Census or survey or related activity pursuant to the provisions of title 13; (e) To a recipient who has provided the Office or an agency with advance adequate written assurance that the record will be used soley as a statistical research or reporting record, and the record is to be transferred in a form that is not individually identifiable.

Assurance includes:

(1) A statement of the purpose for requesting the records; and

(2) Certification that the records will be used only for statistical purposes;

(f) To the National Archives of the United States as a record which has sufficient historical or other value to warrant its evaluation by the Administrator of General Services or his designee to determine whether the record has such value;

(g) To another agency or to an instrumentality of any governmental jurisdiction within or under the control of the United States for a civil or criminal law enforcement activity if the activity is authorized by law, and if the head of the agency or instrumentality has made a written request to the agency which maintains the record specifying the particular portion desired and the law enforcement activity for which the record is sought;

(h) To a person pursuant to a showing of compelling circumstances affecting the health and safety of an individual (not necessarily the data subject). Upon such disclosure, the data subject must be notified in writing of the disclosure. This requirement is met when notification is transmitted to the last known address of the data subject;

(i) To either House of Congress, or to a committee or subcommittee (joint or of either House) to the extent that the subject matter falls within the jurisdiction of the committee or subcommittee;

(j) To the Comptroller General, or any authorized representative of that office in the course of the performance of the duties of the General Accounting Office; or

(k) Pursuant to the order of a court of competent jurisdiction, as defined in § 297.504 of this part.

§ 297.504 Disclosure pursuant to compulsory legal process.

(a) The Office or agency may disclose, without prior consent of the data subject, specified information from a system of records whenever such disclosure is pursuant to an order issued by a court of competent jurisdiction, Grand Jury, or quasi-judicial agency. For purposes of this subpart, a court of competent jurisdiction includes the judicial system of a state, territory, or possession of the United States.

(b) Notice of the order shall be provided as soon as practicable after service of the order and shall be mailed to the last known address of the individual and state the name and number of the case or proceeding, and the nature of the information sought.

(c) Before complying or refusing to comply with the order, an official with authority to disclose records under this subpart will consult legal counsel to ensure that the response is appropriate.

§ 297.505 Disclosure pursuant to a subpoe

na.

(a) The Office or agency may disclose, without prior consent of the individual, specified information from a system of records whenever such disclosure is pursuant to subpoena issued in connection with a judicial or administrative proceeding.

(b) Before responding to a subpoena, an official with authority to disclose records under this part, will consult, as appropriate, with legal counsel to ensure that:

(1) The requested materials are not privileged and are relevant to the subject matter of the related judicial or administrative proceeding.

(2) Motion is made to quash or modify a subpoena that is unreasonable or oppressive;

(3) Motion is made for a protective order where necessary to restrict the use or disclosure of any information furnished for purposes other than those of the judicial or administrative proceeding; or

(4) Request for an extension, if needed, of the time allowed for response is made.

(c) If a subpoena for production of documents requests appearance of an agency employee, the response shall be to furnish certified copies of the appropriate records to the requesting party. In no event will original documents be released from the physical control of a responsible office or agency employee.

(d) If oral testimony is sought by the subpoena, an explanation by the party seeking the testimony which sets forth the testimony desired, must be furnished. The employee or former employee of the office who has been subpoenaed to provide material or information shall consult with legal counsel to determine the matters about which the employee may properly testify.

(e) In all situations concerning a subpoena or other demand for an employee of the Office or agency to produce any material or testimony relating to information contained in the files of the Office or agency acquired as part of the employee's performance of his or her official duties, the employee shall not disclose the information without prior approval of the appropriate Office or agency official.

(f) If it is decided that the information or material should not be provided, the employee or former employee subpoenaed shall respectfully decline to comply with the demand on the basis of instructions from the appropriate Office or agency official.

(g) When subpoenaed records concerning a party or a non-party are subject to the Privacy Act, the disclosing official of the Office or agency shall be responsible for notifying the individual of the subpoena's issuance. Notice shall be mailed to the last known address of the individual and state the date the subpoena is returnable, the name and number of the case or proceeding, and the nature of the information sought. Notice shall be provided as soon as practicable after service of the subpoena.

§ 297.506 Accounting of disclosure.

(2) The name, position title, and address of the person to whom the disclosure was made;

(3) The method and purpose of disclosure;

(4) The name and position title of the person making the disclosure; and (5) The date of the disclosure of the record.

(b) The Office or agency must record the accounting of disclosures and must retain this accounting for at least five years or the life of the record, whichever is longer. This accounting of disclosures may be maintained either in the record itself or elsewhere, and must be in a manner that permits an accurate and complete response to any proper request for an accounting of all disclosures made.

(c) Except for disclosures made under 5 U.S.C. 552a(b)(7) for law en

forcement purposes, or disclosures from Office systems of personnel records for which an exemption from 5 U.S.C. 552a(c)(3) has been claimed, the accounting of disclosures is available to the data subject on request.

(d) For purposes of this subpart, the system of accounting of disclosures is not a system of records as defined in this part and no accounting need be maintained for disclosures of the accounting of disclosures.

§ 297.507 Penalties.

(a) Whenever the Office or agency fails to comply with any provision of this subpart in such a way as to have an adverse effect on a data subject, that data subject may bring civil action against the Office or agency.

(b) Whenever an Office or agency employee knowingly and willfully makes a disclosure to any person or agency not entitled to receive it, that individual may be guilty of a misdemeanor and fined not more than $5,000.

(c) Whenever a requester, or an Office or agency employee knowingly and willfully requests or obtains any record concerning an individual from an agency under false pretenses, that individual may be guilty of a misdemeanor and fined not more than $5,000.

The purpose of this subpart is to establish principles to govern, as nearly as is administratively feasible and practical, the employment practices of the Federal Government generally, and of individual agencies, that affect the recruitment, measurement, ranking, and selection of individuals for initial appointment and competitive promotion in the competitive service or in positions in the government of the District of Columbia required to be filled in the same manner that positions in the competitive service are filled. For the purpose of this subpart, the term "employment practices" includes the development and use of examinations, qualification standards, tests, and other measurement instruments.

[36 FR 15447, Aug. 14, 1971]

§ 300.102 Policy.

This subpart is directed to implementation of the policy that competitive employment practices:

(a) Be practical in character and as far as possible relate to matters that fairly test the relative capacity and fitness of candidates for the jobs to be filled;

(b) Result in selection from among the best qualified candidates;

(c) Be developed and used without discrimination because of race, color, religion, sex, age, national origin, partisan political affiliation or other nonmerit grounds; and

(d) Insure to the candidate opportunity for appeal or administrative review, as appropriate.

[40 FR 15379, Apr. 7, 1975]

§ 300.103 Basic requirements.

(a) Job analysis. Each employment practice of the Federal Government generally, and of individual agencies, shall be based on a job analysis to identify:

(1) The basic duties and responsibilities;

(2) The knowledges, skills, and abilities required to perform the duties and responsibilities; and

(3) The factors that are important in evaluating candidates. The job analysis may cover a single position or group of positions, or an occupation or group of occupations, having common characteristics.

(b) Relevance. (1) There shall be a rational relationship between performance in the position to be filled (or in the target position in the case of an entry position) and the employment practice used. The demonstration of rational relationship shall include a showing that the employment practice was professionally developed. A minimum educational requirement may not be established except as authorized under section 3308 of title 5, United States Code.

(2) In the case of an entry position the required relevance may be based upon the target position when

(i) The entry position is a training position or the first of a progressive series of established training and de

velopment positions leading to a target position at a higher level; and

(ii) New employees, within a reasonable period of time and in the great majority of cases, can expect to progress to a target position at a higher level.

(c) Equal employment opportunity. An employment practice shall not discriminate on the basis of race, color, religion, sex, age, national origin, partisan political affiliation, or other nonmerit factor. Employee selection procedures shall meet the standards established by the "Uniform Guidelines on Employee Selection Procedures" (1978), 43 FR 38290 (August 25, 1978). [40 FR 15380, Apr. 7, 1975, as amended at 43 FR 38310, Aug. 25, 1978]

(a) Employment practices. A candidate who believes that an employment practice which was applied to him or her by the Office of Personnel Management violates a basic requirement in § 300.103 is entitled to appeal to the Merit Systems Protection Board under the provisions of its regulations.

(b) Examination ratings. A candidate may file an appeal with the Office from his examination rating or the rejection of his application, except that, where the Office has delegated examining authority to an agency, the candidate should appeal directly to that agency. The appeal shall be filed and processed in accordance with instructions in Chapter 337 of the Federal Personnel Manual.

(c) Complaints and grievances to an agency. (1) A candidate may file a complaint with an agency when he believes that an employment practice which was applied to him and which is administered or required by the agency discriminates against him on the basis of race, color, religion, sex, or national origin; or age, provided that at the time of the alleged discriminatory action the candidate was at least 40 years of age but less than 65 years of age. The complaint shall be filed and processed in accordance with Subparts B and E of Part 713 of this chapter.

(2) Except as provided in paragraph (c)(1) of this section, an employee may

file a grievance with an agency when he or she believes that an employment practice which was applied to him or her and which is administered or required by the agency violates a basic requirement in § 300.103. The grievance shall be filed and processed under the agency grievance system established in accordance with Part 771 of this chapter, or a negotiated grievance system.

(5 U.S.C. 7701, et seq.)

[40 FR 15380, Apr. 7, 1975, as amended at 41 FR 51579, Nov. 23, 1976; 44 FR 48951, Aug. 21, 1979]

Subpart B-[Reserved]

Subpart C-OPM Approval in Filling Positions in GS-16 and Above

§ 300.301 OPM approval in filling positions in GS-16 and above.

An agency, unless excepted from this requirement by law, may fill a competitive or excepted position classified in GS-16, GS-17, or GS-18, only by a person whose qualifications for the position have been approved by OPM.

(5 U.S.C. 3324)

[33 FR 12412, Sept. 4, 1968]

Subparts D-E-[Reserved]

Subpart F-Time-In-Grade Restrictions

§ 300.601 Applicability.

(a) This subpart applies to any advancement from a competitive or excepted position that is subject to the General Schedule to a competitive position that is subject to the General Schedule by:

(1) Promotion;

(2) Transfer to a higher grade; or

(3) Any type of appointment under this chapter (including reemployment and reinstatement) made within 1 year after separation from a nontemporary appointment.

(b) This subpart does not apply:

(1) When the position from which the advancement is made is outside the competitive service and in the legislative or judicial branch; or

(2) When the position from which the advancement is made is not subject to the General Schedule unless the employee advanced held a position of this type within the preceding year. [37 FR 11965, June 16, 1972]

§ 300.602 Restrictions.

(a) Advancement to positions at GS12 or above. An agency may advance an employee to a position at GS-12 or above only after he has served 1 year at the next lower grade.

(b) Advancement to positions at GS6 through GS-11. An agency may advance an employee to a position at GS-6 through GS-11 only after he has served:

(1) One year in a position two grades lower, when the position to which he is advanced is in a line of work properly classified at two-grade intervals; or (2) One year at the next lower grade, when the position to which he is advanced is in a line of work properly classified at one-grade intervals.

(c) Advancement to positions at GS5 or below. An agency may advance an employee to a position at GS-5 or below which is not more than two grades above the lowest grade he held within the preceding year under a nontemporary appointment.

[33 FR 12412, Sept. 4, 1968]

§ 300.603 Exceptions to restrictions.

(a) Section 300.602 does not prevent the advancement of an employee when:

(1) The advancement is in accordance with a training agreement which has been approved by the Office or established under agreement with the Office; however, an agency may not make promotions of more than 2 grades in 1 year solely on the basis of a training agreement or series of training agreements;

(2) The advancement is to any grade or level up to that from which the employee has ever been demoted or separated by any agency because of a reduction in force;

(3) The employee is within reach on a register for competitive appointment to the position to be filled; or

(4) The head of the agency or his or her designee, with the prior approval of the Office or under agreement ne

gotiated with the Office, authorizes the advancement to avoid undue hardship or inequity, in an individual case of meritorious nature.

(b) Section 300.602 (a) and (b) does not prevent the advancement of an employee who has 1 year of service in a position two grades lower than the position to be filled if there is no position in the normal line of promotion that is one grade lower than the position to be filled.

(c) Section 300.602(c) does not prevent the advancement of an employee to a position at GS-5 or below which he or she held previously or to which he or she could have been advanced previously under that paragraph.

(5 U.S.C. 1104; Pub. L. 95-454, sec. 3(5)) [44 FR 55132, Sept. 25, 1979]

§ 300.604 Periods of creditable service.

(a) Except as provided in § 330.502 of this chapter, the periods of service required by §§ 300.602 (a) and (b) and 300.603(b) include all service at the appropriate or higher grade or level in positions in the Federal or District of Columbia civilian service regardless of whether or not the positions were subject to the General Schedule.

(b) Except as provided in § 330.502 of this chapter, when two periods of service in positions subject to the General Schedule are interrupted for less than 1 year by service in a position not subject to the General Schedule, the latter service is counted as a continuation of the prior service in the position subject to the General Schedule.

(c) Except as provided in paragraph (b) of this section, and in § 330.502 of this chapter, service in a position not subject to the General Schedule is counted at the equivalent General Schedule grade in effect when the service was performed. The equivalent General Schedule grade is determined by comparing the representative rate of the position, as defined in Part 351 of this chapter, with the representative rates of positions under the General Schedule. The highest General Schedule grade whose representative rate does not exceed the representative rate of the position by more than one within-grade increase is the equivalent General Schedule grade. [34 FR 2649, Feb. 27, 1969]