor vehicle body manufacturing.
336212 ............................ Truck trailer manufacturing.
33631 .............................. Motor vehicle gasoline engine and engine parts manufacturing.
33632 .............................. Motor vehicle electrical and electronic equipment manufacturing.
33633 .............................. Motor vehicle steering and suspension components (except spring) manufacturing.
33634 .............................. Motor vehicle brake system manufacturing.
33635 .............................. Motor vehicle transmission and power train parts manufacturing.
495
532.313 5 CFR Ch. I (1116 Edition)
33639 .............................. Other motor vehicle parts manufacturing.

33651 .............................. Railroad rolling stock manufacturing.
336992 ............................ Military armored vehicle, tank, and tank component manufacturing.
4231 ................................ Motor vehicle and motor vehicle parts and supplies merchant wholesalers.
42381 .............................. Construction and mining (except oil well) machinery and equipment merchant wholesalers.
42382 .............................. Farm and garden machinery and equipment merchant wholesalers.
4413 ................................ Automotive parts, accessories, and tire stores.
44421 .............................. Outdoor power equipment stores.
4862 ................................ Pipeline transportation of natural gas.
5171 ................................ Wired telecommunications carriers.
5172 ................................ Wireless telecommunications carriers (except satellite).
517911 ............................ Telecommunications resellers.
5621 ................................ Waste collection.
Communications Specialized Industry
334511 ............................ Search, detection, navigation, guidance, aeronautical and nautical system and instrument manufac-
turing.
334514 ............................ Totalizing fluid meter and counting device manufacturing.
335311 ............................ Power, distribution, and specialty transformer manufacturing.
48531 .............................. Taxi service.
5151 ................................ Radio and television broadcasting.
5152 ................................ Cable and other subscription programming.
5171 ................................ Wired telecommunications carriers.
5172 ................................ Wireless telecommunications carriers (except satellite).
5174 ................................ Satellite telecommunications.
517911 ............................ Telecommunications resellers.
Electronics Specialized Industry

33431 .............................. Audio and video equipment manufacturing.
334412 ............................ Bare printed circuit board manufacturing.
334413 ............................ Semiconductor and related device manufacturing.
334416 ............................ Electronic coil, transformer, and other inductor manufacturing.
334417 ............................ Electronic connector manufacturing.
334419 ............................ Other electronic component manufacturing.
turing.
334613 ............................ Magnetic and optical recording media manufacturing.
42342 .............................. Office equipment merchant wholesalers.
42343 .............................. Computer and computer peripheral equipment and software merchant wholesalers.
Guided Missiles Specialized Industry
332912 ............................ Fluid power valve and hose fitting manufacturing.

turing.
3364 ................................ Aerospace product and parts manufacturing.
54131 .............................. Architectural services.
54133 .............................. Engineering services.
54136 .............................. Geophysical surveying and mapping services.
54137 .............................. Surveying and mapping (except geophysical) services.
541712 ............................ Research and development in the physical, engineering, and life sciences (except biotechnology).
Heavy Duty Equipment Specialized Industry
332439 ............................ Other metal container manufacturing.
496
332999 ............................ All other miscellaneous fabricated metal product manufacturing.

33312 .............................. Construction machinery manufacturing.
333923 ............................ Overhead traveling crane, hoist, and monorail system manufacturing.
333924 ............................ Industrial truck, tractor, trailer, and stacker machinery manufacturing.
33651 .............................. Railroad rolling stock manufacturing.
42381 .............................. Construction and mining (except oil well) machinery and equipment merchant wholesalers.
Shipbuilding Specialized Industry
336611 ............................ Ship building and repairing.

48839 .............................. Other support activities for water transportation.
Sighting and Fire Control Equipment Specialized Industry
333314 ............................ Optical instrument and lens manufacturing.

turing.
Small Arms Specialized Industry
332994 ............................ Small arms manufacturing.
(b) For wage surveys involving the Specialized in- Specialized survey jobs Grade
specialized Federal industry Artillery dustry
and Combat Vehicles in paragraph (a) Aircraft Mechanic includes.
of this section, the lead agency must Aircraft Electrician ...................... WG10
limit special job coverage for indus- Aircraft Welder ........................... WG10
Aircraft Sheetmetal Worker ....... WG10
tries in NAICS codes 2211, 2212, 32732, Hydromechanical Fuel Control WG10
484, 4862, 5621, 492, 5171, 5172, and 5173 to Repairer.
automotive mechanic, diesel engine Aircraft Engine Mechanic ........... WG10
mechanic, and heavy mobile equipment Aircraft Jet Engine Mechanic ..... WG10
Flight Line Mechanic .................. WG10
mechanic. Aircraft Attendant (ground serv- WG7
(c) For nonappropriated fund wage ices).
surveys, the lead agency must use Ammunition .... Munitions Handler ...................... WG4
NAICS codes 71111, 7221, 7222, 72231, Munitions Operator .................... WG4
Munitions Operator .................... WG6
72232, and 7224 (eating and drinking Munitions Operator .................... WG8
places) when it determines a wage Munitions Operator .................... WG9
schedule for a specialized industry. Explosives Operator .................. WG9
Artillery and Automotive Mechanic (limited to WG10
[71 FR 35375, June 20, 2006, as amended at 73 combat ve- data obtained in special in-
FR 45853, Aug. 7, 2008; 78 FR 58154, Sept. 23, hicles. dustries).
2013; 79 FR 21121, Apr. 15, 2014] Heavy Mobile Equipment Me- WG10
chanic.
532.315 Additional survey jobs. Artillery Repairer ........................ WG9
Combat Vehicle Mechanic ......... WG8
(a) For appropriated fund surveys, Combat Vehicle Mechanic (En- WG10
when the lead agency adds to the in- gine).
Combat Vehicle Mechanic ......... WG11
dustries to be surveyed, it shall add to Diesel Engine Mechanic (limited WG10
the required survey jobs the specialized to data obtained in special in-
survey jobs listed below opposite the dustries.
industry added: Communica- Telephone Installer-Repairer ..... WG9
tions.
Specialized in- Central Office Repairer .............. WG11
Specialized survey jobs Grade Electronic Test Equipment Re- WG11
dustry
pairer.
Aircraft ........... Electronics Mechanic ................. WG11 Television Station Mechanic ...... WG11
Aircraft Structures Assembler B WG7 Electronics ..... Electronics Mechanic ................. WG11
Aircraft Structures Assembler A WG9 Industrial Electronic Controls WG10
Aircraft Mechanic ....................... WG10 Repairer.
497
532.317 5 CFR Ch. I (1116 Edition)
Specialized in- Specialized survey jobs Grade

be included, the jobs required at lim-
dustry ited grade ranges shall be selected be-
Electronic Test Equipment Re- WG11 fore jobs in the unlimited grade range.
pairer. When there is a tie in the selection pro-
Electronic Computer Mechanic .. WG11 cedure, the highest graded job shall be
Television Station Mechanic ...... WG11
Guided mis- Electronic Computer Mechanic .. WG11 selected first.
siles. (4) If there are two dominant indus-
Guided Missile Mechanical Re- WG11 tries for which data are obtained from
pairer.
Heavy duty Heavy Mobile Equipment Me- WG10 nearest similar areas, the procedure de-
equipment. chanic. scribed in paragraph (a)(2) of this sec-
Shipbuilding ... Electronics Mechanic ................. WG11 tion shall be applied independently for
Electrician, Ship ......................... WG10
Pipefitter, Ship ........................... WG10 each of the specialized industries.
Shipfitter ..................................... WG10 (b)(1) The wage rates established for
Shipwright .................................. WG10 a grade by using data from the nearest
Machinist (Marine) ..................... WG10
Sighting and Electronic Computer Mechanic .. WG11 similar area may not exceed the wage
fire control. rates for the same grade in the nearest
Fire Control Instrument Repair- WG11 similar area.
man.
Electronic Fire Control Systems WG11 (2) If data are obtained from two
Repairer. nearest similar areas for two dominant
Electronic Fire Control Systems WG12 industries, the wage rates established
Repairer.
Electronic Fire Control Systems WG13
for a grade by using these data may
Repairer. not exceed the higher of the wage rates
Small arms .... Small Arms Repairer ................. WG8 for the same grade in the two nearest
similar areas.
(b) For nonappropriated fund sur- (c) The wage data obtained from the
veys, a lead agency must obtain prior nearest similar area or areas may not
approval of OPM to add a job not listed be used to reduce the wage rates for
in 532.223 of this subpart. any grade in the local area below the
[55 FR 46180, Nov. 1, 1990] rates that would be established for that
grade without the use of the data from
532.317 Use of data from the nearest the nearest similar area or areas.
similar area.
(a)(1) For prevailing rate employees FR 38197, Sept. 15, 1989. Redesignated and
other than those in the Department of amended at 55 FR 46179, Nov. 1, 1990]
Defense, the lead agency shall, in es-
tablishing the regular schedule under
the provisions of this subpart, analyze
Subpart DPay Administration
and use the acceptable data from the 532.401 Definitions.
nearest similar wage area together
with the data obtained from inside the In this subpart:
local wage survey area. The regular Change to lower grade means a change
schedule for Department of Defense in the position of an employee who,
prevailing rate employees shall be while continuously employed
based on local wage data only. (1) Moves from a position in one
(2) The total number of job matches grade of a prevailing rate schedule es-
obtained from the nearest similar wage tablished under this part to a position
area shall be equal to the number rein a lower grade of the same type pre-
quired for adequacy in 532.309(a) (2) vailing rate schedule, whether in the
and (3) of this subpart for appropriated same or different wage area;
fund surveys and 532.309(b)(2) of this (2) Moves from a position under a
subpart for nonappropriated fund sur- prevailing rate schedule established
veys. under this part to a position under a
(3) Data shall be selected for inclu- different prevailing rate schedule (e.g.,
sion on the basis of the most populous WL to WG) with a lower representative
survey jobs as determined by the rate; or
weighted job matches found in the (3) Moves from a position not under a
dominant industry in the selected ref- prevailing rate schedule to a position

erence area. In identifying survey jobs with a lower representative rate under
for which reference area samples will a prevailing rate schedule.
498
Equivalent increase means an increase prevailing rate determination. For ex-

or increases in an employees rate of ample:
basic pay equal to or greater than the (1) The established rate on a single
difference between the rate of pay for rate schedule;
the grade and step occupied by the em- (2) The second rate on a five-rate reg-
ployee and the rate of pay for the next ular wage schedule;
higher step of that grade, except in the (3) The fourth rate on the General
situations specified in 532.417 of this Schedule; or
subpart. In the case of a promotion, the (4) The fourth rate of a class under
grade and step occupied means the the Foreign Service Officer and For-
grade and step to which promoted. eign Service Staff schedule.
Existing scheduled rate of pay means Retained rate means the rate of pay
the scheduled rate of pay received im- an employee is receiving which is high-
mediately before the effective date of a er than the maximum scheduled rate of
transfer, reassignment, promotion, pay of the Federal Wage System grade
change to a lower grade, within-grade or pay level to which the employee is
increase, or revision of a wage sched- assigned.
ule. Scheduled rate of pay means the rate
Highest previous rate means the high- of pay fixed by law or administrative
est scheduled rate of pay previously action, including a retained rate of
paid to a person while employed in a pay, for the job held by an employee
job in any branch of the Federal Gov- before any deductions and exclusive of
ernment, a mixed-ownership corpora- additional pay of any kind.
tion, or the government of the District
of Columbia. It is based on a regular
FR 46180, Nov. 1, 1990; 60 FR 62701, Dec. 7,
tour of duty under an appointment not 1995]
limited to 90 days or less, or for a con-
tinuous period of no less than 90 days 532.403 New appointments.
under one or more appointments with-
(a) Except as provided in paragraphs
out a break in service.
(b) and (c) of this section, a new ap-
Promotion means a change in the po-
pointment to a position shall be made
sition of an employee who, while con-
at the minimum rate of the appro-
tinuously employed
priate grade.
(1) Moves from a position in one
(b) An agency may make a new ap-
grade of a prevailing rate schedule es-
pointment at a rate above the min-
tablished under this part to a position
imum rate of the appropriate grade in
in a higher grade of the same type pre-
recognition of an appointees special
vailing rate schedule, whether in the
qualifications.
same or different wage area;
(c) An agency shall make a new ap-
(2) Moves from a position under a
pointment at a step-rate above the
prevailing rate schedule established
minimum rate of a grade if the lead
under this part to a position under a
agency for the wage area has des-
different prevailing rate schedule (e.g.,
ignated, in accordance with 532.249, a
WG to WL) with a higher representa-
step-rate above the first step-rate of a
tive rate; or
grade as the minimum step-rate at
(3) Moves from a position not under a
which a position may be filled.
prevailing rate schedule to a position
with a higher representative rate under [46 FR 21344, Apr. 10, 1981, as amended at 58
a prevailing rate schedule. FR 32274, June 9, 1993]
Rate of basic pay means the scheduled
rate of pay plus any night or environ- 532.405 Use of highest previous rate.
mental differential. (a)(1) Subject to the provisions of
Reassignment means a change of an 532.407 of this subpart and part 536 of
employee, while serving continuously this chapter, when an employee is re-
in the same agency, from one job to an- employed, reassigned, transferred, pro-
other without promotion or change to moted, or changed to a lower grade, the
a lower grade. agency may fix the pay at any rate of

Representative rate means the going the new grade which does not exceed
rate, i.e., the rate or step keyed to the the employees highest previous rate.
499
532.407 5 CFR Ch. I (1116 Edition)
(2) However, if the employees high- titlement as if there were two pay ac-
est previous rate falls between two tionsa promotion and a reassign-
step-rates of the new grade, the agency mentand shall process them in the
may fix the pay at the higher of the order which gives the employee the
two. maximum benefit.
(b)(1) When an employees type of ap-
pointment is changed in the same job, 532.409 Grading or regrading of posi-
an agency may continue to pay the ex- tions.
isting scheduled rate or may pay any Except as provided in 532.703(b)(10),
higher rate of the grade which does not a change in an employees rate of basic
exceed the employees highest previous pay as a result of the grading or re-
rate. grading of the employees position
(2) However, if the highest previous shall be effective on the date the grad-
rate falls between two step rates of the ing or regrading action is finally ap-
grade, the agency may pay the higher proved by the agency or on a subse-
rate. quent specifically stated date.
(c)(1) The highest previous rate, if
earned in a wage job, is the current 532.411 Details.
rate of the grade and step-rate of the An appropriated fund employee de-
former job on the same type of wage tailed to a position other than the posi-
schedule in the wage area in which the tion to which appointed shall be paid
employee is being employed, or the ac- at the rate of the position to which ap-
tual earned rate, whichever is higher. pointed.
(2) If earned on a General Schedule or
another pay system other than the 532.413 Simultaneous action.
Federal Wage System, it is the current (a) If an employee becomes entitled
rate for the same grade and rate of to more than one pay change at the
that schedule. same time, the employing agency shall
(d) The highest previous rate may be process the pay changes in the order
based upon a rate of pay received dur- which will provide the maximum ben-
ing a temporary promotion, so long as efit, except as required by paragraph
the temporary promotion is for a pe- (b) of this section.
riod of not less than 1 year. This limi- (b) If an employee becomes entitled
tation does not apply upon permanent to an increase in pay and subject to a
placement in a position at the same or personnel or appointment change at
higher grade. the same time, the increased rate of
[46 FR 21344, Apr. 10, 1981, as amended at 60 pay is deemed to be the employees ex-
FR 62701, Dec. 7, 1995] isting scheduled rate of pay when the
personnel or appointment change is
532.407 Promotion. processed.
(a) An employee who is promoted is
entitled to be paid at the lowest sched- 532.415 Application of new or revised
uled rate of the grade to which pro- wage schedules.
moted which exceeds the employees (a) The head of each installation or
existing scheduled rate of pay by at activity in a wage area shall place new
least four percent of the representative or revised wage schedules into effect at
rate of the grade from which promoted. the beginning of the first full shift on
(b) If there is no rate in the grade to the date specified on the schedule by
which an employee is promoted which the lead agency.
meets the requirement of paragraph (a) (b) No agency may retroactively
of this section the employee shall be change any personnel or pay actions
entitled to the higher of: (1) the exist- taken between the effective date of a
ing scheduled rate of pay in accordance new or revised wage schedule and the
with part 536 of this chapter; or (2) the date it is actually put into effect if the
maximum scheduled rate of the grade personnel or pay actions taken during
to which promoted. this period of time are more advan-
(c) If the promotion is to a position tageous to an employee than the same

in a different wage area, the agency personnel or pay action would have
shall determine the employees pay en- been had the new or revised wage
500
schedule been placed into effect on the or is separated from Federal service
date specified by the lead agency. and is entitled to continuation of pay
(c) In applying a new or revised wage or compensation under subchapter I of
schedule, the scheduled rate of pay of chapter 81 of title 5, United States
an employee paid at one of the steps of Code. This does not apply to prevailing
the employees grade on an old wage rate employees within a Department of
schedule shall be adjusted upward to Defense or Coast Guard non-
the newly adjusted rate for the same appropriated fund instrumentality;
numerical step of the grade whenever (4) A period of military service when:
there is an increase in rates. Except (i) An employee is on leave of ab-
when there is a decrease in wage rates sence to perform such service and re-
because of a statutory reduction in turns to pay status through the exer-
scheduled rates, the employee is enti- cise of a restoration right provided by
tled to pay retention as provided in 5 law, Executive order, or regulation; or
CFR 536.301(a)(8). (ii) A former employee is reemployed
[46 FR 21344, Apr. 10, 1981, as amended at 60 with the Federal Service not later than
FR 62701, Dec. 7, 1995; 70 FR 31305, May 31, 52 calendar weeks after separation
2005] from such service or hospitalization
continuing thereafter for a period of
532.417 Within-grade increases.
not more than one year. Military serv-
(a) An employee paid under a regular ice means honorable active service in
Federal Wage System schedule with a the Armed Forces, in the Regular or
work performance rating of satisfac- Reserve Corps of the Public Health
tory or better shall advance automati- Service after June 30, 1960, or as a com-
cally to the next higher step within the missioned officer of the Environmental
grade in accordance with section Science Services Administration after
5343(e)(2) of title 5, United States Code. June 30, 1961, but does not include serv-
(b) Waiting periods for within-grade ice in the National Guard, except when
increases shall begin: ordered to active duty in the service of
(1) On the first day of a new appoint- the United States.
ment as an employee subject to this (5) The time between an employees
part; separation from an earlier position and
(2) On the first day of a period of the date of the employees return to a
service after a break in service or time civilian position through the exercise
in a nonppay status in excess of 52 of a reemployment right granted by
weeks; or law, Executive Order, or regulation;
(3) On receipt of an equivalent in-
(6) Time during which an employee is
crease.
performing service, which is creditable
(c) Creditable service. The following
under section 8332(b) (5) or (7) of title 5,
periods of time shall be considered
United States Code;
creditable service for purposes of wait-
ing periods for within-grade increases: (7) The time during which an em-
(1) Time during which an employee is ployee is detailed to a non-Federal po-
in receipt of pay, including periods of sition under subchapter VI of chapter
leave with pay; 33 of title 5, United States Code; and
(2) Time during which an employee (8) Nonworkdays intervening between
with a prearranged regular scheduled an employees last regularly scheduled
tour of duty is in a nonpay status to workday in one position and the first
the extent that the time in a nonpay regularly scheduled workday in a new
status does not exceed, in the aggre- position.
gate: (9) Time during which an employee is
(i) One workweek in the waiting pe- temporarily employed by another agen-
riod for step 2; cy in a position covered by this sub-
(ii) Three workweeks in the waiting part.
period for step 3; or (d) Effective date. A within-grade in-
(iii) Four workweeks in the waiting crease shall be effective at the begin-
period for steps 4 and 5; ning of the first applicable pay period
(3) Time during which an employee or following the day an employee becomes
former employee is on leave of absence eligible for the increase.
501
532.419 5 CFR Ch. I (1116 Edition)
(e) Equivalent increase. The following Subpart EPremium Pay and

shall not be counted as equivalent in- Differentials
creases:
(1) Application of a new or revised 532.501 Definitions.
wage schedule or application of a new In this subpart:
pay or evaluation plan; Administrative workweek means a pe-
(2) Payment of additional compensa- riod of seven consecutive calendar
tion in the form of nonforeign or for- days.
eign post differentials or nonforeign Basic workweek for full time employ-
cost-of-living allowances; ees means the days and hours within an
(3) Adjustment of the General Sched- administrative workweek which make
ule; up the employees regularly scheduled
(4) Premium payment for overtime 40-hour workweek.
and holiday duty; Environmental differential means a dif-
ferential paid for a duty involving un-
(5) Payment of night shift differen-
usually severe hazards or working con-
tial;
ditions.
(6) Hazard pay differentials; Irregular or occasional overtime work
(7) Payment of rates above the min- means overtime work which is not part
imum rate of the grade in recognition of the regularly scheduled administra-
of specific qualifications, or in jobs in tive workweek.
specific hard-to-fill occupations; Night shift differential means the dif-
(8) Correction of an error in a pre- ferential paid the employee when the
vious demotion or reduction in pay; majority of regularly scheduled non-
(9) Temporary limited promotion fol- overtime hours worked fall between 3
lowed by change to lower grade to the p.m. and 8 a.m.
former or a different lower grade; Overtime work means authorized and
(10) A transfer or reassignment in the approved hours of work performed by
same grade and step to another local an employee in excess of eight hours in
wage area with a higher wage schedule; a day or in excess of 40 hours in an ad-
(11) Repromotion to a former or in- ministrative workweek, and includes
irregular or occasional overtime work
tervening grade of any employee whose
and regular overtime work.
earlier change to lower grade was not
Premium pay means additional com-
for cause and was not at the employ-
pensation for overtime, or Sunday
ees request; and work, and standby duty.
(12) An increase resulting from the Sunday work means work performed
grant of a quality step increase under during a regularly scheduled tour of
the General Schedule. duty within a basic workweek when
[46 FR 21344, Apr. 10, 1981, as amended at 49 any part of that work which is not
FR 37055, Sept. 21, 1984; 55 FR 46180, Nov. 1, overtime work is performed on Sunday.
1990] Regular overtime work means overtime
work which is a part of the regularly
532.419 Grade and pay retention. scheduled administrative workweek.
Regularly scheduled administrative
(a) In accordance with section 9(a)(1)
workweek means:
of Public Law 92392 (86 Stat. 564, 573),
(1) For full-time employees, the pe-
an employees initial rate of pay on
riod within an administrative work-
conversion to a wage schedule estab- week within which employees are
lished under the provisions of sub- scheduled to be on duty regularly.
chapter IV of chapter 53, title 5, United (2) For part-time employees, it
States Code, shall be determined under means the days and hours within an ad-
conversion rules prescribed by the Of- ministrative workweek during which
fice of Personnel Management. these employees are scheduled to be on
(b) Except as provided in paragraph duty regularly.
(a) of this section, an employees eligi- Tour of duty means the hours of a
bility for grade and/or pay retention day, i.e., a daily tour of duty, and the
shall be determined in accordance with days of an administrative workweek,
the provisions of part 536 of this title. i.e., a weekly tour of duty, that are
502
scheduled in advance and during which work which extends into or falls en-
an employee is required to perform on tirely within a day shift, shall be enti-
a regularly recurring basis. tled to overtime pay computed on the
night rate.
532.503 Overtime pay. (2) When the overtime is performed
(a)(1) Employees who are exempt on a nonworkday the employee shall be
from the overtime pay provisions of entitled to overtime pay computed on
the Fair Labor Standards Act of 1938, the rate of the employees last previous
as amended, shall be paid overtime pay regularly scheduled shift.
in accordance with 5 U.S.C. 5544 and (e)(1) An employee regularly assigned
this section. Employees who are non- to a rotating schedule involving work
exempt shall be paid overtime pay in on both day and night shifts who per-
accordance with part 551 of this chap- forms overtime work which extends or
ter. falls entirely within the succeeding
(2) Hours of work in excess of eight in shift shall be entitled to overtime pay
a day are not included in computing computed on the rate of the employees
hours of work in excess of 40 hours in regularly scheduled shift in effect for
an administrative workweek. that calendar day.
(b) Effect of leave on overtime pay. (1) (2) When the overtime is performed
Hours during which an employee is ab- on a nonworkday, the employee shall
sent from duty on paid leave during be entitled to overtime pay computed
time when the employee otherwise on the average rate of basic pay for all
would have been required to be on duty regularly scheduled shifts worked by
shall be considered hours of work in de- the employee during the basic work-
termining whether the employee is en- week.
titled to overtime pay for work per- (f) For an employee covered by 5
formed in excess of eight hours a day U.S.C. 5544, hours in a standby or on-
or 40 hours a week. call status or while sleeping or eating
(2) For the purposes of paragraph shall not be credited for the purpose of
(b)(1) of this section paid leave includes determining hours of work in excess of
but is not limited to: 8 hours in a day.
(i) Annual or sick leave; [46 FR 21344, Apr. 10, 1981, as amended at 56
(ii) Authorized absence on a day off FR 20341, May 3, 1991; 57 FR 59279, Dec. 15,
from duty granted by Executive or ad- 1992]
ministrative order; or
(iii) Authorized absence on a legal 532.504 Compensatory time off.
holiday; (a) At the request of an employee,
(3) Hours during which an employee the head of an agency may grant com-
is absent from duty on leave without pensatory time off from an employees
pay during a time when he/she other- tour of duty instead of payment under
wise would have been required to be on 532.503 or the Fair Labor Standards
duty shall not be considered hours of Act of 1938, as amended, for an equal
work in determining whether he/she is amount of irregular or occasional over-
entitled to overtime pay for work per- time work.
formed in excess of eight hours in a day (b) At the request of an employee,
or 40 hours in a week. the head of an agency may grant com-
(c) Callback overtime work. Irregular pensatory time off from an employees
or occasional overtime work performed basic work requirement under a flexi-
by an employee on a day when work ble work schedule under 5 U.S.C. 6122
was not regularly scheduled for the em- instead of payment under 532.503 or
ployee or for which the employee has the Fair Labor Standards Act of 1938,
been required to return to the place of as amended, for an equal amount of
employment shall be considered to be overtime work, whether or not irreg-
at least two hours in duration for the ular or occasional in nature.
purpose of overtime pay, regardless of (c) An agency may not require that
whether the employee performs work an employee be compensated for over-
for two hours. time work with an equal amount of

(d)(1) An employee regularly assigned compensatory time off from the em-
to a night shift, who performs overtime ployees tour of duty. An employee
503
532.505 5 CFR Ch. I (1116 Edition)
may not directly or indirectly intimi- porary shift fall within hours having
date, threaten, or coerce, or attempt to the higher differential.
intimidate, threaten, or coerce any (3) An employee regularly assigned to
other employee for the purpose of a day shift who is temporarily assigned
interfering with such employees rights to a night shift shall be paid a night
to request or not to request compen- shift differential.
satory time off in lieu of payment for (e) Leave with pay. (1) An employee
overtime hours. regularly assigned to a night shift shall
(d) The head of a department may fix be paid a night shift differential during
a time limit for an employee to request a period of leave with pay.
or take compensatory time off and may (2) An employee regularly assigned to
provide that an employee who fails to a day shift who is temporarily assigned
take compensatory time earned under to a night shift shall be paid a night
paragraph (a) or (b) of this section be- shift differential for any leave with pay
fore the time limit fixed shall lose the taken when scheduled to work night
right to compensatory time off and to shifts.
overtime pay unless the failure is due (3) An employee assigned to a regular
to an exigency of the service beyond rotating schedule involving work on
the employees control. both day and night shifts shall be paid
[62 FR 28307, May 23, 1997]
a night shift differential only for any
leave with pay taken when scheduled
532.505 Night shift differentials. to work night shifts.
(4) An employee who is not regularly
(a) Employees shall be entitled to reassigned to a day shift or a night shift
ceive night shift differentials in ac- but whose shift is changed at irregular
cordance with section 5343 of title 5, intervals shall be paid a night shift dif-
United States Code. ferential during leave with pay if the
(b) Absence on holidays. An employee employee received a night shift dif-
regularly assigned to a shift for which ferential for the last shift worked pre-
a night shift differential is payable ceding leave with pay.
shall be paid the night shift differen-
tial for a period of excused absence on 532.507 Pay for holiday work.
a legal holiday or other day off from
(a) An employee who is entitled to
duty granted by Executive or adminis-
holiday premium pay and who performs
trative order.
work on a holiday which is not over-
(c) Travel status. An employee regu- time work shall be paid the employees
larly assigned to a shift for which a rate of basic pay plus premium pay at
night shift differential is payable shall a rate equal to the rate of basic pay.
be paid the night shift differential for
(b) An employee shall be paid for
hours of the employees tour of duty
overtime work performed on a holiday
while in official travel status, regard-
at the same rate as for overtime on
less of whether the employee is per-

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Title 5

Revised as of January 1, 2016

Containing a codification of documents

Published by the Office of the Federal Register

Legal Status and Use of Seals and Logos

Use of ISBN Prefix

U.S. GOVERNMENT PUBLISHING OFFICE

U.S. Superintendent of Documents Washington, DC 204020001

Chapter IOffice of Personnel Management ................................... 3

Table of CFR Titles and Chapters ....................................................... 885

Alphabetical List of Agencies Appearing in the CFR ......................... 905

List of CFR Sections Affected ............................................................. 915

To cite the regulations in

Title 5ADMINISTRATIVE PERSONNEL is composed of three volumes. The parts

CHAPTER IOffice of Personnel Management ........................ 1

SUBCHAPTER ACIVIL SERVICE RULES

110 Posting notices of new OPM regulations ................ 17

432 Performance based reduction in grade and removal

PART 1COVERAGE AND (c) Competitive status shall mean basic

tive orders. service, or positions outside the

class postmaster position in accord- persons appointed to positions in the

satisfactory service in a position ex- 4.1 Prohibition against political ac-

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

or takes other action against an em- ized representatives of these bodies,

competitive service. These positions shall not acquire competitive status by

cepted positions by the appointment of

system determine it to be in the inter- PART 7GENERAL PROVISIONS

[E.O. 11935, 41 FR 37301, Sept. 3, 1976. Redesig-

PART 8APPOINTMENTS TO 8.3 Appointment of persons not citi-

PART 110POSTING NOTICES OF quirement to post the notice continues,

with announcements in employee news-

GENERAL PROVISIONS PERMISSIBLE ACTIVITIES

177.102 Administrative claim; when views and to coordinate the results, or

present a claim on behalf of the claim- be required to submit the following

(b) Personal injury. In support of a

(2) A detailed statement of the (2) A question of policy is or may be

ignee: ment), as appropriate. When a claimant

both the claimant and his or her attor- Subpart AAdministrative

if available, of the claimant;

if available, of the agency employee 178.103 Claim filed by a claimants

may be allowed in whole or in part. If imbursement of travel expenses, in-

refunds, to the agency from which the PART 179CLAIMS COLLECTION

to claims generally are also applicable

Subpart AGeneral Provisions 257), and, the Lighthouse Service Wid-

(5) The employees right to inspect offset);

salary offset (which may not exceed 15 179.207 Hearing.

(2) An employees consent to make resent himself or herself or may be rep-

against the debtor as provided by 5 179.209 Voluntary repayment agree-

agency designee and meet the other re-

179.210 Special review. (1) State that OPM has received a

(4) Lump-sum deductions from other practices and procedures as may be

Federal employee; and vided in 179.208, to the employees

should be scheduled to begin at the the due date if there is no indication of

179.215 Refunds. 179.301 Scope of regulations.

hearing before a hearing official fur-

Subpart DAdministrative Wage shall determine to be reasonable, use-

such types, quantities, or amounts of be presented within 2 years after the

provided in kind by the United States, aircraft disaster;

measures have been taken by the insurer, except as permitted under

tain as a minimum: the damaged property, the claimant

or contract packer; (1) A statement from the proper au-

(k) Carrier or insurer. In the event a 185.118 Rights of parties.

PART 185PROGRAM FRAUD CIVIL 185.101 Purpose.

185.116 Ex parte contacts. as a result of these procedures are de-