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answer orally and in writing, and to secure affidavits, if the appointee is in an active duty status.

(2) The agency shall designate an official to hear the appointee's oral answer who has authority either to make or to recommend a final decision on the proposed adverse action.

(3) The right to answer orally in person does not include the right to a formal hearing with examination of witnesses unless the agency provides for a formal hearing in its regulations in accordance with paragraph (g) of this section.

(4) If the appointee wishes the agency to consider any medical condition that may have affected the basis for the adverse action, the appointee shall be given reasonable time to furnish medical documentation of the condition. The same procedures that are applicable in § 752.404(c)(3) of this chapter are also applicable for an appointee in the Senior Executive Serv

ice.

$ 752.604 Procedures.

(a) Applicability. The procedures provided in 5 U.S.C. 7543(b) apply to any appointee covered by this subpart.

(b) Notice of proposed action. (1) The notice of proposed action shall inform the appointee of his or her right to review the material that is relied on to support the reasons for action given in the notice.

(2) The agency may not use material that cannot be disclosed to the appointee or to the appointee's representative or designated physician under $ 297.204(c) of this chapter to support the reasons in the notice.

(3) Under ordinary circumstances, an appointee whose removal has been proposed shall remain in a duty status in his or her regular position during the advance notice period. In those rare circumstances when the agency determines that the appointee's continued presence in the work place during the notice period may pose a threat to the appointee or others, result in loss of or damage to Government property, or otherwise jeopardize legitimate Government interests, the agency shall consider whether any of the following alternatives is feasible:

(i) Assigning the appointee to duties where he or she is no longer a threat to safety, the agency mission, or Government property;

(ii) Placing the appointee on leave with his or her consent;

(iii) Carrying the appointee on appropriate leave (annual or sick leave, leave without pay, or absence without leave) if he or she is voluntarily absent for reasons not originating with the agency; or

(iv) Curtailing the notice period when the agency can invoke the provi. sions of paragraph (d) of this section (the “crime provision”).

(4) If none of the alternatives in paragraph (b)(3) of this section, is available, agencies may consider placing the appointee in a paid, nonduty status during all or part of the advance notice period.

(c) Appointee's answer. (1) The agency shall give the appointee a reasonable amount of official time to review the material relied on to support its proposed action, to prepare an

(d) Exception. Section 7543(b)(1) of Title 5 of the United States Code authorizes an exception to the 30 days' advance written notice when the crime provision is invoked. This provision may be invoked even in the absence of judicial action if the agency has reasonable cause to believe that the appointee has committed a crime for which a sentence of imprisonment may be imposed. The agency may require the appointee to furnish any answer to the proposed action, and affidavits and other documentary evidence to support the answer, within such time as under the circumstances would be reasonable, but not less than 7 days. When the circumstances require immediate action, the agency may place the appointee in a nonduty status with pay for such time as is necessary to effect the action.

(e) Representation (1) Under 5 U.S.C. 7543(b)(3), an appointee covered by this subpart is entitled to be represented by an attorney or other representative.

(2) An agency may disallow as an appointee's representative

(i) An individual whose activities as a representative would cause a conflict of interest or position;

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(ii) An employee of the agency whose release from his or her official position would give rise to unreasonable costs; or

(iii) An employee of the agency whose priority work assignments preclude the employee's release.

(f) Agency decision. In arriving at its written decision, the agency may consider only the reasons specified in the notice of proposed action. The agency shall consider any reply of the appointee or the appointee's representative made to a designated official and any medical documentation furnished under paragraph (c) of this section. The agency shall deliver the notice of decision to the appointee at or before the time the action will be effective. The notice of decision shall inform the appointee of his or her appeal rights.

(g) Hearing. Under 5 U.S.C. 7543(c), the agency may, in its regulations, provide a hearing in place of or in addition to the opportunity for written and oral reply.

Subpart C-Establishment of Agency

Administrative Grievance System 771.301 Establishment and publication. 771.302 Criteria. 771.303 Obligation of the grievant. 771.304 Review by the Office of Personnel

Management. AUTHORITY: 5 U.S.C. 1302, 3301, 3302, 7301; E.O. 9830, 3 CFR 1943-1948 Comp., pp. 606-624; E.O. 11222, 3 CFR 1964-1969 Comp., p. 306.

SOURCE: 45 FR 9, Jan. 2, 1980, unless otherwise noted.

Subpart A-[Reserved)

8 752.605 Appeal rights.

(a) Under 5 U.S.C. 7543(d), a career appointee against whom an action is taken under this subpart is entitled to appeal to the Merit Systems Protection Board.

(b) A limited term or limited emergency appointee who is covered under $ 752.601(c)(2) also may appeal an action taken under this subpart to the Merit Systems Protection Board.

8 752.606 Agency records.

The agency shall maintain copies of the adverse action record items specified in 5 U.S.C. 7543(e) and furnish them upon request as required by that subsection.

Subpart B-General 8771.201 Purpose.

This part sets forth the regulations under which each agency shall establish an agency administrative grievance system. $771.202 Definitions.

In this part:

Bargaining unit employee means an employee included in an appropriate exclusive bargaining unit as determined by the Federal Labor Relations Authority for which a labor organization has been granted exclusive recog. nition.

Employee includes a former employ. ee of an agency for whom a remedy can be provided.

Grievance, except as provided in $ 771.206 of this part, means a request by an employee, or by a group of employees acting as individuals, for personal relief in a matter of concern or dissatisfaction relating to the employ. ment of the employee(s) which is subject to the control of agency management.

Grievance file means a separate file which contains all documents related to the grievance, including but not limited to any statements of witnesses, records or copies thereof, the report of the hearing when one is held, statements made by the parties to the grievance, and the decision.

PART 754—(RESERVED]

PART 771-AGENCY ADMINISTRA

TIVE GRIEVANCE SYSTEM

Subpart A-[Reserved)

Subpart B-General

Sec. 771.201 Purpose. 771.202 Definitions. 771.203 Agency coverage.

Personal relief means a specific section 4202(5) of title 38, United remedy directly benefiting the States Code; grievant(s) and may not include a re- (4) A physician, dentist, nurse, or quest for disciplinary or other action other employee appointed under affecting another employee.

Chapter 73 of title 38, United States

Code; 8 771.203 Agency coverage.

(5) A member of the Foreign Service Except as provided in $771.206(a), of the United States covered under the this part applies to the executive agen Foreign Service Grievance System as cies and military departments as de

defined in Part J of Title VI of the fined by sections 102 and 105 of title 5, Foreign Service Act of 1946, as amendUnited States Code, and to those orga ed; or nizational units of the legislative and

(6) An employee otherwise included judicial branches having positions in

under $771.204(a) of this subpart the competitive service.

when he or she is a member of a class

of employees excluded from coverage 8771.204 Employee coverage.

by the Office on the recommendation (a) Required coverage. Except as pro

of the head of the agency concerned. vided in $771.206(b), this part shall

(c) Matters excluded. (1) This part cover all nonbargaining unit employ

does not apply to: ees of the agency.

(i) The content of published agency (b) Discretionary coverage.

regulations and policy; An

(ii) A decision which is appealable to agency may extend the coverage of

the Merit Systems Protection Board this part to bargaining unit employees consistent with the provisions of 5

or subject to final administrative | U.S.C. 7121, or to applicants for em

review by the Office of Personnel

Management or the Equal Employployment with the agency.

ment Opportunity Commission under 8771.205 Grievance coverage.

law or regulations of the Office or the

Commission. Except as provided in $ 771.206(c),

(iii) Nonselection for promotion this part applies to any matter of con

from a group of properly ranked and cern or dissatisfaction relating to the

certified candidates or failure to reemployment of an employee which is

ceive a noncompetitive promotion. subject to the control of agency man

(iv) A preliminary warning notice of agement, including any matter on

an action which, if effected, would be which an employee alleges that coer

covered under the grievance system or cion, reprisal, or retaliation has been

excluded from coverage by paragraph practiced against him or her.

(c)(1)(ii) of this section;

(v) A return of a Senior Executive § 771.206 Exclusions.

Service career appointee to the Gener(a) Agencies excluded. This part does al Schedule or another pay system not apply to the Central Intelligence during the one year period of probaAgency, the Federal Bureau of Investi- tion or for less than fully successful gation, the Defense Intelligence executive performance under section Agency, the National Security Agency, 3592 of title 5, United States Code; the Nuclear Regulatory Commission, (vi) A reassignment of a Senior Execthe Tennessee Valley Authority, the utive Service appointee following the Postal Rate Commission, and the U.S. appointee's receipt of an unsatisfacPostal Service.

tory rating under section 4314 of title (b) Employees excluded. This part 5, United States Code; does not apply to:

(vii) An action which terminates a (1) Anoncitizen appointed under temporary promotion within a maxiCivil Service Rule VIII, § 8.3 of this mum period of two years and returns title;

the employees to the position from (2) An alien appointed under section which the employee was temporarily 1471(5) of title 22, United States Code; promoted, or reassigns or demotes the

(3) An individual paid from funds as employee to a different position that defined in section 2105(c) of title 5 or is not at a lower grade or pay than the

311-005

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position from which the employee was voluntarily entered into by an employtemporarily promoted;

ee which: (A) assigns the employee (viii) An action which terminates a from one geographical location to anterm promotion at the completion of other or (B) returns an employee from the project or specified period, or at an overseas assignment. the end of a rotational assignment in (2) This part does not apply to the excess of two years but not more than following actions unless the agency exfive years, and returns the employee tends the coverage to any aspect of to the position from which promoted them: or to a different position of equivalent (i) A return of an employee from an grade and pay in accordance with initial appointment as a supervisor or $ 335.102(g).

manager to a nonsupervisory or non(ix) The substance of the critical ele managerial position for failure to satments and performance standards of isfactorily complete the probationary an employee's position which have period under section 3321(a)(2) of title been established in accordance with 5, United States Code, and subpart I of the requirements of subchapter I of part 315 of this title; and chapter 43 of title 5, United States (ii) A separation action not excluded Code, and part 430 of this title;

by paragraph (c)(1) of this section. (x) The granting of or failure to

(45 FR 9, Jan. 2, 1980; 45 FR 4338, Jan. 22, grant or the amount of an award

1980, as amended at 45 FR 24856, Apr. 11, granted under part 430, subpart E; or

1980; 46 FR 44416, Sept. 4, 1981; 48 FR the granting of or failure to grant or

49491, Oct. 25, 1983; 50 FR 26965, July 1, the amount of an award granted under

1985; 50 FR 35504, Aug. 30, 1985; 51 FR part 451; or the adoption of or failure

8421, Mar. 11, 1986) to adopt an employee suggestion or invention under part 451; or the grant

Subpart C-Establishment of Agency ing of or failure to grant an award of

Administrative Grievance System the rank of meritorious or distinguished executive under 4507 of title

§ 771.301 Establishment and publication. 5, United States Code and part 451, subpart B of this chapter.

(a) Establishment. Each agency cov(xi) The receipt of or failure to re

ered by this part shall establish and ceive a performance award under sec

administer an agency grievance system tion 5384 of title 5, United States

in accordance with the criteria in Code, or a quality salary increase

§ 771.302 of this subpart. under section 5336 of title 5, United

(b) Publication. Each agency shall States Code;

publish and make available to employ(xii) A decision to grant or not to

ees copies of its administrative grievgrant a general increase, merit in

ance procedures. crease, or performance award under the Performance Management and

$771.302 Criteria. Recognition System, or a decision on The following criteria shall govern the granting of or failure to grant the establishment and administration cash awards or honorary recognition of an agency administrative grievance under 5 U.S.C. chapter 54 and part 540 system: of this chapter;

(a) Prompt consideration of each (xiii) The termination under subpart grievance, including reasonable time H of part 315 of this title of a proba- limits for processing the grievance. tioner for unsatisfactory performance; (b) Procedures appropriate for the

(xiv) The termination under subpart matter being grieved which provide D of part 359 of this title of an SES the employee a reasonable opportunicareer appointee during probation for ty to present a grievance and receive unsatisfactory performance.

fair consideration of the matter being (xv) A performance evaluation under grieved. The procedures shall provide subchapter II of chapter 43 of title 5, for fact-finding, when appropriate, United States Code.

which shall include a hearing when (xvi) An action taken in accordance one is suitable to ascertain the circumwith the terms of a formal agreement stances concerning the grievance.

$771.303 Obligation of the grievant.

An employee in exercising the entitlement to present a grievance under this part shall:

(a) Comply with appropriate time limits established by the agency;

(b) Furnish sufficient detail to clearly identify the matter being grieved; and

(c) Specify the personal relief being requested.

Fact-finding procedures shall be carried out by a person(s) who has not been involved in the matter being grieved and who does not occupy a position subordinate to any official who recommended, advised, made a decision on, or who otherwise is or was in volved in, the matter being grieved.

(c) Assurance to the grievant of:

(1) Freedom from restraint, interference, coercion, discrimination or reprisal in presenting a grievance;

(2) The right to be accompanied, represented, and advised by a representative of his or her own choosing, except that an agency may disallow the choice of an individual as a representative which would result in a conflict of interest or position, which would conflict with the priority needs of the agency, or which would give rise to unreasonable costs to the Government;

(3) A reasonable amount of official time to present the grievance if the employee is otherwise in a duty status; and

(4) The right to communicate with the servicing personnel office or a counselor of the agency.

(d) Assurance to the employee's representative of:

(1) Freedom from restraint, interference, coercion, discrimination or reprisal; and

(2) A reasonable amount of official time to present the grievance if the representative is an employee of the agency and is otherwise in a duty status;

(e) When fact-finding is utilized, establishment of a grievance file which is made available to the grievant and his or her representative for review and comment;

(f) At any time an employee places a grievance in writing, a written decision, which includes a report of findings and reasons for the determination, made by:

(1) An official at a higher level than any employee involved in any phase of the grievance, except when the head of the agency has been involved, or

(2) The official(s) designated to determine the disputed facts.

8771.304 Review by the Office of Person

nel Management. The Office of Personnel Management shall review from time to time each agency administrative grievance system developed under this part to determine whether the administrative grievance system meets the requirements of this part. The Office shall require corrective action to bring a system which fails to meet the requirements into conformity. The Office does not act on a request by an employee to review the processing of, or the decision on, an individual grievance.

PART 792—FEDERAL EMPLOYEES'

HEALTH AND COUNSELING PROGRAMS

Subpart A-Regulatory Requirements for Alco

holism and Drug Abuse Programs and

Services for Federal Civilian Employees Sec. 792.101 Statutory requirements. 792.102 General. 792.103 Coverage. 792.104 Responsibilities of the Office of

Personnel Management. 792.105 Agency responsibilities.

Subpart B-Reserved]

AUTHORITY: Sec. 201 of Pub. L 91-616, 84 Stat. 1849, as amended and transferred to sec. 520 of the Public Health Services Act by sec. 2(b)(13) of Pub. L. 98-24 (42 U.S.C. 290dd-1) and sec. 413 of Pub. L. 92-255, 86 Stat. 84, as amended and transferred to sec. 525 of the Public Health Service Act by sec. 2(b)(16)(A) of Pub. L. 98-24 (42 U.S.C. 290ee-1).

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