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5 USC PART III, Subpart F, CHAPTER 73, SUBCHAPTER I: REGULATION OF CONDUCT
From Title 5 – GOVERNMENT ORGANIZATION AND EMPLOYEES
PART III—EMPLOYEES
Subpart F—Labor-Management and Employee Relations
CHAPTER 73—SUITABILITY, SECURITY, AND CONDUCT
SUBCHAPTER I—REGULATION OF CONDUCT
§7301. Presidential regulations
The President may prescribe regulations for the conduct of employees in the executive branch.
(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 524.)
| Historical and Revision Notes | ||
| Derivation | U.S. Code | Revised Statutes and
Statutes at Large |
| 5 U.S.C. 631
(last 16 words). |
R.S. §1753 (last 16 words). | |
The words “employees in the executive branch” are substituted for “persons who may receive appointments in the civil service”.
Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.
Short Title of 1993 Amendment
Pub. L. 103–94, §1, Oct. 6, 1993, 107 Stat. 1001, provided: “That this Act [enacting sections 5520a and 7321 to 7326 of this title and section 610 of Title 18, Crimes and Criminal Procedure, amending sections 1216, 2302, 3302 and 3303 of this title, sections 602 and 603 of Title 18, section 410 of Title 39, Postal Service, and sections 1973d and 9904 of Title 42, The Public Health and Welfare, omitting former sections 7321 to 7328 of this title, and enacting provisions set out as notes under section 7321 of this title and section 410 of Title 39] may be cited as the ‘Hatch Act Reform Amendments of 1993’.”
Short Title of 1986 Amendment
Pub. L. 99–570, title VI, §6001, Oct. 27, 1986, 100 Stat. 3207–157, provided that: “This title [enacting sections 7361 to 7363 and 7904 of this title, amending sections 290dd–1 and 290ee–1 of Title 42, The Public Health and Welfare, and enacting provisions set out as notes under section 7361 of this title and section 801 of Title 21, Food and Drugs] may be cited as the ‘Federal Employee Substance Abuse Education and Treatment Act of 1986’.”
Emergency Preparedness Functions
For assignment of certain emergency preparedness functions to the Director of the Office of Personnel Management, see Parts 1, 2, and 22 of Ex. Ord. No. 12656, Nov. 18, 1988, 53 F.R. 47491, set out as a note under section 5195 of Title 42, The Public Health and Welfare.
Transportation Workplace Drug and Alcohol Testing Program; Addition of Fentanyl and Other Substances
Pub. L. 115–271, title VIII, §8105, Oct. 24, 2018, 132 Stat. 4105, provided that:
“(a) Mandatory Guidelines for Federal Workplace Drug Testing Programs.—
“(1) In general.—Not later than 180 days after the date of enactment of this Act [Oct. 24, 2018], the Secretary of Health and Human Services shall—
“(A) determine whether a revision of the Mandatory Guidelines for Federal Workplace Drug Testing Programs to expand the opiate category on the list of authorized substance testing to include fentanyl is justified, based on the reliability and cost-effectiveness of available testing; and
“(B) consider whether to include with the determination under subparagraph (A) a separate determination on whether a revision of the Mandatory Guidelines for Federal Workplace Drug Testing Programs to expand the list of substances authorized for testing to include any other drugs or other substances listed in schedule I and II of section 202 of the Controlled Substances Act (21 U.S.C. 812) is justified based on the criteria described in subparagraph (A).
“(2) Revision of guidelines.—If an expansion of the substance list is determined to be justified under paragraph (1), the Secretary of Health and Human Services shall—
“(A) notify the Committee on Commerce, Science, and Transportation of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives of the determination; and
“(B) publish in the Federal Register, not later than 18 months after the date of the determination under that paragraph, a final notice of the revision of the Mandatory Guidelines for Federal Workplace Drug Testing Programs to expand the list of substances authorized to be tested to include the substance or substances determined to be justified for inclusion.
“(3) Report.—If an expansion of the substance list is determined not to be justified under paragraph (1), the Secretary of Health and Human Services shall submit to the Committee on Commerce, Science, and Transportation of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives a report explaining, in detail, the reasons the expansion of the list of authorized substances is not justified.
“(b) Department of Transportation Drug-testing Panel.—If an expansion is determined to be justified under subsection (a)(1), the Secretary of Transportation shall publish in the Federal Register, not later than 18 months after the date the final notice is published under subsection (a)(2), a final rule revising part 40 of title 49, Code of Federal Regulations, to include such substances in the Department of Transportation’s drug-testing panel, consistent with the Mandatory Guidelines for Federal Workplace Drug Testing Programs as revised by the Secretary of Health and Human Services under subsection (a).
“(c) Savings Provision.—Nothing in this section may be construed as—
“(1) delaying the publication of the notices described in sections 8106 [enacting provisions set out as a note under section 31306 of Title 49, Transportation] and 8107 [enacting provisions set out as a note below] of this Act until the Secretary of Health and Human Services makes a determination or publishes a notice under this section; or
“(2) limiting or otherwise affecting any authority of the Secretary of Health and Human Services or the Secretary of Transportation to expand the list of authorized substance testing to include an additional substance.”
Mandatory Guidelines for Federal Workplace Drug Testing Programs Using Oral Fluid
Pub. L. 115–271, title VIII, §8107, Oct. 24, 2018, 132 Stat. 4107, provided that:
“(a) Deadline.—Not later than December 31, 2018, the Secretary of Health and Human Services shall publish in the Federal Register a final notice of the Mandatory Guidelines for Federal Workplace Drug Testing Programs using Oral Fluid, based on the notice of proposed mandatory guidelines published in the Federal Register on May 15, 2015 (94 [probably should be 80] FR 28054).
“(b) Requirement.—To the extent practicable and consistent with the objective of the testing described in subsection (a) to detect illegal or unauthorized use of substances by the individual being tested, the final notice of scientific and technical guidelines under that subsection, as determined by the Secretary of Health and Human Services, shall eliminate the risk of positive test results, of the individual being tested, caused solely by the drug use of others and not caused by the drug use of the individual being tested.
“(c) Rule of Construction.—Nothing in this section may be construed as requiring the Secretary of Health and Human Services to reissue a notice of proposed mandatory guidelines to carry out subsection (a).”
Electronic Recordkeeping
Pub. L. 115–271, title VIII, §8108(a), (b), Oct. 24, 2018, 132 Stat. 4107, provided that:
“(a) Deadline.—Not later than 1 year after the date of enactment of this Act [Oct. 24, 2018], the Secretary of Health and Human Services shall—
“(1) ensure that each certified laboratory that requests approval for the use of completely paperless electronic Federal Drug Testing Custody and Control Forms from the National Laboratory Certification Program’s Electronic Custody and Control Form systems receives approval for those completely paperless electronic forms instead of forms that include any combination of electronic traditional handwritten signatures executed on paper forms; and
“(2) establish a deadline for a certified laboratory to request approval under paragraph (1).
“(b) Savings Clause.—Nothing in this section [enacting this note and provisions set out as a note under section 322 of Title 49, Transportation] may be construed as limiting or otherwise affecting any authority of the Secretary of Health and Human Services to grant approval to a certified laboratory for use of completely paperless electronic Federal Drug Testing Custody and Control Forms, including to grant approval outside of the process under subsection (a).”
Continuation of Random Drug Testing Program for Certain Department of Defense Employees
Pub. L. 105–261, div. A, title XI, §1108, Oct. 17, 1998, 112 Stat. 2142, provided that:
“(a) Continuation of Existing Program.—The Secretary of Defense shall continue to actively carry out the drug testing program, originally required by section 3(a) of Executive Order No. 12564 (51 Fed. Reg. 32889; September 15, 1986) [set out below], involving civilian employees of the Department of Defense who are considered to be employees in sensitive positions. The Secretary shall comply with the drug testing procedures prescribed pursuant to section 4 of the Executive order.
“(b) Testing Upon Reasonable Suspicion of Illegal Drug Use.—The Secretary of Defense shall ensure that the drug testing program referred to in subsection (a) authorizes the testing of a civilian employee of the Department of Defense for illegal drug use when there is a reasonable suspicion that the employee uses illegal drugs.
“(c) Notification to Applicants.—The Secretary of Defense shall notify persons who apply for employment with the Department of Defense that, as a condition of employment by the Department, the person may be required to submit to drug testing under the drug testing program required by Executive Order No. 12564 (51 Fed. Reg. 32889; September 15, 1986) pursuant to the terms of the Executive order.
“(d) Definitions.—In this section, the terms ‘illegal drugs’ and ’employee in a sensitive position’ have the meanings given such terms in section 7 of Executive Order No. 12564 (51 Fed. Reg. 32889; September 15, 1986).”
Annual Certification of Drug-Free Workplace Plan Administrators
Pub. L. 106–58, title VI, §624, Sept. 29, 1999, 113 Stat. 471, provided that: “Notwithstanding any provision of law, the President, or his designee, must certify to Congress, annually, that no person or persons with direct or indirect responsibility for administering the Executive Office of the President’s Drug-Free Workplace Plan are themselves subject to a program of individual random drug testing.”
Similar provisions were contained in the following prior appropriations acts:
Pub. L. 105–277, div. A, §101(h) [title VI, §634], Oct. 21, 1998, 112 Stat. 2681–480, 2681-524.
Pub. L. 105–61, title VI, §621, Oct. 10, 1997, 111 Stat. 1313.
Pub. L. 104–208, div. A, title I, §101(f) [title VI, §623], Sept. 30, 1996, 110 Stat. 3009–314, 3009-358.
Pub. L. 104–52, title VI, §624, Nov. 19, 1995, 109 Stat. 502.
Pub. L. 103–329, title VI, §638, Sept. 30, 1994, 108 Stat. 2432.
Designation of Director of the Bureau of the Budget as Member of Federal Labor Relations Council
Presidential Order of December 8, 1969, provided that:
Pursuant to the provisions of section 4 of Executive Order 11491 [set out as a note under this section], I hereby designate the Director of the Bureau of the Budget [now the Office of Management and Budget] as a member of the Federal Labor Relations Council. This order of designation shall be published in the Federal Register.
Richard Nixon.
Display in Federal Buildings of Code of Ethics for Government Service
Pub. L. 96–303, July 3, 1980, 94 Stat. 855, which provided that each agency, under regulations prescribed by Administrator of General Services Administration, display in appropriate areas of Federal buildings copies of the Code of Ethics for Government Service, authorized publication and distribution of such Code, and set forth text of the Code of Ethics for Government Service, was repealed by Pub. L. 104–179, §4(a), Aug. 6, 1996, 110 Stat. 1566.
Agency Acceptance of Donations for Federal Employees
Pub. L. 102–368, title XI, §901, Sept. 23, 1992, 106 Stat. 1156, effective through Sept. 30, 1993, authorized Federal agencies to accept gifts of property, money, or anything else of value from non-Federal sources for extraordinary and unanticipated expenses incurred by agency employees in their personal capacity within areas designated as disaster areas pursuant to President’s declaration of a disaster resulting from Hurricane Andrew, Typhoon Omar, and Hurricane Iniki, directed agencies to establish written procedures to implement this program, and authorized agencies to accept gifts designated for individual employees.
Restriction on Availability of Funds To Administer or Implement Drug Testing
Pub. L. 100–71, title V, §503, July 11, 1987, 101 Stat. 468, as amended by Pub. L. 102–54, §13(b)(6), June 13, 1991, 105 Stat. 274, provided:
“(a)(1) Except as provided in subsection (b) or (c), none of the funds appropriated or made available by this Act, or any other Act, with respect to any fiscal year, shall be available to administer or implement any drug testing pursuant to Executive Order Numbered 12564 (dated September 15, 1986) [set out as a note below], or any subsequent order, unless and until—
“(A) the Secretary of Health and Human Services certifies in writing to the Committees on Appropriations of the House of Representatives and the Senate, and other appropriate committees of the Congress, that—
“(i) each agency has developed a plan for achieving a drug-free workplace in accordance with Executive Order Numbered 12564 and applicable provisions of law (including applicable provisions of this section);
“(ii) the Department of Health and Human Services, in addition to the scientific and technical guidelines dated February 13, 1987, and any subsequent amendments thereto, has, in accordance with paragraph (3), published mandatory guidelines which—
“(I) establish comprehensive standards for all aspects of laboratory drug testing and laboratory procedures to be applied in carrying out Executive Order Numbered 12564, including standards which require the use of the best available technology for ensuring the full reliability and accuracy of drug tests and strict procedures governing the chain of custody of specimens collected for drug testing;
“(II) specify the drugs for which Federal employees may be tested; and
“(III) establish appropriate standards and procedures for periodic review of laboratories and criteria for certification and revocation of certification of laboratories to perform drug testing in carrying out Executive Order Numbered 12564; and
“(iii) all agency drug-testing programs and plans established pursuant to Executive Order Numbered 12564 comply with applicable provisions of law, including applicable provisions of the Rehabilitation Act of 1973 (29 U.S.C. 701 et seq.), title 5 of the United States Code, and the mandatory guidelines under clause (ii);
“(B) the Secretary of Health and Human Services has submitted to the Congress, in writing, a detailed, agency-by-agency analysis relating to—
“(i) the criteria and procedures to be applied in designating employees or positions for drug testing, including the justification for such criteria and procedures;
“(ii) the position titles designated for random drug testing; and
“(iii) the nature, frequency, and type of drug testing proposed to be instituted; and
“(C) the Director of the Office of Management and Budget has submitted in writing to the Committees on Appropriations of the House of Representatives and the Senate a detailed, agency-by-agency analysis (as of the time of certification under subparagraph (A)) of the anticipated annual costs associated with carrying out Executive Order Numbered 12564 and all other requirements under this section during the 5-year period beginning on the date of the enactment of this Act [July 11, 1987].
“(2) Notwithstanding subsection (g), for purposes of this subsection, the term “agency” means—
“(A) the Executive Office of the President;
“(B) an Executive department under section 101 of title 5, United States Code;
“(C) the Environmental Protection Agency;
“(D) the General Services Administration;
“(E) the National Aeronautics and Space Administration;
“(F) the Office of Personnel Management;
“(G) the Small Business Administration;
“(H) the United States Information Agency; and
“(I) the Department of Veterans Affairs;
except that such term does not include the Department of Transportation or any other entity (or component thereof) covered by subsection (b).
“(3) Notwithstanding any provision of chapter 5 of title 5, United States Code, the mandatory guidelines to be published pursuant to subsection (a)(1)(A)(ii) shall be published and made effective exclusively according to the provisions of this paragraph. Notice of the mandatory guidelines proposed by the Secretary of Health and Human Services shall be published in the Federal Register, and interested persons shall be given not less than 60 days to submit written comments on the proposed mandatory guidelines. Following review and consideration of written comments, final mandatory guidelines shall be published in the Federal Register and shall become effective upon publication.
“(b)(1) Nothing in subsection (a) shall limit or otherwise affect the availability of funds for drug testing by—
“(A) the Department of Transportation;
“(B) Department of Energy, for employees specifically involved in the handling of nuclear weapons or nuclear materials;
“(C) any agency with an agency-wide drug-testing program in existence as of September 15, 1986; or
“(D) any component of an agency if such component had a drug-testing program in existence as of September 15, 1986.
“(2) The Departments of Transportation and Energy and any agency or component thereof with a drug-testing program in existence as of September 15, 1986—
“(A) shall be brought into full compliance with Executive Order Numbered 12564 [set out as a note below] no later than the end of the 6-month period beginning on the date of the enactment of this Act [July 11, 1987]; and
“(B) shall take such actions as may be necessary to ensure that their respective drug-testing programs or plans are brought into full compliance with the mandatory guidelines published under subsection (a)(1)(A)(ii) no later than 90 days after such mandatory guidelines take effect, except that any judicial challenge that affects such guidelines should not affect drug-testing programs or plans subject to this paragraph.
“(c) In the case of an agency (or component thereof) other than an agency as defined by subsection (a)(2) or an agency (or component thereof) covered by subsection (b), none of the funds appropriated or made available by this Act, or any other Act, with respect to any fiscal year, shall be available to administer or implement any drug testing pursuant to Executive Order Numbered 12564 [set out as a note below], or any subsequent order, unless and until—
“(1) the Secretary of Health and Human Services provides written certification with respect to that agency (or component) in accordance with clauses (i) and (iii) of subsection (a)(1)(A);
“(2) the Secretary of Health and Human Services has submitted a written, detailed analysis with respect to that agency (or component) in accordance with subsection (a)(1)(B); and
“(3) the Director of the Office of Management and Budget has submitted a written, detailed analysis with respect to that agency (or component) in accordance with subsection (a)(1)(C).
“(d) Any Federal employee who is the subject of a drug test under any program or plan shall, upon written request, have access to—
“(1) any records relating to such employee’s drug test; and
“(2) any records relating to the results of any relevant certification, review, or revocation-of-certification proceedings, as referred to in subsection (a)(1)(A)(ii)(III).
“(e) The results of a drug test of a Federal employee may not be disclosed without the prior written consent of such employee, unless the disclosure would be—
“(1) to the employee’s medical review official (as defined in the scientific and technical guidelines referred to in subsection (a)(1)(A)(ii));
“(2) to the administrator of any Employee Assistance Program in which the employee is receiving counseling or treatment or is otherwise participating;
“(3) to any supervisory or management official within the employee’s agency having authority to take the adverse personnel action against such employee; or
“(4) pursuant to the order of a court of competent jurisdiction where required by the United States Government to defend against any challenge against any adverse personnel action.
“(f) [Terminated, effective May 15, 2000, see section 3003 of Pub. L. 104–66, as amended, set out as a note under section 1113 of Title 31, Money and Finance, and page 151 of House Document No. 103–7.]
“(g) For purposes of this section, the terms ‘agency’ and ‘Employee Assistance Program’ each has the meaning given such term under section 7(b) of Executive Order Numbered 12564 [set out as a note below], as in effect on September 15, 1986.”
[For abolition of United States Information Agency (other than Broadcasting Board of Governors and International Broadcasting Bureau), transfer of functions, and treatment of references thereto, see sections 6531, 6532, and 6551 of Title 22, Foreign Relations and Intercourse.]
Limitation on Gratuities at Naval Shipbuilding Ceremonies
Pub. L. 99–145, title XIV, §1461, Nov. 8, 1985, 99 Stat. 765, provided that:
“(a) General Rule.—A Federal officer, employee, or Member of Congress may not accept, directly or indirectly, any tangible thing of value as a gift or memento in connection with a ceremony to mark the completion of a naval shipbuilding milestone.
“(b) Exclusion.—Subsection (a) does not apply to a gift or memento that has a value of less than $100.
“(c) Definitions.—For purposes of this section, the terms ‘officer’, ’employee’, and ‘Member of Congress’ have the meanings given those terms in sections 2104, 2105, and 2106, respectively, of title 5, United States Code.”
Executive Order No. 9845
Ex. Ord. No. 9845, Apr. 28, 1947, 12 F.R. 2799, which permitted Bureau of Reclamation employees to accept appointments as constables or deputy sheriffs under state or territorial laws, was revoked by Ex. Ord. No. 11408, Apr. 25, 1968, 33 F.R. 6459.
Ex. Ord. No. 12564. Drug-Free Federal Workplace
Ex. Ord. No. 12564, Sept. 15, 1986, 51 F.R. 32889, provided:
I, RONALD REAGAN, President of the United States of America, find that:
Drug use is having serious adverse effects upon a significant proportion of the national work force and results in billions of dollars of lost productivity each year;
The Federal government, as an employer, is concerned with the well-being of its employees, the successful accomplishment of agency missions, and the need to maintain employee productivity;
The Federal government, as the largest employer in the Nation, can and should show the way towards achieving drug-free workplaces through a program designed to offer drug users a helping hand and, at the same time, demonstrating to drug users and potential drug users that drugs will not be tolerated in the Federal workplace;
The profits from illegal drugs provide the single greatest source of income for organized crime, fuel violent street crime, and otherwise contribute to the breakdown of our society;
The use of illegal drugs, on or off duty, by Federal employees is inconsistent not only with the law-abiding behavior expected of all citizens, but also with the special trust placed in such employees as servants of the public;
Federal employees who use illegal drugs, on or off duty, tend to be less productive, less reliable, and prone to greater absenteeism than their fellow employees who do not use illegal drugs;
The use of illegal drugs, on or off duty, by Federal employees impairs the efficiency of Federal departments and agencies, undermines public confidence in them, and makes it more difficult for other employees who do not use illegal drugs to perform their jobs effectively. The use of illegal drugs, on or off duty, by Federal employees also can pose a serious health and safety threat to members of the public and to other Federal employees;
The use of illegal drugs, on or off duty, by Federal employees in certain positions evidences less than the complete reliability, stability, and good judgment that is consistent with access to sensitive information and creates the possibility of coercion, influence, and irresponsible action under pressure that may pose a serious risk to national security, the public safety, and the effective enforcement of the law; and
Federal employees who use illegal drugs must themselves be primarily responsible for changing their behavior and, if necessary, begin the process of rehabilitating themselves.
By the authority vested in me as President by the Constitution and laws of the United States of America, including section 3301(2) of Title 5 of the United States Code, section 7301 of Title 5 of the United States Code, section 290ee–1 of Title 42 of the United States Code, deeming such action in the best interests of national security, public health and safety, law enforcement and the efficiency of the Federal service, and in order to establish standards and procedures to ensure fairness in achieving a drug-free Federal workplace and to protect the privacy of Federal employees, it is hereby ordered as follows:
Section 1. Drug-Free Workplace. (a) Federal employees are required to refrain from the use of illegal drugs.
(b) The use of illegal drugs by Federal employees, whether on duty or off duty, is contrary to the efficiency of the service.
(c) Persons who use illegal drugs are not suitable for Federal employment.
Sec. 2. Agency Responsibilities. (a) The head of each Executive agency shall develop a plan for achieving the objective of a drug-free workplace with due consideration of the rights of the government, the employee, and the general public.
(b) Each agency plan shall include:
(1) A statement of policy setting forth the agency’s expectations regarding drug use and the action to be anticipated in response to identified drug use;
(2) Employee Assistance Programs emphasizing high level direction, education, counseling, referral to rehabilitation, and coordination with available community resources;
(3) Supervisory training to assist in identifying and addressing illegal drug use by agency employees;
(4) Provision for self-referrals as well as supervisory referrals to treatment with maximum respect for individual confidentiality consistent with safety and security issues; and
(5) Provision for identifying illegal drug users, including testing on a controlled and carefully monitored basis in accordance with this Order.
Sec. 3. Drug Testing Programs. (a) The head of each Executive agency shall establish a program to test for the use of illegal drugs by employees in sensitive positions. The extent to which such employees are tested and the criteria for such testing shall be determined by the head of each agency, based upon the nature of the agency’s mission and its employees’ duties, the efficient use of agency resources, and the danger to the public health and safety or national security that could result from the failure of an employee adequately to discharge his or her position.
(b) The head of each Executive agency shall establish a program for voluntary employee drug testing.
(c) In addition to the testing authorized in subsections (a) and (b) of this section, the head of each Executive agency is authorized to test an employee for illegal drug use under the following circumstances:
(1) When there is a reasonable suspicion that any employee uses illegal drugs;
(2) In an examination authorized by the agency regarding an accident or unsafe practice; or
(3) As part of or as a follow-up to counseling or rehabilitation for illegal drug use through an Employee Assistance Program.
(d) The head of each Executive agency is authorized to test any applicant for illegal drug use.
Sec. 4. Drug Testing Procedures. (a) Sixty days prior to the implementation of a drug testing program pursuant to this Order, agencies shall notify employees that testing for use of illegal drugs is to be conducted and that they may seek counseling and rehabilitation and inform them of the procedures for obtaining such assistance through the agency’s Employee Assistance Program. Agency drug testing programs already ongoing are exempted from the 60-day notice requirement. Agencies may take action under section 3(c) of this Order without reference to the 60-day notice period.
(b) Before conducting a drug test, the agency shall inform the employee to be tested of the opportunity to submit medical documentation that may support a legitimate use for a specific drug.
(c) Drug testing programs shall contain procedures for timely submission of requests for retention of records and specimens; procedures for retesting; and procedures, consistent with applicable law, to protect the confidentiality of test results and related medical and rehabilitation records. Procedures for providing urine specimens must allow individual privacy, unless the agency has reason to believe that a particular individual may alter or substitute the specimen to be provided.
(d) The Secretary of Health and Human Services is authorized to promulgate scientific and technical guidelines for drug testing programs, and agencies shall conduct their drug testing programs in accordance with these guidelines once promulgated.
Sec. 5. Personnel Actions. (a) Agencies shall, in addition to any appropriate personnel actions, refer any employee who is found to use illegal drugs to an Employee Assistance Program for assessment, counseling, and referral for treatment or rehabilitation as appropriate.
(b) Agencies shall initiate action to discipline any employee who is found to use illegal drugs, provided that such action is not required for an employee who:
(1) Voluntarily identifies himself as a user of illegal drugs or who volunteers for drug testing pursuant to section 3(b) of this Order, prior to being identified through other means;
(2) Obtains counseling or rehabilitation through an Employee Assistance Program; and
(3) Thereafter refrains from using illegal drugs.
(c) Agencies shall not allow any employee to remain on duty in a sensitive position who is found to use illegal drugs, prior to successful completion of rehabilitation through an Employee Assistance Program. However, as part of a rehabilitation or counseling program, the head of an Executive agency may, in his or her discretion, allow an employee to return to duty in a sensitive position if it is determined that this action would not pose a danger to public health or safety or the national security.
(d) Agencies shall initiate action to remove from the service any employee who is found to use illegal drugs and:
(1) Refuses to obtain counseling or rehabilitation through an Employee Assistance Program; or
(2) Does not thereafter refrain from using illegal drugs.
(e) The results of a drug test and information developed by the agency in the course of the drug testing of the employee may be considered in processing any adverse action against the employee or for other administrative purposes. Preliminary test results may not be used in an administrative proceeding unless they are confirmed by a second analysis of the same sample or unless the employee confirms the accuracy of the initial test by admitting the use of illegal drugs.
(f) The determination of an agency that an employee uses illegal drugs can be made on the basis of any appropriate evidence, including direct observation, a criminal conviction, administrative inquiry, or the results of an authorized testing program. Positive drug test results may be rebutted by other evidence that an employee has not used illegal drugs.
(g) Any action to discipline an employee who is using illegal drugs (including removal from the service, if appropriate) shall be taken in compliance with otherwise applicable procedures, including the Civil Service Reform Act [Pub. L. 95–454, see Tables for classification].
(h) Drug testing shall not be conducted pursuant to this Order for the purpose of gathering evidence for use in criminal proceedings. Agencies are not required to report to the Attorney General for investigation or prosecution any information, allegation, or evidence relating to violations of Title 21 of the United States Code received as a result of the operation of drug testing programs established pursuant to this Order.
Sec. 6. Coordination of Agency Programs. (a) The Director of the Office of Personnel Management shall:
(1) Issue government-wide guidance to agencies on the implementation of the terms of this Order;
(2) Ensure that appropriate coverage for drug abuse is maintained for employees and their families under the Federal Employees Health Benefits Program;
(3) Develop a model Employee Assistance Program for Federal agencies and assist the agencies in putting programs in place;
(4) In consultation with the Secretary of Health and Human Services, develop and improve training programs for Federal supervisors and managers on illegal drug use; and
(5) In cooperation with the Secretary of Health and Human Services and heads of Executive agencies, mount an intensive drug awareness campaign throughout the Federal work force.
(b) The Attorney General shall render legal advice regarding the implementation of this Order and shall be consulted with regard to all guidelines, regulations, and policies proposed to be adopted pursuant to this Order.
(c) Nothing in this Order shall be deemed to limit the authorities of the Director of Central Intelligence under the National Security Act of 1947, as amended [50 U.S.C. 3001 et seq.], or the statutory authorities of the National Security Agency or the Defense Intelligence Agency. Implementation of this Order within the Intelligence Community, as defined in Executive Order No. 12333 [50 U.S.C. 3001 note], shall be subject to the approval of the head of the affected agency.
Sec. 7. Definitions.(a) This Order applies to all agencies of the Executive Branch.
(b) For purposes of this Order, the term “agency” means an Executive agency, as defined in 5 U.S.C. 105; the Uniformed Services, as defined in 5 U.S.C. 2101(3) (but excluding the armed forces as defined by 5 U.S.C. 2101(2)); or any other employing unit or authority of the Federal government, except the United States Postal Service, the Postal Rate Commission, and employing units or authorities in the Judicial and Legislative Branches.
(c) For purposes of this Order, the term “illegal drugs” means a controlled substance included in Schedule I or II, as defined by section 802(6) of Title 21 of the United States Code, the possession of which is unlawful under chapter 13 of that Title. The term “illegal drugs” does not mean the use of a controlled substance pursuant to a valid prescription or other uses authorized by law.
(d) For purposes of this Order, the term “employee in a sensitive position” refers to:
(1) An employee in a position that an agency head designates Special Sensitive, Critical-Sensitive, or Noncritical-Sensitive under Chapter 731 of the Federal Personnel Manual or an employee in a position that an agency head designates as sensitive in accordance with Executive Order No. 10450, as amended [5 U.S.C. 7311 note];
(2) An employee who has been granted access to classified information or may be granted access to classified information pursuant to a determination of trustworthiness by an agency head under Section 4 of [former] Executive Order No. 12356;
(3) Individuals serving under Presidential appointments;
(4) Law enforcement officers as defined in 5 U.S.C. 8331(20); and
(5) Other positions that the agency head determines involve law enforcement, national security, the protection of life and property, public health or safety, or other functions requiring a high degree of trust and confidence.
(e) For purposes of this Order, the term “employee” means all persons appointed in the Civil Service as described in 5 U.S.C. 2105 (but excluding persons appointed in the armed services as defined in 5 U.S.C. 2102(2)).
(f) For purposes of this Order, the term “Employee Assistance Program” means agency-based counseling programs that offer assessment, short-term counseling, and referral services to employees for a wide range of drug, alcohol, and mental health programs that affect employee job performance. Employee Assistance Programs are responsible for referring drug-using employees for rehabilitation and for monitoring employees’ progress while in treatment.
Sec. 8. Effective Date. This Order is effective immediately.
Ronald Reagan.
[Reference to the Director of Central Intelligence or the Director of the Central Intelligence Agency in the Director’s capacity as the head of the intelligence community deemed to be a reference to the Director of National Intelligence. Reference to the Director of Central Intelligence or the Director of the Central Intelligence Agency in the Director’s capacity as the head of the Central Intelligence Agency deemed to be a reference to the Director of the Central Intelligence Agency. See section 1081(a), (b) of Pub. L. 108–458, set out as a note under section 3001 of Title 50, War and National Defense.]
Ex. Ord. No. 12674. Principles of Ethical Conduct for Government Officers and Employees
Ex. Ord. No. 12674, Apr. 12, 1989, 54 F.R. 15159, as amended by Ex. Ord. No. 12731, Oct. 17, 1990, 55 F.R. 42547, provided:
By virtue of the authority vested in me as President by the Constitution and the laws of the United States of America, and in order to establish fair and exacting standards of ethical conduct for all executive branch employees, it is hereby ordered as follows:
Part I—Principles of Ethical Conduct
Section 101. Principles of Ethical Conduct. To ensure that every citizen can have complete confidence in the integrity of the Federal Government, each Federal employee shall respect and adhere to the fundamental principles of ethical service as implemented in regulations promulgated under sections 201 and 301 of this order:
(a) Public service is a public trust, requiring employees to place loyalty to the Constitution, the laws, and ethical principles above private gain.
(b) Employees shall not hold financial interests that conflict with the conscientious performance of duty.
(c) Employees shall not engage in financial transactions using nonpublic Government information or allow the improper use of such information to further any private interest.
(d) An employee shall not, except pursuant to such reasonable exceptions as are provided by regulation, solicit or accept any gift or other item of monetary value from any person or entity seeking official action from, doing business with, or conducting activities regulated by the employee’s agency, or whose interests may be substantially affected by the performance or nonperformance of the employee’s duties.
(e) Employees shall put forth honest effort in the performance of their duties.
(f) Employees shall make no unauthorized commitments or promises of any kind purporting to bind the Government.
(g) Employees shall not use public office for private gain.
(h) Employees shall act impartially and not give preferential treatment to any private organization or individual.
(i) Employees shall protect and conserve Federal property and shall not use it for other than authorized activities.
(j) Employees shall not engage in outside employment or activities, including seeking or negotiating for employment, that conflict with official Government duties and responsibilities.
(k) Employees shall disclose waste, fraud, abuse, and corruption to appropriate authorities.
(l) Employees shall satisfy in good faith their obligations as citizens, including all just financial obligations, especially those—such as Federal, State, or local taxes—that are imposed by law.
(m) Employees shall adhere to all laws and regulations that provide equal opportunity for all Americans regardless of race, color, religion, sex, national origin, age, or handicap.
(n) Employees shall endeavor to avoid any actions creating the appearance that they are violating the law or the ethical standards promulgated pursuant to this order.
Sec. 102. Limitations on Outside Earned Income.
(a) No employee who is appointed by the President to a full-time noncareer position in the executive branch (including full-time noncareer employees in the White House Office, the Office of Policy Development, and the Office of Cabinet Affairs), shall receive any earned income for any outside employment or activity performed during that Presidential appointment.
(b) The prohibition set forth in subsection (a) shall not apply to any full-time noncareer employees employed pursuant to 3 U.S.C. 105 and 3 U.S.C. 107(a) at salaries below the minimum rate of basic pay then paid for GS–9 of the General Schedule. Any outside employment must comply with relevant agency standards of conduct, including any requirements for approval of outside employment.
Part II—Office of Government Ethics Authority
Sec. 201. The Office of Government Ethics. The Office of Government Ethics shall be responsible for administering this order by:
(a) Promulgating, in consultation with the Attorney General and the Office of Personnel Management, regulations that establish a single, comprehensive, and clear set of executive-branch standards of conduct that shall be objective, reasonable, and enforceable.
(b) Developing, disseminating, and periodically updating an ethics manual for employees of the executive branch describing the applicable statutes, rules, decisions, and policies.
(c) Promulgating, with the concurrence of the Attorney General, regulations interpreting the provisions of the post-employment statute, section 207 of title 18, United States Code; the general conflict-of-interest statute, section 208 of title 18, United States Code; and the statute prohibiting supplementation of salaries, section 209 of title 18, United States Code.
(d) Promulgating, in consultation with the Attorney General and the Office of Personnel Management, regulations establishing a system of nonpublic (confidential) financial disclosure by executive branch employees to complement the system of public disclosure under the Ethics in Government Act of 1978 [Pub. L. 95–521, see Tables for classification]. Such regulations shall include criteria to guide agencies in determining which employees shall submit these reports.
(e) Ensuring that any implementing regulations issued by agencies under this order are consistent with and promulgated in accordance with this order.
Sec. 202. Executive Office of the President. In that the agencies within the Executive Office of the President (EOP) currently exercise functions that are not distinct and separate from each other within the meaning and for the purposes of section 207(e) of title 18, United States Code, those agencies shall be treated as one agency under section 207(c) of title 18, United States Code.
Part III—Agency Responsibilities
Sec. 301. Agency Responsibilities. Each agency head is directed to:
(a) Supplement, as necessary and appropriate, the comprehensive executive branch-wide regulations of the Office of Government Ethics, with regulations of special applicability to the particular functions and activities of that agency. Any supplementary agency regulations shall be prepared as addenda to the branch-wide regulations and promulgated jointly with the Office of Government Ethics, at the agency’s expense, for inclusion in Title 5 of the Code of Federal Regulations.
(b) Ensure the review by all employees of this order and regulations promulgated pursuant to the order.
(c) Coordinate with the Office of Government Ethics in developing annual agency ethics training plans. Such training shall include mandatory annual briefings on ethics and standards of conduct for all employees appointed by the President, all employees in the Executive Office of the President, all officials required to file public or nonpublic financial disclosure reports, all employees who are contracting officers and procurement officials, and any other employees designated by the agency head.
(d) Where practicable, consult formally or informally with the Office of Government Ethics prior to granting any exemption under section 208 of title 18, United States Code, and provide the Director of the Office of Government Ethics a copy of any exemption granted.
(e) Ensure that the rank, responsibilities, authority, staffing, and resources of the Designated Agency Ethics Official are sufficient to ensure the effectiveness of the agency ethics program. Support should include the provision of a separate budget line item for ethics activities, where practicable.
Part IV—Delegations of Authority
Sec. 401. Delegations to Agency Heads. Except in the case of the head of an agency, the authority of the President under sections 203(d), 205(e), and 208(b) of title 18, United States Code, to grant exemptions or approvals to individuals, is delegated to the head of the agency in which an individual requiring an exemption or approval is employed or to which the individual (or the committee, commission, board, or similar group employing the individual) is attached for purposes of administration.
Sec. 402. Delegations to the Counsel to the President.
(a) Except as provided in section 401, the authority of the President under sections 203(d), 205(e), and 208(b) of title 18, United States Code, to grant exemptions or approvals for Presidential appointees to committees, commissions, boards, or similar groups established by the President is delegated to the Counsel to the President.
(b) The authority of the President under sections 203(d), 205(e), and 208(b) of title 18, United States Code, to grant exemptions or approvals for individuals appointed pursuant to 3 U.S.C. 105 and 3 U.S.C. 107(a), is delegated to the Counsel to the President.
Sec. 403. Delegation Regarding Civil Service. The Office of Personnel Management and the Office of Government Ethics, as appropriate, are delegated the authority vested in the President by 5 U.S.C. 7301 to establish general regulations for the implementation of this Executive order.
Part V—General Provisions
Sec. 501. Revocations. The following Executive orders are hereby revoked:
(a) Executive Order No. 11222 of May 8, 1965.
(b) Executive Order No. 12565 of September 25, 1986.
Sec. 502. Savings Provision.
(a) All actions already taken by the President or by his delegates concerning matters affected by this order and in force when this order is issued, including any regulations issued under Executive Order 11222, Executive Order 12565, or statutory authority, shall, except as they are irreconcilable with the provisions of this order or terminate by operation of law or by Presidential action, remain in effect until properly amended, modified, or revoked pursuant to the authority conferred by this order or any regulations promulgated under this order. Notwithstanding anything in section 102 of this order, employees may carry out preexisting contractual obligations entered into before April 12, 1989.
(b) Financial reports filed in confidence (pursuant to the authority of Executive Order No. 11222, 5 C.F.R. Part 735, and individual agency regulations) shall continue to be held in confidence.
Sec. 503. Definitions. For purposes of this order, the term:
(a) “Contracting officers and procurement officials” means all such officers and officials as defined in the Office of Federal Procurement Policy Act Amendments of 1988 [see 41 U.S.C. 2101].
(b) “Employee” means any officer or employee of an agency, including a special Government employee.
(c) “Agency” means any executive agency as defined in 5 U.S.C. 105, including any executive department as defined in 5 U.S.C. 101, Government corporation as defined in 5 U.S.C. 103, or an independent establishment in the executive branch as defined in 5 U.S.C. 104 (other than the General Accounting Office [now Government Accountability Office]), and the United States Postal Service and Postal Rate Commission.
(d) “Head of an agency” means, in the case of an agency headed by more than one person, the chair or comparable member of such agency.
(e) “Special Government employee” means a special Government employee as defined in 18 U.S.C. 202(a).
Sec. 504. Judicial Review. This order is intended only to improve the internal management of the executive branch and is not intended to create any right or benefit, substantive or procedural, enforceable at law by a party against the United States, its agencies, its officers, or any person.
Executive Order No. 12820
Ex. Ord. No. 12820, Nov. 5, 1992, 57 F.R. 53429, which facilitated Federal employees’ participation in community service activities, was revoked by Ex. Ord. No. 13401, §3(b), Apr. 27, 2006, 71 F.R. 25738.
Ex. Ord. No. 13058. Protecting Federal Employees and the Public From Exposure to Tobacco Smoke in the Federal Workplace
Ex. Ord. No. 13058, Aug. 9, 1997, 62 F.R. 43451, provided:
By the authority vested in me as President by the Constitution and the laws of the United States of America and in order to protect Federal Government employees and members of the public from exposure to tobacco smoke in the Federal workplace, it is hereby ordered as follows:
Section 1. Policy. It is the policy of the executive branch to establish a smoke-free environment for Federal employees and members of the public visiting or using Federal facilities. The smoking of tobacco products is thus prohibited in all interior space owned, rented, or leased by the executive branch of the Federal Government, and in any outdoor areas under executive branch control in front of air intake ducts.
Sec. 2. Exceptions. The general policy established by this order is subject to the following exceptions: (a) The order does not apply in designated smoking areas that are enclosed and exhausted directly to the outside and away from air intake ducts, and are maintained under negative pressure (with respect to surrounding spaces) sufficient to contain tobacco smoke within the designated area. Agency officials shall not require workers to enter such areas during business hours while smoking is ongoing.
(b) The order does not extend to any residential accommodation for persons voluntarily or involuntarily residing, on a temporary or long-term basis, in a building owned, leased, or rented by the Federal Government.
(c) The order does not extend to those portions of federally owned buildings leased, rented, or otherwise provided in their entirety to nonfederal parties.
(d) The order does not extend to places of employment in the private sector or in other nonfederal governmental units that serve as the permanent or intermittent duty station of one or more Federal employees.
(e) The head of any agency may establish limited and narrow exceptions that are necessary to accomplish agency missions. Such exception shall be in writing, approved by the agency head, and to the fullest extent possible provide protection of nonsmokers from exposure to environmental tobacco smoke. Authority to establish such exceptions may not be delegated.
Sec. 3. Other Locations. The heads of agencies shall evaluate the need to restrict smoking at doorways and in courtyards under executive branch control in order to protect workers and visitors from environmental tobacco smoke, and may restrict smoking in these areas in light of this evaluation.
Sec. 4. Smoking Cessation Programs. The heads of agencies are encouraged to use existing authority to establish programs designed to help employees stop smoking.
Sec. 5. Responsibility for Implementation. The heads of agencies are responsible for implementing and ensuring compliance with the provisions of this order. “Agency” as used in this order means an Executive agency, as defined in 5 U.S.C. 105, and includes any employing unit or authority of the Federal Government, other than those of the legislative and judicial branches. Independent agencies are encouraged to comply with the provisions of this order.
Sec. 6. Phase-In of Implementation. Implementation of the policy set forth in this order shall be achieved no later than 1 year after the date of this order. This 1 year phase-in period is designed to establish a fixed but reasonable time for implementing this policy. Agency heads are directed during this period to inform all employees and visitors to executive branch facilities about the requirements of this order, inform their employees of the health risks of exposure to environmental tobacco smoke, and undertake related activities as necessary.
Sec. 7. Consistency with Other Laws. The provisions of this order shall be implemented consistent with applicable law, including the Federal Service Labor-Management Relations Act (5 U.S.C. 7101 et seq.) and the National Labor Relations Act (29 U.S.C. 151 et seq.)[.] Provisions of existing collective bargaining agreements shall be honored and agencies shall consult with employee labor representatives about the implementation of this order. Nothing herein shall be construed to impair or alter the powers and duties of Federal agencies established under law. Nothing herein shall be construed to replace any agency policy currently in effect, if such policy is legally established, in writing, and consistent with the terms of this order. Agencies shall review their current policy to confirm that agency policy comports with this order, and policy found not in compliance shall be revised to comply with the terms of this order.
Sec. 8. Cause of Action. This order does not create any right to administrative or judicial review, or any other right or benefit, substantive or procedural, enforceable by a party against the United States, its agencies or instrumentalities, its officers or employees, or any other person or affect in any way the liability of the executive branch under the Federal Tort Claims Act [see Short Title note set out under section 2671 of Title 28, Judiciary and Judicial Procedure].
Sec. 9. Construction. Nothing in this order shall limit an agency head from establishing more protective policies on smoking in the Federal workplace for employees and members of the public visiting or using Federal facilities.
William J. Clinton.
Ex. Ord. No. 13401. Responsibilities of Federal Departments and Agencies With Respect to Volunteer Community Service
Ex. Ord. No. 13401, Apr. 27, 2006, 71 F.R. 25737, provided:
By the authority vested in me as President by the Constitution and the laws of the United States of America and in order to help ensure that the Federal Government supports and encourages volunteer community service, it is hereby ordered as follows:
Section 1. Designation of a Liaison for Volunteer Community Service. (a) The head of each agency shall, within 20 days after the date of this order, designate an officer or employee of such agency compensated at a level at or above the minimum level of pay of a member of the Senior Executive Service to serve under the authority of the head of the agency as the agency liaison for volunteer community service (Liaison).
(b) The Liaison in each agency shall promote and support community service on a voluntary basis among Federal employees, including those approaching retirement; promote the use of skilled volunteers; and facilitate public recognition for volunteer community service.
(c) The head of each agency shall prescribe arrangements within the agency for support and supervision of the Liaison that ensure high priority and substantial visibility for the function of the Liaison within the agency under this order.
(d) Each executive agency shall provide its Liaison with appropriate administrative support and other resources to meet the responsibilities of the Liaison under this order.
Sec. 2. Goals and Responsibilities of the Liaison. The Liaison shall foster within the Liaison’s agency a culture of taking responsibility, service to others, and good citizenship. Toward that end, the Liaison shall:
(a) identify, catalog, and review all activities of the agency that relate to volunteer community service, including, but not limited to rules, orders, grant programs, external relations, and other policies and practices, and make such recommendations to the head of the agency for adjustments as may be appropriate;
(b) actively work with USA Freedom Corps to promote volunteer community service among agency employees by providing information about community service opportunities;
(c) coordinate within the agency actions to facilitate public recognition for volunteer community service;
(d) promote, expand, and enhance skilled volunteer community service opportunities;
(e) work with the USA Freedom Corps and the Director of the Office of Personnel Management (OPM) to consider any appropriate changes in agency policies or practices that are not currently consistent with OPM guidance;
(f) coordinate the awarding of the President’s Volunteer Service Award to recognize outstanding volunteer service by employees within the agency; and
(g) act as a liaison with the USA Freedom Corps.
Sec. 3. Administrative Provisions. (a) The USA Freedom Corps shall provide such information with respect to volunteer community service programs and activities and such advice and assistance as may be required by agencies in performing their functions under this order.
(b) Executive Order 12820 of November 5, 1992, is revoked.
(c) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(d) As used in this order:
(i) “agency” has the meaning of “executive agency” as defined in section 105 of title 5, United States Code; and
(ii) “USA Freedom Corps” means the Director of the USA Freedom Corps Office established by section 4 of Executive Order 13254 of January 29, 2002.
Sec. 4. Reporting Provisions. (a) Not later than 180 days from the date of this order and annually thereafter, each agency Liaison shall prepare and submit a report to the USA Freedom Corps that includes a description of the agency’s activities in performing its functions under this order.
(b) A Liaison’s first report under subsection (a) shall include annual performance indicators and measurable objectives for agency action approved by the head of the agency. Each report filed thereafter under subsection (a) shall measure the agency’s performance against the indicators and objectives approved by the head of the agency.
Sec. 5. Judicial Review. This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable by any party at law or in equity against the United States, its departments, agencies, entities, officers, employees, or agents, or any other person.
George W. Bush.
Ex. Ord. No. 13488. Granting Reciprocity on Excepted Service and Federal Contractor Employee Fitness and Reinvestigating Individuals in Positions of Public Trust
Ex. Ord. No. 13488, Jan. 16, 2009, 74 F.R. 4111, as amended by Ex. Ord. No. 13764, §2, Jan. 17, 2017, 82 F.R. 8116, provided:
By the authority vested in me as President by the Constitution and the laws of the United States of America, including sections 1104(a)(1), 3301, and 7301 of title 5, United States Code, and in order to simplify and streamline the system of Federal Government personnel investigative and adjudicative processes to make them more efficient and effective, it is hereby ordered as follows:
Section 1. Policy. (a) When agencies conduct fitness determinations, prior favorable fitness or suitability determinations shall be granted reciprocal recognition, to the extent practicable.
(b) It is necessary to reinvestigate individuals in positions of public trust in order to ensure that they remain suitable for continued employment.
Sec. 2. [Definitions. For the purposes of this order:]
(a) “Agency” means an executive agency as defined in section 105 of title 5, United States Code, but does not include the Government Accountability Office.
(b) “Contractor employee” means an individual who performs work for or on behalf of any agency under a contract and who, in order to perform the work specified under the contract, will require access to space, information, information technology systems, staff, or other assets of the Federal Government, and who could, by the nature of his or her access or duties, adversely affect the integrity or efficiency of the Government. Such contracts, include, but are not limited to:
(i) personal services contracts;
(ii) contracts between any non-Federal entity and any agency; and
(iii) sub-contracts between any non-Federal entity and another non-Federal entity to perform work related to the primary contract with the agency.
(c) “Excepted service” has the meaning provided in section 2103 of title 5, United States Code, but does not include those positions in any element of the intelligence community as defined in the National Security Act of 1947, as amended, to the extent they are not otherwise subject to Office of Personnel Management appointing authorities.
(d) “Fitness” is the level of character and conduct determined necessary for an individual to perform work for or on behalf of a Federal agency as an employee in the excepted service (other than a position subject to suitability), as a contractor employee, or as a nonappropriated fund employee.
(e) “Fitness determination” means a decision by an agency that an individual has or does not have the required level of character and conduct necessary to perform work for or on behalf of a Federal agency as an employee in the excepted service (other than a position subject to suitability), as a contractor employee, or as a nonappropriated fund employee. A favorable fitness determination is not a decision to appoint or contract with an individual.
(f) “Nonappropriated fund employee” means an employee paid from nonappropriated funds of an instrumentality of the United States under the jurisdiction of the Armed Forces conducted for the comfort, pleasure, contentment, and mental and physical improvement of personnel of the Armed Forces as described in section 2105 of title 5, United States Code.
(g) “Position of Public Trust” has the meaning provided in 5 CFR Part 731.
(h) “Suitability” has the meaning and coverage provided in 5 CFR Part 731.
Sec. 3. OPM and Agency Authority.
(a) Adjudications for determining fitness for contractual or nonappropriated fund employment. While the Office of Personnel Management establishes the minimum adjudicative criteria for suitability and fitness determinations for employment in the civil service pursuant to the Civil Service Rules, the heads of agencies retain the discretion to establish adjudicative criteria for determining fitness to perform work as a contractor employee or as a nonappropriated fund employee. Such discretion shall be exercised with due regard to the regulations and guidance prescribed by the Office of Personnel Management for the civil service and, for contractual work, subject to applicable regulations and directives of the Office of Management and Budget.
(b) Investigations for determining fitness for contractual or nonappropriated fund employment. Contractor employee fitness or nonappropriated fund employee fitness is subject to the same position designation requirements and investigative standards, policies, and procedures as fitness determinations for civil service employees, as prescribed by the Office of Personnel Management under the Civil Service Rules.
(c) Reciprocity. Fitness determinations and investigations for fitness determinations for contractor employees and for nonappropriated fund employees are subject to the same reciprocity requirements as those for employment in the civil service, as prescribed by the Office of Personnel Management under the Civil Service Rules.
Sec. 4. Reinvestigation of Individuals in Positions of Public Trust. Individuals in positions of public trust shall be subject to reinvestigation under standards (including but not limited to the frequency of such reinvestigation) as determined by the Director of the Office of Personnel Management, to ensure their suitability for continued employment.
Sec. 5. Responsibilities. (a) An agency shall report to the Office of Personnel Management the nature and results of the background investigation and fitness determination (or later changes to that determination) made on an individual, to the extent consistent with law.
(b) The Director of the Office of Personnel Management is delegated authority to implement this order, including the authority to issue regulations and guidance governing suitability, or guidance related to fitness, as the Director determines appropriate.
Sec. 6. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:
(i) authority granted by law to a department or agency, or the head thereof; or
(ii) functions of the Director of the Office of Management and Budget relating to budget, administrative, or legislative proposals.
(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) This order shall not suspend, impede, or otherwise affect Executive Order 10450 of April 27, 1953, as amended, or Executive Order 13467 of June 30, 2008;
(d) This order is intended only to improve the internal management of the executive branch and is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its agencies, instrumentalities, or entities, its officers, employees or agents, or any other person.
Sec. 7. Effective Date and Applicability. This order is effective upon issuance and is applicable to individuals newly appointed to excepted service positions or hired as contractor employees beginning 90 days from the effective date of this order.
Ex. Ord. No. 13770. Ethics Commitments by Executive Branch Appointees
Ex. Ord. No. 13770, Jan. 28, 2017, 82 F.R. 9333, provided:
By the authority vested in me as President of the United States by the Constitution and the laws of the United States of America, including section 301 of title 3, United States Code, and sections 3301 and 7301 of title 5, United States Code, it is hereby ordered as follows:
Section 1. Ethics Pledge. Every appointee in every executive agency appointed on or after January 20, 2017, shall sign, and upon signing shall be contractually committed to, the following pledge upon becoming an appointee:
“As a condition, and in consideration, of my employment in the United States Government in an appointee position invested with the public trust, I commit myself to the following obligations, which I understand are binding on me and are enforceable under law:
“1. I will not, within 5 years after the termination of my employment as an appointee in any executive agency in which I am appointed to serve, engage in lobbying activities with respect to that agency.
“2. If, upon my departure from the Government, I am covered by the post-employment restrictions on communicating with employees of my former executive agency set forth in section 207(c) of title 18, United States Code, I agree that I will abide by those restrictions.
“3. In addition to abiding by the limitations of paragraphs 1 and 2, I also agree, upon leaving Government service, not to engage in lobbying activities with respect to any covered executive branch official or non-career Senior Executive Service appointee for the remainder of the Administration.
“4. I will not, at any time after the termination of my employment in the United States Government, engage in any activity on behalf of any foreign government or foreign political party which, were it undertaken on January 20, 2017, would require me to register under the Foreign Agents Registration Act of 1938, as amended.
“5. I will not accept gifts from registered lobbyists or lobbying organizations for the duration of my service as an appointee.
“6. I will not for a period of 2 years from the date of my appointment participate in any particular matter involving specific parties that is directly and substantially related to my former employer or former clients, including regulations and contracts.
“7. If I was a registered lobbyist within the 2 years before the date of my appointment, in addition to abiding by the limitations of paragraph 6, I will not for a period of 2 years after the date of my appointment participate in any particular matter on which I lobbied within the 2 years before the date of my appointment or participate in the specific issue area in which that particular matter falls.
“8. I agree that any hiring or other employment decisions I make will be based on the candidate’s qualifications, competence, and experience.
“9. I acknowledge that the Executive Order entitled ‘Ethics Commitments by Executive Branch Appointees,’ issued by the President on January 28, 2017, which I have read before signing this document, defines certain terms applicable to the foregoing obligations and sets forth the methods for enforcing them. I expressly accept the provisions of that Executive Order as a part of this agreement and as binding on me. I understand that the obligations of this pledge are in addition to any statutory or other legal restrictions applicable to me by virtue of Government service.”
Sec. 2. Definitions. As used herein and in the pledge set forth in section 1 of this order:
(a) “Administration” means all terms of office of the incumbent President serving at the time of the appointment of an appointee covered by this order.
(b) “Appointee” means every full-time, non-career Presidential or Vice-Presidential appointee, non-career appointee in the Senior Executive Service (or other SES-type system), and appointee to a position that has been excepted from the competitive service by reason of being of a confidential or policymaking character (Schedule C and other positions excepted under comparable criteria) in an executive agency. It does not include any person appointed as a member of the Senior Foreign Service or solely as a uniformed service commissioned officer.
(c) “Covered executive branch official” shall have the definition set forth in the Lobbying Disclosure Act.
(d) “Directly and substantially related to my former employer or former clients” shall mean matters in which the appointee’s former employer or a former client is a party or represents a party.
(e) “Executive agency” and “agency” mean “executive agency” as defined in section 105 of title 5, United States Code, except that the terms shall include the Executive Office of the President, the United States Postal Service, and the Postal Regulatory Commission, and excludes the Government Accountability Office. As used in paragraph 1 of the pledge, “executive agency” means the entire agency in which the appointee is appointed to serve, except that:
(1) with respect to those appointees to whom such designations are applicable under section 207(h) of title 18, United States Code, the term means an agency or bureau designated by the Director of the Office of Government Ethics under section 207(h) as a separate department or agency at the time the appointee ceased to serve in that department or agency; and
(2) an appointee who is detailed from one executive agency to another for more than 60 days in any calendar year shall be deemed to be an officer or employee of both agencies during the period such person is detailed.
(f) “Foreign Agents Registration Act of 1938, as amended” means sections 611 through 621 of title 22, United States Code.
(g) “Foreign government” means the “government of a foreign country,” as defined in section 1(e) of the Foreign Agents Registration Act of 1938, as amended, 22 U.S.C. 611(e).
(h) “Foreign political party” has the same meaning as that term has in section 1(f) of the Foreign Agents Registration Act of 1938, as amended, 22 U.S.C. 611(f).
(i) “Former client” is any person for whom the appointee served personally as agent, attorney, or consultant within the 2 years prior to the date of his or her appointment, but excluding instances where the service provided was limited to a speech or similar appearance. It does not include clients of the appointee’s former employer to whom the appointee did not personally provide services.
(j) “Former employer” is any person for whom the appointee has within the 2 years prior to the date of his or her appointment served as an employee, officer, director, trustee, or general partner, except that “former employer” does not include any executive agency or other entity of the Federal Government, State or local government, the District of Columbia, Native American tribe, or any United States territory or possession.
(k) “Gift”
(1) shall have the definition set forth in section 2635.203(b) of title 5, Code of Federal Regulations;
(2) shall include gifts that are solicited or accepted indirectly as defined at section 2635.203(f) of title 5, Code of Federal Regulations; and
(3) shall exclude those items excluded by sections 2635.204(b), (c), (e)(1) & (3), (j), (k), and (l) of title 5, Code of Federal Regulations.
(l) “Government official” means any employee of the executive branch.
(m) “Lobbied” shall mean to have acted as a registered lobbyist.
(n) “Lobbying activities” has the same meaning as that term has in the Lobbying Disclosure Act, except that the term does not include communicating or appearing with regard to: a judicial proceeding; a criminal or civil law enforcement inquiry, investigation, or proceeding; or any agency process for rulemaking, adjudication, or licensing, as defined in and governed by the Administrative Procedure Act, as amended, 5 U.S.C. 551 et seq. [See Short Title note set out preceding section 551 of this title.]
(o) “Lobbying Disclosure Act” means sections 1601 et seq. of title 2, United States Code.
(p) “Lobbyist” shall have the definition set forth in the Lobbying Disclosure Act.
(q) “On behalf of another” means on behalf of a person or entity other than the individual signing the pledge or his or her spouse, child, or parent.
(r) “Particular matter” shall have the same meaning as set forth in section 207 of title 18, United States Code, and section 2635.402(b)(3) of title 5, Code of Federal Regulations.
(s) “Particular matter involving specific parties” shall have the same meaning as set forth in section 2641.201(h) of title 5, Code of Federal Regulations, except that it shall also include any meeting or other communication relating to the performance of one’s official duties with a former employer or former client, unless the communication applies to a particular matter of general applicability and participation in the meeting or other event is open to all interested parties.
(t) “Participate” means to participate personally and substantially.
(u) “Pledge” means the ethics pledge set forth in section 1 of this order.
(v) “Post-employment restrictions” shall include the provisions and exceptions in section 207(c) of title 18, United States Code, and the implementing regulations.
(w) “Registered lobbyist or lobbying organization” shall mean a lobbyist or an organization filing a registration pursuant to section 1603(a) of title 2, United States Code, and in the case of an organization filing such a registration, “registered lobbyist” shall include each of the lobbyists identified therein.
(x) Terms that are used herein and in the pledge, and also used in section 207 of title 18, United States Code, shall be given the same meaning as they have in section 207 and any implementing regulations issued or to be issued by the Office of Government Ethics, except to the extent those terms are otherwise defined in this order.
(y) All references to provisions of law and regulations shall refer to such provisions as in effect on January 20, 2017.
Sec. 3. Waiver. (a) The President or his designee may grant to any person a waiver of any restrictions contained in the pledge signed by such person.
(b) A waiver shall take effect when the certification is signed by the President or his designee.
(c) A copy of the waiver certification shall be furnished to the person covered by the waiver and provided to the head of the agency in which that person is or was appointed to serve.
Sec. 4. Administration. (a) The head of every executive agency shall establish for that agency such rules or procedures (conforming as nearly as practicable to the agency’s general ethics rules and procedures, including those relating to designated agency ethics officers) as are necessary or appropriate:
(1) to ensure that every appointee in the agency signs the pledge upon assuming the appointed office or otherwise becoming an appointee; and
(2) to ensure compliance with this order within the agency.
(b) With respect to the Executive Office of the President, the duties set forth in section 4(a) shall be the responsibility of the Counsel to the President or such other official or officials to whom the President delegates those duties.
(c) The Director of the Office of Government Ethics shall:
(1) ensure that the pledge and a copy of this Executive Order are made available for use by agencies in fulfilling their duties under section 4(a);
(2) in consultation with the Attorney General or Counsel to the President, when appropriate, assist designated agency ethics officers in providing advice to current or former appointees regarding the application of the pledge; and
(3) adopt such rules or procedures (conforming as nearly as practicable to its generally applicable rules and procedures) as are necessary or appropriate:
(i) to carry out the foregoing responsibilities;
(ii) to apply the lobbyist gift ban set forth in paragraph 5 of the pledge to all executive branch employees;
(iii) to authorize limited exceptions to the lobbyist gift ban for circumstances that do not implicate the purposes of the ban;
(iv) to make clear that no person shall have violated the lobbyist gift ban if the person properly disposes of a gift as provided by section 2635.206 of title 5, Code of Federal Regulations;
(v) to ensure that existing rules and procedures for Government employees engaged in negotiations for future employment with private businesses that are affected by their official actions do not affect the integrity of the Government’s programs and operations; and
(vi) to ensure, in consultation with the Director of the Office of Personnel Management, that the requirement set forth in paragraph 8 of the pledge is honored by every employee of the executive branch; [sic]
(d) An appointee who has signed the pledge is not required to sign the pledge again upon appointment or detail to a different office, except that a person who has ceased to be an appointee, due to termination of employment in the executive branch or otherwise, shall sign the pledge prior to thereafter assuming office as an appointee.
(e) All pledges signed by appointees, and all waiver certifications with respect thereto, shall be filed with the head of the appointee’s agency for permanent retention in the appointee’s official personnel folder or equivalent folder.
Sec. 5. Enforcement. (a) The contractual, fiduciary, and ethical commitments in the pledge provided for herein are solely enforceable by the United States by any legally available means, including any or all of the following: debarment proceedings within any affected executive agency or civil judicial proceedings for declaratory, injunctive, or monetary relief.
(b) Any former appointee who is determined, after notice and hearing, by the duly designated authority within any agency, to have violated his or her pledge may be barred from engaging in lobbying activities with respect to that agency for up to 5 years in addition to the 5-year time period covered by the pledge. The head of every executive agency shall, in consultation with the Director of the Office of Government Ethics, establish procedures to implement this subsection, which shall include (but not be limited to) providing for factfinding and investigation of possible violations of this order and for referrals to the Attorney General for his or her consideration pursuant to subsection (c).
(c) The Attorney General or his or her designee is authorized:
(1) upon receiving information regarding the possible breach of any commitment in a signed pledge, to request any appropriate Federal investigative authority to conduct such investigations as may be appropriate; and
(2) upon determining that there is a reasonable basis to believe that a breach of a commitment has occurred or will occur or continue, if not enjoined, to commence a civil action on behalf of the United States against the former officer or employee in any United States District Court with jurisdiction to consider the matter.
(d) In such civil action, the Attorney General or his or her designee is authorized to request any and all relief authorized by law, including but not limited to:
(1) such temporary restraining orders and preliminary and permanent injunctions as may be appropriate to restrain future, recurring, or continuing conduct by the former officer or employee in breach of the commitments in the pledge he or she signed; and
(2) establishment of a constructive trust for the benefit of the United States, requiring an accounting and payment to the United States Treasury of all money and other things of value received by, or payable to, the former officer or employee arising out of any breach or attempted breach of the pledge signed by the former officer or employee.
Sec. 6. General Provisions. (a) This order supersedes Executive Order 13490 of January 21, 2009 (Ethics Commitments by Executive Branch Personnel), and therefore Executive Order 13490 is hereby revoked. No other prior Executive Orders are repealed by this order. To the extent that this order is inconsistent with any provision of any prior Executive Order, this order shall control.
(b) If any provision of this order or the application of such provision is held to be invalid, the remainder of this order and other dissimilar applications of such provision shall not be affected.
(c) The pledge and this order are not intended to, and do not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party (other than by the United States) against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
(d) The definitions set forth in this order are solely applicable to the terms of this order, and are not otherwise intended to impair or affect existing law.
(e) Nothing in this order shall be construed to impair or otherwise affect:
(1) the authority granted by law to an executive department, agency, or the head thereof; or
(2) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(f) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
Donald J. Trump.
Provisions relating to ethics commitments by executive branch appointees were contained in the following prior Executive Orders:
Ex. Ord. No. 13490, Jan. 21, 2009, 74 F.R. 4673, revoked by Ex. Ord. No. 13770, §6(a), Jan. 28, 2017, 82 F.R. 9337.
Ex. Ord. No. 12834, Jan. 20, 1993, 58 F.R. 5911, revoked by Ex. Ord. No. 13184, Dec. 28, 2000, 66 F.R. 697, eff. noon Jan. 20, 2001.
Delegation of Certain Functions and Authorities Relating to Workplace Accommodations for Nursing Mothers
Memorandum of President of the United States, Dec. 20, 2010, 75 F.R. 80673, provided:
Memorandum for the Director of the Office of Personnel Management
By the authority vested in me as President by the Constitution and the laws of the United States, including section 301 of title 3, United States Code, I hereby delegate to you the functions and authority conferred upon the President by section 7301 of title 5, United States Code, with respect to providing appropriate workplace accommodations for executive branch civilian employees who are nursing mothers.
You are authorized and directed to publish this memorandum in the Federal Register.
Barack Obama.
Establishing Policies for Addressing Domestic Violence in the Federal Workforce
Memorandum of President of the United States, Apr. 18, 2012, 77 F.R. 24339, provided:
Memorandum for the Heads of Executive Departments and Agencies
Despite the considerable progress made since the initial passage of the Violence Against Women Act in 1994 ([title IV of] Public Law 103–322), domestic violence remains a significant problem facing individuals, families, and communities. Domestic violence causes two million injuries each year, and an average of three women in the United States die each day as a result of domestic violence. While a disproportionate number of victims are women, domestic violence can affect anyone.
The effects of domestic violence spill over into the workplace. The Centers for Disease Control and Prevention estimate that domestic violence costs our Nation $8 billion a year in lost productivity and health care costs alone, and other studies have suggested that the full economic impact is even higher. Moreover, many victims of domestic violence report being harassed in the workplace or experiencing other employment-related effects.
As the Nation’s largest employer, the Federal Government should act as a model in responding to the effects of domestic violence on its workforce. Executive departments and agencies (agencies) have taken steps to address this issue, including by enhancing the quality and effectiveness of security in Federal facilities and by linking victims of domestic violence with Employee Assistance Programs. By building on these important efforts and existing policies, the Federal Government can further address the effects of domestic violence on its workforce.
It is the policy of the Federal Government to promote the health and safety of its employees by acting to prevent domestic violence within the workplace and by providing support and assistance to Federal employees whose working lives are affected by such violence. Therefore, by the authority vested in me as President by the Constitution and the laws of the United States of America, I hereby direct the following:
Section 1. Government-wide Guidance to Address the Effects of Domestic Violence on the Federal Workforce. Within 240 days of the date of this memorandum, the Director of the Office of Personnel Management (OPM) shall, in consultation with the Attorney General, the Secretary of Health and Human Services, the Secretary of Labor, the Secretary of Homeland Security, and other interested heads of agencies:
(a) issue guidance to agencies on the content of agency-specific policies, as required by section 2 of this memorandum, to prevent domestic violence and address its effects on the Federal workforce. The guidance shall include recommended steps agencies can take as employers for early intervention in and prevention of domestic violence committed against or by employees, guidelines for assisting employee victims, leave policies relating to domestic violence situations, general guidelines on when it may be appropriate to take disciplinary action against employees who commit or threaten acts of domestic violence, measures to improve workplace safety related to domestic violence, and resources for identifying relevant best practices related to domestic violence;
(b) establish a process for providing technical assistance to agencies in developing agency-specific policies, consistent with the guidance created pursuant to subsection (a) of this section, that meet the needs of their workforce; and
(c) consider whether issuing further guidance is warranted with respect to sexual assault and stalking and, if so, issue such guidance.
Sec. 2. Agency-Specific Actions and Policies. (a) Within 90 days from the date of this memorandum, each agency shall make available to the Director of OPM any existing agency-specific policies and practices for addressing the effects of domestic violence on its workforce.
(b) Within 120 days from the issuance of the guidance created pursuant to section 1 of this memorandum, each agency shall develop or modify, as appropriate, agency-specific polices for addressing the effects of domestic violence on its workforce, consistent with OPM guidance. Each agency shall submit for review and comment to the Director of OPM, a draft new or modified agency-specific policy. In reviewing the draft agency-specific policies, the Director of OPM shall consult with the Attorney General, the Secretary of Health and Human Services, the Secretary of Labor, the Secretary of Homeland Security, and other interested agency heads. Each agency shall issue a final agency-specific policy within 180 days after submission of its draft policy to the Director of OPM.
Sec. 3. General Provisions. (a) Nothing in this memorandum shall be construed to impair or otherwise affect:
(i) the authority granted by law to an agency, or the head thereof; or
(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(b) This memorandum shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
The Director of OPM is hereby authorized and directed to publish this memorandum in the Federal Register.
Barack Obama.
§7302. Post-employment notification
(a) Not later than the effective date of the amendments made by section 1106 of the National Defense Authorization Act for Fiscal Year 2004,1 or 180 days after the date of the enactment of that Act, whichever is later, the Office of Personnel Management shall, in consultation with the Attorney General and the Office of Government Ethics, promulgate regulations requiring that each Executive branch agency notify any employee of that agency who is subject to the provisions of section 207(c)(1) of title 18, as a result of the amendment to section 207(c)(2)(A)(ii) of that title by that Act.
(b) The regulations shall require that notice be given before, or as part of, the action that affects the employee’s coverage under section 207(c)(1) of title 18, by virtue of the provisions of section 207(c)(2)(A)(ii) of that title, and again when employment or service in the covered position is terminated.
(Added Pub. L. 108–136, div. A, title XI, §1125(b)(2), Nov. 24, 2003, 117 Stat. 1639.)
References in Text
The effective date of the amendments made by section 1106 of the National Defense Authorization Act for Fiscal Year 2004, referred to in subsec. (a), probably means the effective date of the amendments made by section 1125 of the National Defense Authorization Act for Fiscal Year 2004, Pub. L. 108–136, which enacted this section. Pub. L. 108–136 does not contain a section 1106, and the provisions appearing in section 1106 of H.R. 1588, the National Defense Authorization Act for Fiscal Year 2004, as passed by the House of Representatives on May 22, 2003, were contained in section 1125 of Pub. L. 108–136. For effective date of amendments made by section 1125 of Pub. L. 108–136, see section 1125(c) of Pub. L. 108–136, set out as an Effective Date of 2003 Amendment note under section 5304 of this title.
The date of the enactment of that Act, referred to in subsec. (a), is the date of enactment of the National Defense Authorization Act for Fiscal Year 2004, Pub. L. 108–136, which was approved Nov. 24, 2003.
Effective Date
Section effective on first day of first pay period beginning on or after Jan. 1, 2004, see section 1125(c)(1) of Pub. L. 108–136, set out as an Effective Date of 2003 Amendment note under section 5304 of this title.
1 See References in Text note below.
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