Which of the following entities was established under executive order 11491?

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1-5. GENERAL

10973 1–501. General Effective Date. All other provisions of

10982 Reorganization Plan No. 2 of 1978 shall be effective on

11103 January 1, 1979.

11171

11203 SECTION 2

11219

11228 REDESIGNATIONS, AMENDMENTS TO RULES AND EXECUTIVE

11264 ORDERS AND GENERAL PROVISIONS

11348

11355 2-1. REDESIGNATIONS

11422 2-101. Office of Personnel Management. Each of the Ex

11434 ecutive orders, as amended, listed in this Section under

11438 subsections (a) and (b), as applicable, and any other

11490 order which relates to functions or areas of responsibil

11521 ity delegated to the Office of Personnel Management, is

11552 amended and revised by substituting the words “Office

11561 of Personnel Management” for the words “Civil Service

11579 Commission" or "United States Civil Service Commis

11589 sion"; by substituting the word “Office" for the word

11603 "Commission” wherever the word “Commission” is

11609 used as a reference to United States Civil Service Com

11639 mission; and by substituting the words “Director, Of

11744 fice of Personnel Management” for the words “Chair

11817 man, Civil Service Commission”, “Chairman, United

11890 States Civil Service Commission”, “Commissioners” or

11895 "Commissioner" wherever they appear.

11899 (a) Executive orders relating to the Civil Service

11938 Rules, ethics and other matters of Presidential inter

11955 est.

12008

12015 Executive Orders Numbered

12027 8743

12049

12067 10577, as amended, except for

12070 Rules IV and V, as amended

in this order,

12089

12105 10641 10717

2–102. Merit Systems Protection Board. The provisions of

Section 3(e) of Executive Order No. 10774 (set out as a 10927

note under section 2025 of Title 22, Foreign Relations 11183 11222

and Intercourse), and Executive Order No. 11787 (for

merly set out as a note under section 7701 of this title), 11315 11451

are hereby amended and revised by substituting the 11570

words “Merit Systems Protection Board” for the words

“Civil Service Commission” or “Commission” when 11639

used as a reference to the Civil Service Commission 11648

wherever such words appear. 11721

2-103. Amending the Civil Service Rules. Section 101 of 11935

Executive Order No. 10577, as amended [set out as a 12004

note under section 3301 of this title], is further amend12014

ed by substituting for Rule II—Appointment Through 12043

the Competitive System, a new Sec. 2.4 as follows: (b) Other Executive orders relating to Federal Per

“Sec. 2.4. Probationary period. Persons selected from sonnel Management, and membership on Councils, Boards, and Committees.

registers of eligibles for career or career-conditional

appointment and employees promoted, transferred, or Executive Orders Numbered

otherwise assigned, for the first time, to supervisory or

managerial positions shall be required to serve a proba8744

tionary period under terms and conditions prescribed 9230

by the Office.”; 9712

by deleting the last sentence under Rule IV–Prohib9830

ited Practices, Sec. 4.3; and 9932

by substituting for Rule V–Regulations, Investiga9961

tions, and Enforcement, a new Rule V as follows: 10000

“RULE V-REGULATIONS, INVESTIGATIONS, 10242

EVALUATION, AND ENFORCEMENT" 10422

“Sec. 5.1. Civil Service Regulations. The Director, Of10450

fice of Personnel Management, shall promulgate and 10459

enforce regulations necessary to carry out the provi10530

sions of the Civil Service Act and the Veterans' Pref10549

erence Act, as reenacted in Title 5, United States Code, 10550

the Civil Service Rules, and all other statutes and Ex10552

ecutive orders imposing responsibilities on the Office. 10556

The Director is authorized, whenever there are prac10647

tical difficulties and unnecessary hardships in comply10763

ing with the strict letter of the regulation, to grant a 10774, except for Section 3(e)

variation from the strict letter of the regulation if such 10804

a variation is within the spirit of the regulations, and 10826

the efficiency of the Government and the integrity of 10880

the competitive service are protected and promoted. 10903

Whenever a variation is granted the Director shall note

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4) the d the Pr PureTnin

(Bthe ipding r

or position in the Government of the United States except as otherwise provided by law or at the direction of the President. The Director and Deputy Director shall not recommend any individual for appointment to any position (other than Deputy Director of the Office) which requires the advice and consent of the Senate.

(d) There may be within the Office of Personnel Management not more than 5 Associate Directors, as determined from time to time by the Director. Each Associate Director shall be appointed by the Director. (Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 399; Pub. L. 95 454, title II, 201(a), Oct. 13, 1978, 92 Stat. 1119.)

(b) by substituting the word “Authority” for the word “Council” in the third sentence.

17. Section 25(b) is amended by substituting the words “Office of Personnel Management” for the words “Department of Labor and Civil Service Commission.".

24. GENERAL PROVISIONS 2-401. Study and Report Provisions. The Director of the Office of Personnel Management is directed to conduct a study of Executive orders listed in Section 2–101(a) and (b) and to coordinate the study with such other agencies as may be named in or affected by these orders. The Director of Personnel Management and the Director of the Office of Management and Budget are directed to submit a report on or before July 1, 1981 to the President concerning the performance of functions specified in these Executive orders and any other Executive orders affecting the functions or responsibilities of the Office of Personnel Management. The report shall contain specific detailed recommendations for the continuation, modification, revision or revocation of each Executive order.

2-402. Continuing Effect of this Order. Except as required by the Civil Service Reform Act of 1978 [Pub. L. 95-454) as its provisions become effective, in accord with Section 7135 of Title 5, United States Code, as amended, and in accord with Section 902(a) of that Act [set out as a Savings Provisions note above], the provisions of this Order shall continue in effect, according to its terms, until modified, terminated or suspended.

2–403. Transfers and Determinations.

(a) The records, property, personnel and positions, and unexpended balances of appropriations or funds related to Civil Service Commission functions reassigned by this Order that are available, or to be made available, and necessary to finance or discharge the reassigned functions are transferred to the Director of the Office of Personnel Management, the Federal Labor Relations Authority, or the Federal Service Impasses Panel, as appropriate.

(b) The Director of the Office of Management and Budget shall make such determinations, issue such Orders and take all actions necessary or appropriate to effectuate the transfers or reassignments provided by this Order, including the transfer of funds, records, property and personnel.

2-404. Effective Date. Except as otherwise specifically provided in this Order, this Order shall be effective on January 1, 1979.

JIMMY CARTER. EXECUTIVE ORDER NO. 12157 Ex. Ord. No. 12157, Sept. 14, 1979, 44 F.R. 54035, which related to the President's Management Improvement Council, was revoked by Ex. Ord. No. 12258, Dec. 31, 1980, 46 F.R. 1251, set out as a note under section 14 of the Appendix to this title.

In subsection (a), the second sentence is substituted for original language concerning designation of Commissioners to serve six, four, and two years, respectively, as that provision is executed.

The section is reorganized to place the statutes relating to vacancies together, and redundancies are eliminated. Provisions relating to pay and travel expenses of Commissioners are omitted as superseded by the Act of Aug. 14, 1964, Pub. L. 88-426, $ 303(c)(18), (a)(66), 78 Stat. 417, 419, and Act of June 9, 1949, ch, 185, 63 Stat. 166, respectively, which are carried into this title.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

AMENDMENTS 1978–Pub. L. 95–454 substituted "Director; Deputy Director; Associate Directors” for “Term of office; filling vacancies; removal” in section catchline, and in text. provisions relating to the Director, Deputy Director, and Associate Directors of the Office of Personnel Management for provisions relating to the term of office, vacancies, and removal of members of the United States Civil Service Commission,

EFFECTIVE DATE OF 1978 AMENDMENT Amendment by Pub. L. 95-454 effective 90 days after Oct. 13, 1978, see section 907 of Pub. L. 95-454, set out as a note under section 1101 of this title.

$ 1102. Director; Deputy Director; Associate Di

rectors (a) There is at the head of the Office of Personnel Management a Director of the Office of Personnel Management appointed by the President, by and with the advice and consent of the Senate. The term of office of any individual appointed as Director shall be 4 years.

(b) There is in the Office a Deputy Director of the Office of Personnel Management appointed by the President, by and with the advice and consent of the Senate. The Deputy Director shall perform such functions as the Director may from time to time prescribe and shall act as Director during the absence or disability of the Director or when the office of Director is vacant.

(c) No individual shall, while serving as Director or Deputy Director, serve in any other office

$ 1103. Functions of the Director

(a) The following functions are vested in the Director of the Office of Personnel Management, and shall be performed by the Director, or subject to section 1104 of this title, by such employees of the Office as the Director designates:

(1) securing accuracy, uniformity, and justice in the functions of the Office;

(2) appointing individuals to be employed by the Office;

(3) directing and supervising employees of the Office, distributing business among employees and organizational units of the Office, and directing the internal management of the Office;

(4) directing the preparation of requests for appropriations for the Office and the use and expenditure of funds by the Office;

(5) executing, administering, and enforcing

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

AMENDMENTS 1986—Subsec. (a)(9). Pub. L. 99–251, $ 301, added par. (9).

Subsec. (b)(4). Pub. L. 99–251, $ 302, added par. (4).

1978Pub. L. 95 454 substituted “Functions of the Director” for “Chairman; Vice Chairman; Executive Director” in section catchline, and in text provisions relating to the functions of the Director of the Office of Personnel Management for provisions relating to the Chairman, Vice Chairman, and Executive Director of the United States Civil Service Commission.

EFFECTIVE DATE OF 1978 AMENDMENT Amendment by Pub. L. 95 454 effective 90 days after Oct. 13, 1978, see section 907 of Pub. L. 95 454, set out as a note under section 1101 of this title.

SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 1105, 1204, 1212, 3133 of this title.

(A) the civil service rules and regulations of the President and the Office and the laws governing the civil service; and

(B) the other activities of the Office including retirement and classification activities; except with respect to functions for which the Merit Systems Protection Board or the Special Counsel is primarily responsible;

(6) reviewing the operations under chapter 87 of this title;

(7) aiding the President, as the President may request, in preparing such civil service rules as the President prescribes, and otherwise advising the President on actions which may be taken to promote an efficient civil service and a systematic application of the merit system principles,

principles, including ommending policies relating to the selection, promotion, transfer, performance, pay, conditions of service, tenure, and separation of employees;

(8) conducting, or otherwise providing for the conduct of, studies and research under chapter 47 of this title into methods of assuring improvements in personnel management; and

(9) incurring official reception and representation expenses of the Office subject to any limitation prescribed in any law. (b)(1) The Director shall publish in the Federal Register general notice of any rule or regulation vhich is proposed by the Office and the applicasion of which does not apply solely to the Office r its employees. Any such notice shall include he matter required under section 553(b)(1), (2), und (3) of this title.

(2) The Director shall take steps to ensure hat

(A) any proposed rule or regulation to which paragraph (1) of this subsection applies is posted in offices of Federal agencies maintaining copies of the Federal personnel regulations; and

(B) to the extent the Director determines appropriate and practical, exclusive representatives of employees affected by such proposed rule or regulation and interested members of the public are notified of such proposed rule or regulation. (3) Paragraphs (1) and (2) of this subsection hall not apply to any proposed rule or regulaion which is temporary in nature and which is ecessary to be implemented expeditiously as a esult of an emergency.

(4) Paragraphs (1) and (2) of this subsection nd section 1105 of this title shall not apply to De establishment of any schedules or rates of asic pay or allowances under subpart D of part I of this title. The preceding sentence does not pply to the establishment of the procedures, methodology, or criteria used to establish such chedules, rates, or allowances. Pub. L. 89-554, Sept. 6, 1966, 80 Stat. 399; Pub. L. 5-454, title II, 5201(a), Oct. 13, 1978, 92 Stat. 1119; ub. L. 99-251, title III, SS 301, 302, Feb. 27, 1986,

$ 1104. Delegation of authority for personnel

management (a) Subject to subsection (b)(3) of this section

(1) the President may delegate, in whole or in part, authority for personnel management functions, including authority for competitive examinations, to the Director of the Office of Personnel Management; and

(2) the Director may delegate, in whole or in part, any function vested in or delegated to the Director, including authority for competitive examinations (except competitive examinations for administrative law judges appointed under section 3105 of this title, the cost of which examinations shall be reimbursed by payments from the agencies employing such judges to the revolving fund established under section 1304(e), to the heads of agencies in the executive branch and other agencies employing persons in the competitive service.

(b)(1) The Office shall establish standards which shall apply to the activities of the Office or any other agency under authority delegated under subsection (a) of this section.

(2) The Office shall establish and maintain an oversight program to ensure that activities under any authority delegated under subsection (a) of this section are in accordance with the merit system principles and the standards established under paragraph (1) of this subsection.

(3) Nothing in subsection (a) of this section shall be construed as affecting the responsibility of the Director to prescribe regulations and to ensure compliance with the civil service laws, rules, and regulations.

(4) At the request of the head of an agency to whom a function has been delegated under sub

section (a)(2), the Office may provide assistance to the agency in performing such function. Such assistance shall, to the extent determined appropriate by the Director of the Office, be performed on a reimbursable basis through the revolving fund established under section 1304(e).

(c) If the Office makes a written finding, on the basis of information obtained under the program established under subsection (b)(2) of this section or otherwise, that any action taken by

agency pursuant to authority delegated under subsection (a)(2) of this section is contrary to any law, rule, or regulation, or is contrary to any standard established under subsection (b)(1) of this section, the agency involved shall take any corrective action the Office may require. (Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 399; Pub. L. 90-83, $1(2), Sept. 11, 1967, 81 Stat. 195; Pub. L. 95 454, title II, 8 201(a), Oct. 13, 1978, 92 Stat. 1120; Pub. L. 104-52, title IV, $1, Nov. 19, 1995, 109 Stat. 489.)

1995—Subsec. (a). Pub. L. 104-52, $1(1)(B), struck out closing provisions which read as follows: “except that the Director may not delegate authority for competitive examinations with respect to positions that have requirements which are common to agencies in the Federal Government, other than in exceptional cases in which the interests of economy and efficiency require such delegation and in which such delegation will not weaken the application of the merit system principles.”

Subsec. (a)(2). Pub. L. 104-52, $1(1)(A), inserted ", the cost of which examinations shall be reimbursed by payments from the agencies employing such judges to the revolving fund established under section 1304(e)" after "title" and substituted period for semicolon at end.

Subsec. (b)(4). Pub. L, 104-52, $1(2), added par. (4).

1978Pub. L. 95 454 substituted “Delegation of authority for personnel management” for “Functions of Chairman” in section catchline, and in text provisions relating to the delegation of authority for personnel management for provisions relating to functions of the Chairman of the United States Civil Service Commission.

HISTORICAL AND REVISION NOTES

1966 ACT

$ 1105. Administrative procedure

Subject to section 1103(b) of this title, in the exercise of the functions assigned under this chapter, the Director shall be subject to subsections (b), (c), and (d) of section 553 of this title, notwithstanding subsection (a) of such section 553. (Pub. L. 89-554, Sept. 6, 1966, 80 Stat. 400; Pub. L. 95-454, title II, $201(a), Oct, 13, 1978, 92 Stat. 1121.)

HISTORICAL AND REVISION NOTES

In the first sentence, the word "officers” is omitted as included in “employees”.

Subsection (a)(1) is added on authority of the words "to secure accuracy, uniformity, and justice in all their proceedings” in the first sentence of former section 635, which is carried into section 1105. The function in this paragraph was transferred from the chief examiner to the Chairman of the United States Civil Service Commission by 1949 Reorg. Plan No. 5, $2(a)(2).

In subsection (a)(4), the words "requests for appropriations" are substituted for “budget estimates” on authority of the Act of Sept. 12, 1950, ch. 946, $ 102(f), 64 Stat. 833; 31 U.S.C. 22.

In subsection (b)(2), the word "prescription" is substituted for promulgation" and the words “now vested in the Commission” are omitted as surplusage.

In subsection (b)(4), the words “as is now authorized to be taken by the Commission” are omitted as surplusage.

In subsection (b)(5), the words "civil service" are substituted for "Federal service".

In subsection (b)(7), the words “submission of requests for appropriations" are substituted for “revision and submission . of budget estimates” on authority of the Act of Sept. 12, 1950, ch, 946, § 102(f), 64 Stat. 833; 31 U.S.C. 22.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

In subsection (a), the words "the District of Columbia” are substituted for “Washington”. The words "at least three individuals in the service of the United States' are substituted for a "a suitable number of persons, not less than three, in the official service of the United States”. So much of the first three sentences of former section 635 as related to the offices of the Chief Examiner and the Secretary are omitted because the offices were abolished by 1949 Reorg. Plan No. 5, $4. So much of the first sentence as imposed a duty on the Chief Examiner, under the Commission's direction, to act with the examining boards to secure accuracy, uni. formity, and justice in all their proceedings is restated in section 1104(a)(1). The fourth sentence of former section 635, authorizing the Commission to employ a stenographer and a messenger, is omitted as obsolete. The

remainder is rewritten for clarity. The text of 1949 Reorg. Plan No. 5, 84, is omitted as executed.

In subsection (b), the words “Chairman, United States Civil Service Commission” are substituted for "chief examiner” on authority of 1949 Reorg. Plan No. 5, $2(a)(2). The words "at all times” are omitted as surplasage.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

tion Board and Special Counsel”, in item 1206 substituting “Annual report” for “Authority and responsibilities of the Special Counsel”, omitting items 1207 "Hearings and decisions on complaints filed by the Special Counsel”, 1208 “Stays of certain personnel actions”, and 1209 "Information”, and inserting subchapters II and III headings and items 1211 to 1219, 1221, and 1222.

CHAPTER REFERRED TO IN OTHER SECTIONS This chapter is referred to in sections 2302, 3352 of this title; title 3 section 401; title 22 section 4139.

AMENDMENTS 1978—Pub. L. 95 454 substituted "Administrative procedure" for "Boards of examiners' in section catchline, and in text provisions relating to administrative procedure applicable to administration of this chapter for provisions relating to boards of examiners for the United States Civil Service Commission.

SUBCHAPTER 1-MERIT SYSTEMS

PROTECTION BOARD

1989–Pub. L. 101–12, $3(b)(4), Apr. 10, 1989, 103 Stat. 31, inserted subchapter heading.

EFFECTIVE DATE OF 1978 AMENDMENT Amendment by Pub. L. 95 454 effective 90 days after Oct. 13, 1978, see section 907 of Pub. L. 95 454, set out as a note under section 1101 of this title.

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in section 1103 of this title.

CHAPTER 12 MERIT SYSTEMS PROTECTION BOARD, OFFICE OF SPECIAL COUNSEL, AND EMPLOYEE RIGHT OF ACTION

SUBCHAPTER I-MERIT SYSTEMS PROTECTION

BOARD

$ 1201. Appointment of members of the Merit Sys

tems Protection Board The Merit Systems Protection Board is composed of 3 members appointed by the President, by and with the advice and consent of the Senate, not more than 2 of whom may be adherents of the same political party. The members of the Board shall be individuals who, by demonstrated ability, background, training, or experience are especially qualified to carry out the functions of the Board. No member of the Board may hold another office or position in the Government of the United States, except as otherwise provided by law or at the direction of the President. The Board shall have an official seal which shall be judicially noticed. The Board shall have its principal office in the District of Columbia and may have field offices in other appropriate locations. (Added Pub. L. 95 454, title II, (a), Oct. 13, 1978, 92 Stat. 1121; amended Pub. L. 101-12, $3(a)(1), Apr. 10, 1989, 103 Stat. 16.)

1989-Pub. L. 101–12 substituted "The members" for "The Chairman and members" in second sentence,

Sec. 1201.

Appointment of members of the Merit Sys

tems Protection Board. 1202.

Term of office; filling vacancies; removal. 1203. Chairman; Vice Chairman. 1204. Powers and functions of the Merit Systems

Protection Board. 1205. Transmittal of information to Congress. 1206. Annual report. SUBCHAPTER II-OFFICE OF SPECIAL COUNSEL

Establishment. 1212.

Powers and functions of the Office of Special

Counsel.
Provisions relating to disclosures of viola-

tions of law, mismanagement, and certain

other matters.1 1214.

Investigation of prohibited personnel prac

tices; corrective action.

Disciplinary action. 1216.

Other matters within the jurisdiction of the

Office of Special Counsel. 1217. Transmittal of information to Congress. 1218. Annual report. 1219. Public information. SUBCHAPTER III-INDIVIDUAL RIGHT OF ACTION

IN CERTAIN REPRISAL CASES
Individual right of action in certain reprisal

cases. 1222.

Availability of other remedies.

EFFECTIVE DATE OF 1989 AMENDMENT

Section 11 of Pub. L. 101–12 provided that: “This Act and the amendments made by this Act (see Short Title of 1989 Amendment note below] shall take effect 90 days following the date of enactment of this Act (Apr. 10, 1989].”

AMENDMENTS 1989 Pub. L. 101–12, 83(b)(2), (3), Apr. 10, 1989, 103 Stat. 31, substituted ", OFFICE OF SPECIAL COUNSEL, AND EMPLOYEE' RIGHT OF ACTION” for “AND SPECIAL COUNSEL” in chapter heading, and amended chapter analysis generally, inserting subchapter I headng, and in item 1204 substituting “Powers and funccions of the Merit Systems Protection Board” for “Special Counsel; appointment and removal", in item 1205 substituting "Transmittal of information to Congress” or “Powers and functions of the Merit Systems Protec

Subchapter effective 90 days after Oct. 13, 1978, see section 907 of Pub. L, 95-454, set out as an Effective Date of 1978 Amendment note under section 1101 of this title.

SHORT TITLE OF 1989 AMENDMENT Section 1 of Pub. L. 101–12 provided that: “This Act (enacting subchapters II and III of this chapter and section 3352 of this title, amending this section and sections 1202 to 1206, 1209, 1211, 2302, 2303, 3393, 7502, 7512, 7521, 7542, 7701, and 7703 of this title and section 4139 of Title 22, Foreign Relations and Intercourse, repealing sections 1207 and 1208 of this title, and enacting provisions set out as notes under this section and sections 1211 and 5509 of this title] may be cited as the 'Whistleblower Protection Act of 1989'.”

SAVINGS PROVISION Section 7 of Pub. L. 101–12 provided that:

"(a) ORDERS, RULES, AND REGULATIONS.-All orders, rules, and regulations issued by the Merit Systems Pro

So in original. Does not conform to section catchline.

tection Board or the Special Counsel before the effective date of this Act (see Effective Date of 1989 Amendment note above] shall continue in effect, according to their terms, until modified, terminated, superseded, or repealed.

“(b) ADMINISTRATIVE PROCEEDINGS.—No provision of this Act (see Short Title of 1989 Amendment note above] shall affect any administrative proceeding pending at the time such provisions take effect. Orders shall be issued in such proceedings, and appeals shall be taken therefrom, as if this Act had not been enacted.

"(c) SUITS AND OTHER PROCEEDINGS.—No suit, action, or other proceeding lawfully commenced by or against the members of the Merit Systems Protection Board, the Special Counsel, or officers or employees thereof, in their official capacity or in relation to the discharge of their official duties, as in effect immediately before the effective date of this Act (see Effective Date of 1989 Amendment note above), shall abate by reason of the enactment of this Act. Determinations with respect to any such suit, action, or other proceeding shall be made as if this Act had not been enacted."

$ 1202. Term of office; filling vacancies; removal

(a) The term of office of each member of the Merit Systems Protection Board is 7 years.

(b) A member appointed to fill a vacancy occurring before the end of a term of office of the member's predecessor serves for the remainder of that term. Any appointment to fill a vacancy is subject to the requirements of section 1201. Any new member serving only a portion of a seven-year term in office may continue to serve until a successor is appointed and has qualified, except that such member may not continue to serve for more than one year after the date on which the term of the member would otherwise expire, unless reappointed.

(c) Any member appointed for a 7-year term may not be reappointed to any following term but may continue to serve beyond the expiration of the term until a successor is appointed and has qualified, except that such member may not continue to serve for more than one year after the date on which the term of the member would otherwise expire under this section.

(d) Any member may be removed by the President only for inefficiency, neglect of duty, or malfeasance in office. (Added Pub. L. 95 454, title II, $ 202(a), Oct. 13, 1978, 92 Stat. 1122; amended Pub. L. 100–202, § 101(m) [title VI, $ 620], Dec. 22, 1987, 101 Stat. 1329_390, 1329-427; Pub. L. 101–12, 83(a)(2), (3), Apr. 10, 1989, 103 Stat. 17.)

WHISTLEBLOWER PROTECTION; CONGRESSIONAL

STATEMENT OF FINDINGS AND PURPOSE Section 2 of Pub. L. 101–12 provided that: “(a) FINDINGS.—The Congress finds that

“(1) Federal employees who make disclosures described in section 2302(b)(8) of title 5, United States Code, serve the public interest by assisting in the elimination of fraud, waste, abuse, and unnecessary Government expenditures;

“(2) protecting employees who disclose Government illegality, waste, and corruption is a major step toward a more effective civil service; and

“(3) in passing the Civil Service Reform Act of 1978 [Pub. L. 95–454, see Tables for classification), Congress established the Office of Special Counsel to protect whistleblowers (those individuals who make disclosures described in such section 2302(b)(8)) from reprisal.

“(b) PURPOSE.-The purpose of this Act (see Short Title of 1989 Amendment note above) is to strengthen and improve protection for the rights of Federal employees, to prevent reprisals, and to help eliminate wrongdoing within the Government by

“(1) mandating that employees should not suffer adverse consequences as a result of prohibited personnel practices; and “(2) establishing

“(A) that the primary role of the Office of Special Counsel is to protect employees, especially whistleblowers, from prohibited personnel practices;

“(B) that the Office of Special Counsel shall act in the interests of employees who seek assistance from the Office of Special Counsel; and

“(C) that while disciplining those who commit prohibited personnel practices may be used as a means by which to help accomplish that goal, the protection of individuals who are the subject of prohibited personnel practices remains the paramount consideration.”

AMENDMENTS 1989–Pub. L. 101–12, 83(a)(2), substituted a semicolon for the comma after “office" in section catchline.

Subsec. (b). Pub. L. 101–12, 83(a)(3), substituted “the member's" for "his" in first sentence and struck out “of this title" after “section 1201” in second sentence.

1987–Subsec. (b). Pub. L. 100–202 inserted provision permitting any new member serving portion of sevenyear term to continue serving until successor is appointed and has qualified, with exception limiting duration of such service.

EFFECTIVE DATE OF 1989 AMENDMENT Amendment by Pub. L. 101–12 effective 90 days following Apr. 10, 1989, see section 11 of Pub. L. 101-12, set out as a note under section 1201 of this title.

TERMS OF OFFICE OF MEMBERS

Section 202(b) of Pub. L. 95–454 provided that: “Any term of office of any member of the Merit Systems Protection Board serving on the effective date of this Act (see Effective Date of 1978 Amendment note set out under section 1101 of this title] shall continue in effect until the term would expire under section 1102 of title 5, United States Code, as in effect immediately before the effective date of this Act, and upon expiration of the term, appointments to such office shall be made under sections 1201 and 1202 of title 5, United States Code (as added by this section)."

$ 1203. Chairman; Vice Chairman

(a) The President shall from time to time appoint, by and with the advice and consent of the Senate, one of the members of the Merit Systems Protection Board as the Chairman of the Board. The Chairman is the chief executive and administrative officer of the Board.

(b) The President shall from time to time designate one of the members of the Board as Vice Chairman of the Board. During the absence or disability of the Chairman, or when the office of Chairman is vacant, the Vice Chairman shall perform the functions vested in the Chairman.

(c) During the absence or disability of both the Chairman and the Vice Chairman, or when the offices of Chairman and Vice Chairman are vacant, the remaining Board member shall perform the functions vested in the Chairman. (Added Pub. L. 95-454, title II, $202(a), Oct. 13, 1978, 92 Stat. 1122; amended Pub. L. 101–12, $.3(a)(4), (5), Apr. 10, 1989, 103 Stat. 17.)

SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 1202 of this title.

Page 4

the amendments made by this Act shall be effective on and after the date of the enactment of this Act (Oct. 29, 1994].”

Amendment by Pub. L. 103-353 effective with respect to reemployments initiated on or after the first day after the 60-day period beginning Oct. 13, 1994, with transition rules, see section 8 of Pub. L. 103-353, set out as an Effective Date note under section 4301 of Title 38, Veterans' Benefits.

EFFECTIVE DATE OF 1989 AMENDMENT

Amendment by Pub. L. 101–12 effective 90 days following Apr. 10, 1989, see section 11 of Pub. L. 101–12, set out as a note under section 1201 of this title.

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 1212, 1221 of this title.

$ 1205. Transmittal of information to Congress

Notwithstanding any other provision of law or any rule, regulation or policy directive, any member of the Board, or any employee of the Board designated by the Board, may transmit to the Congress on the request of any committee or subcommittee thereof, by report, testimony, or otherwise, information and views on functions, responsibilities, or other matters relating to the Board, without review, clearance, or approval by any other administrative authority. (Added Pub. L. 95 454, title II, $ 202(a), Oct. 13, 1978, 92 Stat. 1131, $ 1209(a); renumbered $1205 and amended Pub. L. 101–12, § 3(a)(9), Apr. 10, 1989, 103 Stat. 18.)

Subsec. (b)(1). Pub. L. 101–12, $3(a)(7)(A), struck out "the Special Counsel,” after “Board,”.

Subsec. (b)(2). Pub. L. 101–12, $3(a)(7)(D), amended par. (2) generally. Prior to amendment, par. (2) read as follows: “Any member of the Board, the Special Counsel, and any administrative law judge appointed by the Board under section 3105 of this title may

"(A) issue subpenas requiring the attendance and testimony of witnesses and the production of documentary or other evidence from any place in the United States or any territory or possession thereof, the Commonwealth of Puerto Rico, or the District of Columbia; and

"(B) order the taking of depositions and order responses to written interrogatories." Subsec. (b)(3). Pub. L. 101–12, $3(a)(7)(B), substituted "subpoena” for “subpena" and "subpoenaed” for “subpenaed".

Subsec. (c). Pub. L. 101–12, 83(a)(7)(B), (E), substituted "subpoena" for "subpena” in two places, “(b)(2)(A) or section 1214(b), upon application by the Board” for "(b)(2) of this section", and "for the district” for “for the judicial district”.

Subsec. (d). Pub. L. 101-12, $3(a)(7)(F), added subsec. (d). Former subsec. (d) redesignated (e).

Subsec. (e). Pub. L. 101-12, $3(a)(7)(F), redesignated former subsec. (d) as (e). Former subsec. (e) redesignated (f).

Subsec. (e)(1). Pub. L. 101–12, 83(a)(7)(A), (G)(i), designated existing provisions as subpar. (A), struck out "of this section" after “subsection (a)(1)”, and added subpar. (B).

Subsec. (e)(2). Pub. L. 101–12, $3(a)(7)(G)(ii), designated existing provisions as subpar. (A), struck out "of this section" after “subsection (a)(2)", and added subpar. (B).

Subsec. (e)(3). Pub. L. 101-12, 83(a)(7)(A), (G)(iii), struck out “of this section" after “subsection (a)(3)” and inserted "of Personnel Management” after “Office".

Subsec. (f). Pub. L. 101–12, $3(a)(7)(F), redesignated former subsec. (e) as (f). Former subsec. (f) redesignated (g).

Subsec. (1)(1). Pub. L. 101–12, 83(a)(7)(H)(i), inserted "of the Office of Personnel Management” after “Director" and struck out of this title” after “section 1103”.

Subsec. (f)(2). Pub. L. 101-12, $3(a)(7)(H)(ii), inserted comma after "subsection” and in subpars. (A) and (B) struck out “of this title" after “section 2302(b)".

Subsec. (f)(3), (4). Pub. L. 101–12, 83(a)(7)(H)(iii), struck out “(A)" before “The Director”, struck out subpar. (B) which provided that any review conducted by the Board be limited to determining the validity on its face of the provision under review and whether the provision under review has been validly implemented, and redesignated former subpar. (C) and cls. (i) and (ii) of former subpar. (C) as par. (4) and subpars. (A) and (B), respectively, of par. (4).

Subsecs. (g) to (i). Pub. L. 101-12, $3(a)(7)(F), redesignated former subsecs. (f) to (h) as (g) to (i), respectively. Former subsec. (i) redesignated (j).

Subsec. (j). Pub. L. 101–12, 83(a)(7)(F), (I), redesignated former subsec. (i) as (j) and substituted “chapter 33" for "chapter 33 of this title”. Former subsec. (j) redesignated (k).

Subsecs. (k), (). Pub. L. 101-12, 83(a)(7)(F), redesignated former subsecs. (j) and (k) as (k) and (), respec

1982–Subsec. (j). Pub. L. 97–258 substituted "section 1105 of title 31" for "section 201 of the Budget and ACcounting Act, 1921 (31 U.S.C. 11)”.

EFFECTIVE DATE OF 1994 AMENDMENTS Section 14 of Pub. L. 103-424 provided that: "The provisions of this Act (amending this section and sections 1211, 1212, 1214, 1218, 1221, 2105, 2302, 4313, 7121, and 8348 of this title, enacting provisions set out as notes under sections 1212 and 1214 of this title and section 1441a of Title 12, Banks and Banking, and amending provisions set out as a note under section 5509 of this title) and

PRIOR PROVISIONS A prior section 1205 was renumbered section 1204 of this title.

1989—Pub. L. 101–12 renumbered section 1209(a) of this title as this section and inserted section catchline.

EFFECTIVE DATE OF 1989 AMENDMENT Amendment by Pub. L. 101–12 effective 90 days following Apr. 10, 1989, see section 11 of Pub. L. 101-12, set out as a note under section 1201 of this title.

$ 1206. Annual report

The Board shall submit an annual report to the President and the Congress on its activities, which shall include a description of significant actions taken by the Board to carry out its functions under this title. The report shall also review the significant actions of the Office of Personnel Management, including an analysis of whether the actions of the Office of Personnel Management are in accord with merit system principles and free from prohibited personnel practices. (Added Pub. L. 95–454, title II, $202(a), Oct. 13, 1978, 92 Stat. 1131, § 1209(b); renumbered $ 1206 and amended Pub. L. 101–12, $3(a)(10), Apr. 10, 1989, 103 Stat. 18.)

A prior section 1206, added Pub. L. 95–454, title II, $ 202(a), Oct. 13, 1978, 92 Stat. 1125, which related to authority and responsibilities of Special Counsel, was repealed by Pub. L. 101–12, 98 3(a)(8), 11, Apr. 10, 1989, 103 Stat. 18, effective 90 days following Apr. 10, 1989. See section 1212 of this title.

Page 5

be taken which requires corrective action, the agency involved, and shall submit a copy of the
Special Counsel shall report the determination report to the Director of the Office of Personnel
together with any findings or recommendations Management and the Director of the Office of
to the Board, the agency involved and to the Of- Management and Budget.
fice of Personnel Management, and may report (2) In any case in which the Special Counsel
such determination, findings and recommenda- determines that there are reasonable grounds to
tions to the President. The Special Counsel may believe that a prohibited personnel practice has
include in the report recommendations for cor- occurred, exists, or is to be taken, the Special rective action to be taken.

Counsel shall proceed with any investigation or
(C) If, after a reasonable period of time, the proceeding unless-
agency does not act to correct the prohibited (A) the alleged violation has been reported
personnel practice, the Special Counsel may pe- to the Attorney General; and
tition the Board for corrective action.

(B) the Attorney General is pursuing an in(D) If the Special Counsel finds, in consulta- vestigation, in which case the Special Counsel, tion with the individual subject to the prohib- after consultation with the Attorney General, ited personnel practice, that the agency has has discretion as to whether to proceed. acted to correct the prohibited personnel practice, the Special Counsel shall file such finding

(e) If, in connection with any investigation with the Board, together with any written com

under this subchapter, the Special Counsel dements which the individual may provide.

termines that there is reasonable cause to be(E) A determination by the Special Counsel

lieve that any violation of any law, rule, or regunder this paragraph shall not be cited or re

ulation has occurred other than one referred to ferred to in any proceeding under this paragraph

in subsection (b) or (d), the Special Counsel shall or any other administrative or judicial proceed

report such violation to the head of the agency ing for any purpose, without the consent of the

involved. The Special Counsel shall require, person submitting the allegation of a prohibited

within 30 days after the receipt of the report by personnel practice.

the agency, a certification by the head of the (3) Whenever the Special Counsel petitions the

agency which statesBoard for corrective action, the Board shall pro

(1) that the head of the agency has personvide an opportunity for

ally reviewed the report; and (A) oral or written comments by the Special

(2) what action has been or is to be taken, Counsel, the agency involved, and the Office of

and when the action will be completed. Personnel Management; and

(f) During any investigation initiated under (B) written comments by any individual who

this subchapter, no disciplinary action shall be alleges to be the subject of the prohibited per- taken against any employee for any alleged prosonnel practice.

hibited activity under investigation or for any (4)(A) The Board shall order such corrective related activity without the approval of the Speaction as the Board considers appropriate, if the cial Counsel. Board determines that the Special Counsel has (g) If the Board orders corrective action under demonstrated that a prohibited personnel prac

this section, such corrective action may intice, other than one described in section clude2302(b)(8), has occurred, exists, or is to be taken.

(1) that the individual be placed, as nearly as (B)(i) Subject to the provisions of clause (ii), possible, in the position the individual would in any case involving an alleged prohibited per- have been in had the prohibited personnel sonnel practice as described under section practice not occurred; and 2302(b)(8), the Board shall order such corrective (2) reimbursement for attorney's fees, back action as the Board considers appropriate if the pay and related benefits, medical costs inSpecial Counsel has demonstrated that a disclo- curred, travel expenses, and any other reasonsure described under section 2302(b)(8) was a con

able and foreseeable consequential damages. tributing factor in the personnel action which

(Added Pub. L. 101–12, $3(a)(13), Apr. 10, 1989, 103 was taken or is to be taken against the individ

Stat. 23; amended Pub. L. 103-424, 88 3(c), (d), 8(a), ual. (ii) Corrective action under clause (i) may not

Oct. 29, 1994, 108 Stat. 4362, 4364.) be ordered if the agency demonstrates by clear

AMENDMENTS and convincing evidence that it would have

1994–Subsec. (a)(1)(D). Pub. L. 103-424, $3(c)(1), added taken the same personnel action in the absence

subpar. (D). of such disclosure.

Subsec. (a)(2)(A)(iv). Pub. L. 103-424, $3(c)(2), added cl. (c)(1) Judicial review of any final order or de- (iv). cision of the Board under this section may be Subsec. (b)(2). Pub. L. 103-424, $3(d), added subpars. obtained by any employee, former employee, or

(A) and (E) and redesignated former subpars. (A) to (C) applicant for employment adversely affected by as (B) to (D), respectively. such order or decision.

Subsec. (g). Pub. L. 103-424, § 8(a), added subsec. (g). (2) A petition for review under this subsection

TERMINATION STATEMENT shall be filed with such court, and within such

Section 12(b) of Pub. L. 103-424 provided that: “The time, as provided for under section 7703(b).

Special Counsel shall include in any letter terminating (d)(1) If, in connection with any investigation

an investigation under section 1214(a)(2) of title 5, under this subchapter, the Special Counsel de

United States Code, the name and telephone number of termines that there is reasonable cause to be- an employee of the Special Counsel who is available to lieve that a criminal violation has occurred, the respond to reasonable questions from the person reSpecial Counsel shall report the determination garding the investigation or review conducted by the to the Attorney General and to the head of the Special Counsel, the relevant facts ascertained by the

Page 6

mployee

, ali appropriate Ter subsectica

che uniforme of any perso provide guts

AMENDMENTS 1993–Subsec. (c). Pub. L, 103-94 amended subsec. (c) generally. Prior to amendment, subsec. (c) read as follows:

"(1) If an investigation by the Special Counsel under subsection (a)(1) substantiates an allegation relating to any activity prohibited under section 7324, the Special Counsel may petition the Merit Systems Protection Board for any penalties provided for under section 7325.

“(2) If the Special Counsel receives an allegation concerning any matter under paragraph (3), (4), or (5) of subsection (a), the Special Counsel may investigate and seek corrective action under section 1214 in the same way as if a prohibited personnel practice were involved.”

AMENDMENTS 1994-Pub. L. 103-424 inserted “cases in which it did not make a determination whether there are reasonable grounds to believe that a prohibited personnel practice has occurred, exists, or is to be taken within the 240-day period specified in section 1214(b)(2)(A)(i)," after “investigations conducted by it,”.

TERMINATION OF REPORTING REQUIREMENTS For termination, effective May 15, 2000, of reporting provisions in this section, 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 188 of House Document No. 103–7.

EFFECTIVE DATE OF 1993 AMENDMENT; SAVINGS

PROVISION Amendment by Pub. L. 103–94 effective 120 days after Oct. 6, 1993, but not to release or extinguish any penalty, forfeiture, or liability incurred under amended provision, which is to be treated as remaining in force for purpose of that penalty, forfeiture, or liability, and no provision of Pub. L. 103-94 to affect any proceedings with respect to which charges were filed on or before 120 days after Oct. 6, 1993, with orders to be issued in such proceedings and appeals taken therefrom as if Pub. L. 103–94 had not been enacted, see section 12 of Pub. L. 103–94, set out as an Effective Date; Savings Provision note under section 7321 of this title.

$ 1219. Public information

(a) The Special Counsel shall maintain and make available to the public

(1) a list of noncriminal matters referred to heads of agencies under subsection (c) of section 1213, together with reports from heads of agencies under subsection (C)(1)(B) of such section relating to such matters;

(2) a list of matters referred to heads of agencies under section 1215(c)(2);

(3) a list of matters referred to heads of agencies under subsection (e) of section 1214, together with certifications from heads of agencies under such subsection; and

(4) reports from heads of agencies under section 1213(g)(1).

(b) The Special Counsel shall take steps to ensure that any list or report made available to the public under this section does not contain any information the disclosure of which is prohibited by law or by Executive order requiring that information be kept secret in the interest of national defense or the conduct of foreign affairs. (Added Pub. L. 101–12, $3(a)(13), Apr. 10, 1989, 103 Stat. 29.)

erwise pot ansel shal conducta

SUBCHAPTER III—INDIVIDUAL RIGHT OF ACTION IN CERTAIN REPRISAL CASES

SUBCHAPTER REFERRED TO IN OTHER SECTIONS This subchapter is referred to in section 7121 of this title; title 12 sections 1441a, 1831j.

§ 1217. Transmittal of information to Congress

The Special Counsel or any employee of the Special Counsel designated by the Special Counsel, shall transmit to the Congress on the request of any committee or subcommittee thereof, by report, testimony, or otherwise, information and the Special Counsel's views on functions, responsibilities, or other matters relating to the Office. Such information shall be transmitted concurrently to the President and any other appropriate agency in the executive branch. (Added Pub. L. 101–12, 83(a)(13), Apr. 10, 1989, 103 Stat. 28.) $1218. Annual report

The Special Counsel shall submit an annual report to the Congress on the activities of the Special Counsel, including the number, types, and disposition of allegations of prohibited personnel practices filed with it, investigations conducted by it, cases in which it did not make a determination whether there are reasonable grounds to believe that a prohibited personnel practice has occurred, exists, or is to be taken within the 240-day period specified in section 1214(b)(2)(A)(i), and actions initiated by it before the Merit Systems Protection Board, as well as a description of the recommendations and reports made by it to other agencies pursuant to this subchapter, and the actions taken by the agencies as a result of the reports or recommendations. The report required by this section shall include whatever recommendations for legislation or other action by Congress the Special Counsel may consider appropriate. (Added Pub. L. 101-12, 53(a)(13), Apr. 10, 1989, 103 Stat. 29; amended Pub. L. 103-424, 53(e), Oct. 29, 1994, 108 Stat. 4363.)

§ 1221. Individual right of action in certain re

prisal cases (a) Subject to the provisions of subsection (b) of this section and subsection 1214(a)(3), an employee, former employee, or applicant for employment may, with respect to any personnel action taken, or proposed to be taken, against such employee, former employee, or applicant for employment, as a result of a prohibited personnel practice described in section 2302(b)(8), seek corrective action from the Merit Systems Protection Board.

(b) This section may not be construed to prohibit any employee, former employee, or applicant for employment from seeking corrective action from the Merit Systems Protection Board before seeking corrective action from the Special Counsel, if such employee, former employee, or applicant for employment has the right to appeal directly to the Board under any law, rule, or regulation.

(c)(1) Any employee, former employee, or applicant for employment seeking corrective ac

tion under subsection (a) may request that the Board order a stay of the personnel action involved.

(2) Any stay requested under paragraph (1) shall be granted within 10 calendar days (excluding Saturdays, Sundays, and legal holidays) after the date the request is made, if the Board determines that such a stay would be appropriate.

(3)(A) The Board shall allow any agency which would be subject to a stay under this subsection to comment to the Board on such stay request.

(B) Except as provided in subparagraph (C), a stay granted under this subsection shall remain in effect for such period as the Board determines to be appropriate.

(C) The Board may modify or dissolve a stay under this subsection at any time, if the Board determines that such a modification or dissolution is appropriate.

(d)(1) At the request of an employee, former employee, or applicant for employment seeking corrective action under subsection (a), the Board shall issue a subpoena for the attendance and testimony of any person or the production of documentary or other evidence from any person if the Board finds that the testimony or production requested is not unduly burdensome and appears reasonably calculated to lead to the discovery of admissible evidence.

(2) A subpoena under this subsection may be issued, and shall be enforced, in the same manner as applies in the case of subpoenas under section 1204.

(e)(1) Subject to the provisions of paragraph (2), in any case involving an alleged prohibited personnel practice as described under section 2302(b)(8), the Board shall order such corrective action as the Board considers appropriate if the employee, former employee, or applicant for employment has demonstrated that a disclosure described under section 2302(b)(8) was a contributing factor in the personnel action which was taken or is to be taken against such employee, former employee, or applicant. The employee may demonstrate that the disclosure was a contributing factor in the personnel action through circumstantial evidence, such as evidence that,

(A) the official taking the personnel action knew of the disclosure; and

(B) the personnel action occurred within a period of time such that a reasonable person could conclude that the disclosure was a contributing factor in the personnel action.

(2) Corrective action under paragraph (1) may not be ordered if the agency demonstrates by clear and convincing evidence that it would have taken the same personnel action in the absence of such disclosure.

(f)(1) A final order or decision shall be rendered by the Board as soon as practicable after the commencement of any proceeding under this section,

(2) A decision to terminate an investigation under subchapter II may not be considered in any action or other proceeding under this section.

(3) If, based on evidence presented to it under this section, the Merit Systems Protection Board determines that there is reason to believe that a current employee may have committed a

prohibited personnel practice, the Board shall refer the matter to the Special Counsel to investigate and take appropriate action under section 1215.

(g)(1)(A) If the Board orders corrective action under this section, such corrective action may include

(i) that the individual be placed, as nearly as possible, in the position the individual would have been in had the prohibited personnel practice not occurred; and

(ii) back pay and related benefits, medical costs incurred, travel expenses, and any other reasonable and foreseeable consequential changes.

(B) Corrective action shall include attorney's fees and costs as provided for under paragraphs (2) and (3).

(2) If an employee, former employee, or applicant for employment is the prevailing party before the Merit Systems Protection Board, and the decision is based on a finding of a prohibited personnel practice, the agency involved shall be liable to the employee, former employee, or applicant for reasonable attorney's fees and any other reasonable costs incurred.

(3) If an employee, former emloyee,1 or applicant for employment is the prevailing party in an appeal from the Merit Systems Protection Board, the agency involved shall be liable to the employee, former employee, or applicant for reasonable attorney's fees and any other reasonable costs incurred, regardless of the basis of the decision.

(h)(1) An employee, former employee, or applicant for employment adversely affected or aggrieved by a final order or decision of the Board under this section may obtain judicial review of the order or decision.

(2) A petition for review under this subsection shall be filed with such court, and within such time, as provided for under section 7703(b).

(i) Subsections (a) through (h) shall apply in any proceeding brought under section 7513(d) if, or to the extent that, a prohibited personnel practice as defined in section 2302(b)(8) is alleged.

(j) In determining the appealability of any case involving an allegation made by an individual under the provisions of this chapter, neither the status of an individual under any retirement system established under a Federal statute nor any election made by such individual under any such system may be taken into account. (Added Pub. L. 101–12, $3(a)(13), Apr. 10, 1989, 103 Stat. 29; amended Pub. L. 103-424, 884, 8(b), Oct. 29, 1994, 108 Stat. 4363, 4365.)

AMENDMENTS 1994–Subsec. (a)(1). Pub. L. 103-424, $4(a), added par. (1) and struck out former par. (1) which read as follows: “At the request of an employee, former employee, or applicant for employment seeking corrective action under subsection (a), the Board may issue a subpoena for the attendance and testimony of any person or the production of documentary or other evidence from any person if the Board finds that such subpoena is necessary for the development of relevant evidence.”

Subsec. (e)(1). Pub. L. 103-424, $4(b), which directed the amendment of section 1221(e)(i), without specifying

1 So in original. Probably should be “employee,”.

The authority of the President to prescribe rules is carried into sections 2951, 3302, 3304(a), 3306(a), 3321, 7152, 7153, 7321, and 7322 of this title.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

AMENDMENTS 1978–Pub. L. 95 454 substituted "Office of Personnel Management” for “Civil Service Commission”.

EFFECTIVE DATE OF 1978 AMENDMENT Amendment by Pub. L. 95 454 effective 90 days after Oct. 13, 1978, see section 907 of Pub. L. 95 454, set out as a note under section 1101 of this title.

the Code title to be amended, by inserting at end "The employee may demonstrate that the disclosure was a contributing factor in the personnel action through circumstantial evidence, such as evidence that

"(A) the official taking the personnel action knew of the disclosure; and

"(B) the personnel action occurred within a period of time such that a reasonable person could conclude that the disclosure was a contributing factor in the personnel action.”, was executed to subsec. (e)(1) of this section to reflect the probable intent of Congress. Subsec. (f)(3). Pub. L. 103-424, $4(c), added par. (3).

Subsec. (g). Pub. L. 103-424, $8(b), added par. (1) and redesignated former pars. (1) and (2) as (2) and (3), respectively,

EFFECTIVE DATE Subchapter effective 90 days following Apr. 10, 1989, see section 11 of Pub. L. 101–12, set out as an Effective Date of 1989 Amendment note under section 1201 of this title.

SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 1212, 1214, 1222, 2105, 2303, 7121 of this title; title 22 section 4139.

$ 1302. Regulations

(a) The Office of Personnel Management, subject to the rules prescribed by the President under this title for the administration of the competitive service, shall prescribe regulations for, control, supervise, and preserve the records of, examinations for the competitive service.

(b) The Office shall prescribe and enforce regulations for the administration of the provisions of this title, and Executive orders issued in furtherance thereof, that implement the Congressional policy that preference shall be given to preference eligibles in certification for appointment, and in appointment, reinstatement, reemployment, and retention, in the competitive service in Executive agencies, permanent or temporary, and in the government of the District of Columbia.

(c) The Office shall prescribe regulations for the administration of the provisions of this title that implement the Congressional policy that preference shall be given to preference eligibles in certification for appointment, and in appointment, reinstatement, reemployment, and retention, in the excepted service in Executive agencies, permanent or temporary, and in the government of the District of Columbia.

(d) The Office may prescribe reasonable procedure and regulations for the administration of its functions under chapter 15 of this title. (Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 401; Pub. L. 95-454, title IX, $906(a)(2), (3), Oct. 13, 1978, 92 Stat. 1224.)

HISTORICAL AND REVISION NOTES

Sec. 1301. Rules. 1302.

Regulations. 1303. Investigations; reports. 1304. Loyalty investigations; reports; revolving

fund. 1305. Administrative law judges. 1306. Oaths to witnesses. 1307. Minutes. (1308. Repealed.]

AMENDMENTS 1998–Pub. L. 105–362, title XIII, $ 1302(b)(2)(A), Nov. 10, 1998, 112 Stat. 3293, struck out item 1308 “Annual reports".

1978–Pub. L. 95–251, 82(c)(1), Mar. 27, 1978, 92 Stat. 183, substituted “Administrative law judges” for “Hearing examiners" in item 1305. $ 1301. Rules

The Office of Personnel Management shall aid the President, as he may request, in preparing the rules he prescribes under this title for the administration of the competitive service. (Pub. L. 89-554, Sept. 6, 1966, 80 Stat. 401; Pub. L. 95–454, title IX, 8906(a)(2), Oct. 13, 1978, 92 Stat.

Subsection (a) is based on former section 633(3) (less last 10 words). The regulation-making power conferred by that section covers the power conferred by former section 633(2)7 (last 17 words) which is, therefore, omitted. The requirement of notice is preserved in section 3304. The words “through its members or the examiners" are omitted as unnecessary in view of section 1104. The authority of the President to prescribe rules, based

on former section 633(1) is carried into sections 2951, 3302, 3304(a), 3306(a), 3321, 7152, 7153, 7321, and 7322 of this title.

In subsections (b)(d), the word “rules" is omitted as included in "regulations”.

The provisions of the Veterans' Preference Act of 1944 (former sections 851–869) to which the regulation-making authority of subsections (b) and (c) apply are carried into sections 2108, 3305(b), 3306(a)(2), 3308-3320, 3351, 3363, 3364, and 7701, subchapter I of chapter 35, and subchapter II of chapter 75 of this title. The first 76 words of former section 851 are added here to preserve the general statement of policy in the light of which the substantive provisions that formerly comprised the Veterans' Preference Act of 1944 are to be interpreted. See Elder v. Brannan, 241 U.S. 277, 286. In subsection (b), the words "in the competitive service in Executive agencies, permanent or temporary, and in the government of the District of Columbia”, and in subsection (c) the words "in the excepted service in Executive agencies, permanent or temporary, and in the government of the District of Columbia" are coextensive with and substituted for “in civilian positions in all establishments, agencies, bureaus, administrations, projects, and departments of the Government, permanent or temporary, and in either (a) the classified civil service; (b) the unclassified civil service; (c) any temporary or emergency establishment, agency, bureau, administration, project, and department created by Acts of Congress or Presidential Executive order", in view of the exclusion of positions in the legislative and judicial branches by former section 869.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

AMENDMENTS 1978-Subsecs. (a) to (d). Pub. L. 95–454 substituted “Office of Personnel Management” for “Civil Service Commission” and “Office” for “Commission” wherever appearing.

EFFECTIVE DATE OF 1978 AMENDMENT Amendment by Pub. L. 95–454 effective 90 days after Oct. 13, 1978, see section 907 of Pub. L. 95 454, set out as a note under section 1101 of this title,

EXECUTIVE ORDER NO. 10561 Ex. Ord. No. 10561, Sept. 13, 1954, 19 F.R. 5963, which related to official personnel folders, was revoked by section 2–201 of Ex. Ord. No. 12107, Dec. 28, 1978, 44 F.R. 1055, set out as a note under section 1101 of this title.

EXECUTIVE ORDER NO. 11397 Ex, Ord. No. 11397, Feb. 9, 1968, 33 F.R. 2833, formerly set out as a note under this section, which related to transitional appointments of veterans who served during the Vietnam Era, was revoked by Ex. Ord. No. 11521, Mar. 26, 1970, 35 F.R. 5311, set out as a note under section 3302 of this title.

SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 1303, 2302 of this title; title 18 section 1917; title 22 section 1438. 81303. Investigations; reports

The Office of Personnel Management, Merit Systems Protection Board, and Special Counsel may investigate and report on matters concerning

(1) the enforcement and effect of the rules prescribed by the President under this title for the administration of the competitive service and the regulations prescribed by the Office of Personnel Management under section 1302(a) of this title; and

(2) the action of an examiner, a board of examiners, and other employees concerning the

transfe? lated li tions, employ

The authority of the President to prescribe rules is carried into sections 2951, 3302, 3304(a), 3306(a), 3321, 7152, 7153, 7321, and 7322 of this title.

In paragraph (2), the words “in respect to the execution of this act” are changed to "concerning the execution of the provisions of this title that relate to the administration of the competitive service" to avoid having to refer in the text to the sections of this title into which the Civil Service Act, the act referred to, is codified. These sections are: 1101, 1102, 1105, 1302(a), 1303, 1307, 1308(a)(1), 2102, 2951, 3302, 3303, 3304(a), (d), 3305(a), 3306, 3318(a), 3319(a), 3321, 7152, 7153, 7321, 7322, and 7352. The words “the provisions of this title that relate to the administration of the competitive service" will include some of the sections derived from the Veterans' Preference Act of 1944 (former sections 851–869). They are based in part on former section 860 (codified in $ 1302(c)). The authorization in that section to make and enforce regulations for the competitive service would include the authority to investigate and report. The words “and other employees" are substituted for "and its own subordinates, and those in the public service" in view of the definition of "employee" in section 2105.

Standard changes are made to conform with the definition applicable and the style of this title as outlined in the preface to the report.

AMENDMENTS 1978-Pub. L. 95–454 substituted in opening par. “Office of Personnel Management, Merit Systems Protection Board, and Special Counsel” for “Civil Service Commission” and in par. (1) "Office of Personnel Management” for “Commission”.

EFFECTIVE DATE OF 1978 AMENDMENT Amendment by Pub. L. 95-454 effective 90 days after Oct. 13, 1978, see section 907 of Pub. L. 95–454, set out as a note under section 1101 of this title. $ 1304. Loyalty investigations; reports; revolving

fund (a) The Office of Personnel Management shall conduct the investigations and issue the reports required by the following statutes

(1) sections 272b, 2816(e), and 290a of title 22; (2) section 1874(c) of title 42; and

(3) section 1203(e) of title 6, District of Columbia Code. (b) When an investigation under subsection (a) of this section develops data indicating that the loyalty of the individual being investigated is questionable, the Office shall refer the matter to the Federal Bureau of Investigation for a full field investigation, a report of which shall be furnished to the Office for its information and appropriate action.

(c) When the President considers it in the national interest, he may have the investigations of a group or class, which are required by subsection (a) of this section, made by the Federal Bureau of Investigation rather than the Office.

Office and Civil Service of the House of Representatives.

(f) An agency may use available appropriations to reimburse the Office or the Federal Bureau of Investigation for the cost of investigations, training, and functions performed for them under this section, or to make advances toward their cost. These advances and reimbursements shall be credited directly to the applicable appropriations of the Office or the Federal Bureau of Investigation.

(g) This section does not affect the responsibility of the Federal Bureau of Investigation to investigate espionage, sabotage, subversive acts. (Pub. L. 89_554, Sept. 6, 1966, 80 Stat. 401; Pub. L. 91–189, S1, Dec. 30, 1969, 83 Stat. 851; Pub. L. 91-648, title V, $ 510, Jan. 5, 1971, 84 Stat. 1928; Pub. L. 95 454, title IX, 8906(a)(2), (3), Oct. 13, 1978, 92 Stat. 1224; Pub. L. 96-60, title II, $ 203(a)(2), Aug. 15, 1979, 93 Stat. 398; Pub. L. 97-412, $1(a), Jan. 3, 1983, 96 Stat. 2047; Pub. L. 98–224, 85(b)(1), Mar. 2, 1984, 98 Stat. 48; Pub. L. 103-437, $3(a), Nov. 2, 1994, 108 Stat. 4581; Pub. L. 104-66, title II, § 2182, Dec. 21, 1995, 109 Stat. 732; Pub. L. 104-208, div. A, title I, § 101(f) [title IV, $ 421], Sept. 30, 1996, 110 Stat. 3009–314, 3009–343.)

HISTORICAL AND REVISION NOTES

(d) The investigation and report required by subsection (a) of this section shall be made by the Federal Bureau of Investigation rather than the Office for those specific positions which the Secretary of State certifies are of a high degree of importance or sensitivity.

(e)(1) A revolving fund is available, to the Office without fiscal year limitation, for financing investigations, training, and such other functions as the Office is authorized or required to perform on a reimbursable basis, including personnel management services performed at the request of individual agencies (which would otherwise be the responsibility of such agencies), or at the request of nonappropriated fund instrumentalities. However, the functions which may be financed in any fiscal year by the fund are restricted to those functions which are covered by the budget estimates submitted to the Congress for that fiscal year. To the maximum extent feasible, each individual activity shall be conducted generally on an actual cost basis over a reasonable period of time.

(2) The capital of the fund consists of the aggregate of

(A) appropriations made to provide capital for the fund, which appropriations are hereby authorized, and

(B) the sum of the fair and reasonable value of such supplies, equipment, and other assets as the Office from time to time transfers to the fund (including the amount of the unexpended balances of appropriations or funds relating to activities the financing of which is transferred to the fund) less the amount of related liabilities, the amount of unpaid obligations, and the value of accrued annual leave of employees, which are attributable to the activities the financing of which is transferred to the fund. (3) The fund shall be credited with

(A) advances and reimbursements from available funds of the Office or other agencies, or from other sources, for those services and supplies provided at rates estimated by the Office as adequate to recover expenses of operation (including provision for accrued annual leave of employees and depreciation of equipment); and

(B) receipts from sales or exchanges of property, and payments for loss of or damage to property, accounted for under the fund.

(4) Any unobligated and unexpended balances in the fund which the Office determines to be in excess of amounts needed for activities financed by the fund shall be deposited in the Treasury of the United States as miscellaneous receipts.

(5) The Office shall prepare a business-type budget providing full disclosure of the results of operations for each of the functions performed by the Office and financed by the fund, and such budget shall be transmitted to the Congress and considered, in the manner prescribed by law for wholly owned Government corporations.

(6) The Comptroller General of the United States shall, as a result of his periodic reviews of the activities financed by the fund, report and make such recommendations as he deems appropriate to the Committee on Governmental Affairs of the Senate and the Committee on Post

Apr. 5, 1952, ch. 159, $1 (pro

visos), 66 Stat. 44. July 31, 1953, ch. 283, 99, 67

Stat. 241. June 5, 1952, ch. 369, $701

(par. under “Civil Service Commission"), 66 Stat.

107. Apr. 5, 1952, ch. 159, $4, 66

Stat. 44. Apr. 5, 1952, ch. 159, 83, 66

Stat. 44.

Subsection (a) is based on section 1 of the Act of April 5, 1952, as amended, and is added for clarity. In subsection (a), the reference to section 10(b)(5)(B)(i) and (B)(ii) of the Act of August 1, 1946 (60 Stat. 766) is omitted because of the amendment of the Act of April 5, 1952, by the Act of July 31, 1953, ch. 283, 67 Stat. 240, and the reenactment of the provisions of the Act of April 5, 1952, insofar as they relate to the Atomic Energy Commission as section 145 of the Atomic Energy Act of 1954 (68 Stat. 942; 42 U.S.C. 2165). The references to section 1(2) of the Act of May 22, 1947 (61 Stat. 125), section 1 of the joint resolution of May 21, 1947 (61 Stat. 125), and section 110(c) of the Act of April 3, 1948 (62 Stat. 137) are omitted as these Acts were repealed by the Act of Aug. 26, 1954, ch. 937 $ 542(a) (1), (2), and (4), 68 Stat. 861. Reference to section 510 of the Mutual Security Act of 1951 (65 Stat. 381) is omitted because this section was replaced by section 531 of the Mutual Security Act of 1954 (68 Stat. 859) and the latter was repealed by the Act of Sept. 4, 1961, Pub. L. 87–195, $642(2), 75 Stat. 460.

In subsection (d), the references to section 10(b)(5)(B)(i) and (ii) of the Atomic Energy Act of 1946, section 510 of the Mutual Security Act of 1951, a majority of the members of the Atomic Energy Commission, and the Director of Mutual Security (which was changed to Director of the International Cooperation Administration on authority of section 8 of 1953 Reorg. Plan No. 7, 67 Stat. 641, and Executive Order 10610 of May 9, 1955) are omitted because of the disposition of the two sections as explained with reference to subsection (a).

In subsection (e), the words “There is established” are omitted as executed.

Page 7

ABOLITION OF HOUSE COMMITTEE ON POST OFFICE AND

CIVIL SERVICE Committee on Post Office and Civil Service of House of Representatives abolished by House Resolution No. 6, One Hundred Fourth Congress, Jan. 4, 1995. References to Committee on Post Office and Civil Service treated as referring to Committee on Government Reform and Oversight, see section 1(b) of Pub. L. 104-14, set out as a note preceding section 21 of Title 2, The Congress. Committee on Government Reform and Oversight of House of Representatives changed to Committee on Government Reform of House of Representatives by House Resolution No. 5, One Hundred Sixth Congress, Jan, 6, 1999.

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in section 1104 of this title.

$ 1305. Administrative law judges For the purpose

of sections 3105, 3344, 4301(2)(D), and 5372 of this title and the provisions of section 5335(a)(B) of this title that relate to administrative law judges, the Office of Personnel Management may, and for the purpose of section 7521 of this title, the Merit Systems Protection Board may investigate, prescribe regulations, appoint advisory committees as necessary, recommend legislation, subpena witnesses and records, and pay witness fees as established for the courts of the United States. (Pub. L. 89-554, Sept. 6, 1966, 80 Stat. 402; Pub. L. 90–83, $1(3), Sept. 11, 1967, 81 Stat. 196; Pub. L. 95–251, $2(a)(1), (b)(1), Mar. 27, 1978, 92 Stat. 183; Pub. L. 95 454, title VIII, $ 801(a)(3)(B)(iii), title IX, 8906(a)(12), Oct. 13, 1978, 92 Stat. 1221, 1225; Pub. L. 102–378, $2(4), Oct. 2, 1992, 106 Stat. 1346; Pub. L. 105–362, title XIII, § 1302(a), Nov. 10, 1998, 112 Stat. 3293.)

In subsection (g), the reference to statutes other than this section is omitted because nothing in those statutes affect the responsibility in question.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

REFERENCES IN TEXT Section 1874(c) of title 42, referred to in subsec. (a)(2), which related to clearance of National Science Foundation personnel, was repealed by Pub. L. 96-516, $21(b)(1), Dec. 12, 1980, 94 Stat. 3010.

AMENDMENTS 1996Subsec. (e)(1). Pub. L. 104–208 inserted ", including personnel management services performed at the request of individual agencies (which would otherwise be the responsibility of such agencies), or at the request of nonappropriated fund instrumentalities" before period at end of first sentence.

1995—Subsec. (e)(6). Pub. L. 104-66 struck out before period at end "at least once every three years”.

1994—Subsec. (e)(6). Pub. L. 103–437 substituted "Committee on Governmental Affairs of the Senate and the Committee on Post Office and Civil Service of the House" for “Committees on Post Office and Civil Service of the Senate and House".

1984–Subsec. (e)(1). Pub. L. 98–224 struck out cl. (i) designation and struck out cl. (ii) which provided that participation fees imposed by the President's Commission on Executive Exchange for private sector participation in its Executive Exchange Program be collected and credited to the fund, and be available for the costs of education and related travel of exchanged executives, for printing without regard to section 501 of title 44, and, in such amounts as specified in appropriations Acts, for entertainment expenses. See section 4109(d) of this title.

1983—Subsec. (e)(1). Pub. L. 97–412 designated existing provisions as cl. (i) and added cl. (ii).

1979/Subsec. (a)(1). Pub. L. 96-60 struck out reference to section 1434 of title 22.

1978–Subsecs. (a) to (f). Pub. L. 95–454 substituted “Office of Personnel Management” for “Civil Service Commission” and “Office” for “Commission” wherever appearing.

1971--Subsec. (e). Pub. L. 91–648 struck out in par. (1) “of $4,000,000" after “revolving fund” and inserted in par. (2)(A)", which appropriations are hereby authorized”.

1969—Subsec. (e). Pub. L. 91–189, $1(a), increased the scope of reimbursable services for which the fund may be used, restricted reimbursement to services which were included in the budget estimates submitted to Congress for that fiscal year, inserted a list of components which comprise the fund, specifically listed those items that would be credited directly to the capital fund, required that a budget be prepared by the Commission, and directed the Comptroller General as a result of the activities financed to make recommendations to the committees on Post Office and Civil Service of the Senate and House of Representatives at least once every three years.

Subsec. (f). Pub. L. 91–189, $1(b), authorized an agency to use available appropriations to reimburse the Commission or the Federal Bureau of Investigation for the cost of training and functions performed.

EFFECTIVE DATE OF 1983 AMENDMENT Section 1(b) of Pub. L. 97-412 provided that: "The authority granted in subsection (a) [amending this section) shall terminate on December 31, 1983."?

EFFECTIVE DATE OF 1979 AMENDMENT Amendment by Pub. L. 96-60 effective Oct. 1, 1979, see section 209 of Pub. L. 96-60, set out as a note under section 1471 of Title 22, Foreign Relations and Intercourse.

EFFECTIVE DATE OF 1978 AMENDMENT Amendment by Pub. L. 95 454 effective 90 days after Oct. 13, 1978, see section 907 of Pub. L. 95–454, set out as a note under section 1101 of this title.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

1967 ACT This section amends 5 U.S.C. 1305 to correct a typographical error.

AMENDMENTS 1998–Pub. L. 105–362 struck out "require reports by agencies, issue reports, including an annual report to Congress," after “may investigate,”'.

1992—Pub. L. 102–378 substituted "sections 3105” for “section 3105”.

1978–Pub. L. 95 454 substituted provisions respecting functions pursuant to specified sections of this title of the Office of Personnel Management and the Merit Systems Protection Board for provisions respecting the functions pursuant to specified sections of this title of the Civil Service Commission.

Pub. L. 95–251 substituted "Administrative law judges” for “Hearing examiners” in section catchline and "administrative law judges” for “hearing examiners" in text.

EFFECTIVE DATE OF 1978 AMENDMENT Amendment by section 801(a)(3)(B)(iii) of Pub. L. 95-454 substituting "5372" for 15362" effective on first

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 402.)

HISTORICAL AND REVISION NOTES

day of first applicable pay period beginning on or after the 90th day after Oct. 13, 1978, see section 801(a)(4) of Pub. L. 95 454, set out as an Effective Date note under section 5361 of this title.

Amendment by section 906(a)(12) of Pub. L. 95 454 respecting functions of the Office and the Board effective 90 days after Oct. 13, 1978, see section 907 of Pub. L. 95–454, set out as a note under section 1101 of this title.

El Serti TOATE 2 L. 1042

le 2. TE

and Ore

Commit EDDIE Ith Ca

EFFECTIVE DATE OF 1967 AMENDMENT Amendment by Pub. L. 90–83 effective as of Sept. 6, 1966, for all purposes, see section 9(h) of Pub. L. 90-83, set out as a note under section 5102 of this title.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

TERMINATION OF ADVISORY COMMITTEES Advisory committees in existence on Jan. 5, 1973, excluding committees composed wholly of full-time officers or employees of the Federal Government, to terminate not later than the expiration of the 2-year period following Jan. 5, 1973, unless, in the case of a committee established by the President or an officer of the Federal Government, such committee is renewed by appropriate action prior to the expiration of such 2-year period, or in the case of a committee established by the Congress, its duration is otherwise provided for by law. See section 14 of Pub. L. 92–463, Oct. 6, 1972, 86 Stat. 776, set out in the Appendix to this title.

TRANSFER OF FUNCTIONS Functions vested by statute in United States Civil Service Commission transferred to Director of Office of Personnel Management (except as otherwise specified) by Reorg. Plan No. 2 of 1978, § 102, 43 F.R. 36037, 92 Stat. 3783, set out under section 1101 of this title, effective Jan. 1, 1979, as provided by section 1–102 of Ex. Ord. No. 12107, Dec. 28, 1978, 44 F.R. 1055, set out under section 1101 of this title.

[$ 1308. Repealed. Pub. L. 105–362, title XIII,

$ 1302(b)(1), Nov. 10, 1998, 112 Stat. 3293]

SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 559 of this title.

Section, Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 402; Pub. L. 91-93, title I, § 104, Oct. 20, 1969, 83 Stat. 138; Pub. L. 93–156, Nov. 21, 1973, 87 Stat. 623; Pub. L. 95 454, title IX, $ 906(a)(2), (3), Oct. 13, 1978, 92 Stat. 1224; Pub. L. 96–54, $2(a)(3), Aug. 14, 1979, 93 Stat. 381; Pub. L. 96-470, title I, $121, Oct. 19, 1980, 94 Stat. 2241, required annual reports on operation of subchapter III of chapter 83 of this title and chapters 87 and 89 of this title.

CHAPTER 15–POLITICAL ACTIVITY OF CERTAIN STATE AND LOCAL EMPLOYEES

Definitions. Influencing elections; taking part in political

campaigns; prohibitions; exceptions.
Nonpartisan candidacies permitted.
Investigations; notice of hearing.
Hearings; adjudications; notice of determina-

tions. Orders; withholding loans or grants; limita

tions. Subpenas and depositions. Judicial review.

1974-Pub. L. 93-443, title IV, § 401(b)(2), Oct. 15, 1974, 88 Stat. 1290, substituted “candidacies” for “political activity" in item 1503,

CHAPTER REFERRED TO IN OTHER SECTIONS

This chapter is referred to in sections 1212, 1215, 1216, 1302, 4703 of this title; title 23 section 142; title 42 sections 2996e, 3056, 4728, 9851, 9918.

The section is rewritten to reflect expansion of authority of the Commission to include its Chairman under section 2(c) of 1949 Reorg. Plan No. 5.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

AMENDMENTS 1978—Pub. L. 95-454 substituted provisions respecting powers of the Director of the Office of Personnel Management in administering oaths in matters before the Office for provisions respecting powers of the Chairman of the Civil Service Commission and each Commissioner in administering oaths in matters before the Commission.

For the purpose of this chapter

(1) “State” means a State or territory or possession of the United States;

(2) “State or local agency” means the executive branch of a State, municipality, or other political subdivision of a State, or an agency or department thereof;

(3) "Federal agency” means an Executive agency or other agency of the United States, but does not include a member bank of the Federal Reserve System; and

(4) “State or local officer or employee" means an individual employed by a State or local agency whose principal employment is in

connection with an activity which is financed in whole or in part by loans or grants made by the United States or a Federal agency, but does not include

(A) an individual who exercises no functions in connection with that activity; or

(B) an individual employed by an educational or research institution, establishment, agency, or system which is supported in whole or in part by a State or political subdivision thereof, or by a recognized religious, philanthropic, or cultural organiza

tion. (Pub. L. 89–554, Sept. 1966, 80 Stat. 403; Pub. L. 93 443, title IV, $ 401(c), Oct. 15, 1974, 88 Stat. 1290.)

his opinions on political subjects and candidates.

(c) Subsection (a)(3) of this section does not apply to

(1) the Governor or Lieutenant Governor of a State or an individual authorized by law to act as Governor;

(2) the mayor of a city;

(3) a duly elected head of an executive department of a State or municipality who is not classified under a State or municipal merit or civil-service system; or

(4) an individual holding elective office. (Pub. L. 89_554, Sept. 6, 1966, 80 Stat. 404; Pub. L. 93-443, title IV, § 401(a), Oct. 15, 1974, 88 Stat. 1290.)

HISTORICAL AND REVISION NOTES

Revised Statutes and

Statutes at Large

5 U.S.C. 118k(a) (less July 19, 1940, ch. 640, $4 1st 41 words).

"Sec. 12(a) (less 1st 41 words)", 54 Stat. 767.

5 U.S.C, 118k-1 (as

applicable to 5 U.S.C. 118k).

July 19, 1940, ch. 640, 84

“Sec. 19", 54 Stat. 772. July 19, 1940, ch. 640, $4

"Sec. 12(1)", 54 Stat. 770. July 19, 1940, ch. 640, $4

“Sec 12(a) (1st 41 words),

(e)”, 54 Stat. 767, 770. Oct. 24, 1942, ch. 620 “Sec. 21

(as applicable to $12 of the Act of Aug. 2, 1939; added July 19, 1940, ch. 640, $4, 54 Stat. 767)", 56

Stat. 986. July 19, 1940, ch. 640, $4

“Sec. 15 (as applicable to $12 of the Act of Aug. 2, 1939; added July 19, 1940, ch. 640, $4, 54 Stat. 767)", 54 Stat. 771.

In paragraph (4)(B), the words “or by any Territory or Territorial possession of the United States" are omitted in view of the definition of "State" in paragraph (1).

In paragraph (5), the words “July 19, 1940” are substituted for "at the time this section takes effect".

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

AMENDMENTS 1974-Par. (5). Pub. L. 93–443 struck out par. (5) which defined "an active part in political management or in political campaigns",

EFFECTIVE DATE OF 1974 AMENDMENT Amendment by Pub. L. 93-443 effective Jan. 1, 1975, see section 410(a) of Pub. L. 93–443, set out as a note under section 431 of Title 2, The Congress.

In subsection (a), the term “State or local officer or employee”, defined in section 1501, is substituted for the first 41 words of former section 118k(a). The words "any part of his salary or compensation" are omitted as included in "anything of value".

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

AMENDMENTS 1974/Subsec. (a)(3). Pub, L. 93-443 substituted "be a candidate for elective office” for “take an active part in political management or in political campaigns”.

EFFECTIVE DATE OF 1974 AMENDMENT Amendment by Pub. L. 93-443 effective Jan. 1, 1975, see section 410(a) of Pub. L. 93-443, set out as a note under section 431 of Title 2, The Congress.

SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 1503, 1504, 1505, 1506 of this title; title 42 sections 9851, 9918. § 1503. Nonpartisan candidacies permitted

Section 1502(a)(3) of this title does not prohibit any State or local officer or employee from being a candidate in any election if none of the candidates is to be nominated or elected at such election as representing a party any of whose candidates for Presidential

elector received votes in the last preceding election at which Presidential electors were selected. (Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 404; Pub. L. 93-443, title IV, 8401(b)(1), Oct. 15, 1974, 88 Stat. 1290.)

$ 1502. Influencing elections; taking part in polit

ical campaigns; prohibitions; exceptions (a) A State or local officer or employee may not

(1) use his official authority or influence for the purpose of interfering with or affecting the result of an election or a nomination for office;

(2) directly or indirectly coerce, attempt to coerce, command, or advise a State or local officer or employee to pay, lend, or contribute anything of value to a party, committee, organization, agency, or person for political purposes; or

(3) be a candidate for elective office. (b) A State or local officer or employee retains the right to vote as he chooses and to express

SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 1505, 1508 of this title.

AMENDMENTS 1974-Pub. L. 93 443 substituted "candidacies” for "political activity” in section catchline and provision permitting nonpartisan candidacies for prior provision permitting political activity in connection with (1) an election and the preceding campaign if none of the candidates was to be nominated or elected at that election as representing a party any of whose candidates for presidential elector received votes in the last preceding election at which presidential electors were selected, or (2) a question which was not specifically identified with a National or State political party and deeming questions relating to constitutional amendments, referendums, approval of municipal ordinances, and others of a similar character as not specifically identified with a National or State political party.

EFFECTIVE DATE OF 1974 AMENDMENT Amendment by Pub. L. 93 443 effective Jan. 1, 1975, see section 410(a) of Pub. L. 93-443, set out as a note under section 431 of Title 2, The Congress.

Efice. 4; Pub. I - 88 Stat

$ 1505. Hearings; adjudications; notice of deter

minations Either the State or local officer or employee or the State or local agency employing him, or both, are entitled to appear with counsel at the hearing under section 1504 of this title, and be heard. After this hearing, the Merit Systems Protection Board shall

(1) determine whether a violation of section 1502 of this title has occurred;

(2) determine whether the violation warrants the removal of the officer or employee from his office or employment; and

(3) notify the officer or employee and the agency of the determination by registered or

certified mail. (Pub. L. 89-554, Sept. 6, 1966, 80 Stat. 405; Pub. L. 95–454, title IX, $ 906(a)(6), Oct. 13, 1978, 92 Stat. 1225.)

HISTORICAL AND REVISION NOTES

Olïcer cituted is The more

5 U.S.C. 118k(b) (3d

sentence, less 4th, through 17th words, and 4th sen- tence).

$ 1504. Investigations; notice of hearing

When a Federal agency charged with the duty of making a loan or grant of funds of the United States for use in an activity by a State or local officer or employee has reason to believe that the officer or employee has violated section 1502 of this title, it shall report the matter to the Special Counsel. On receipt of the report or on receipt of other information which seems to the Special Counsel to warrant an investigation, the Special Counsel shall investigate the report and such other information and present his findings and any charges based on such findings to the Merit Systems Protection Board, which shall

(1) fix a time and place for a hearing; and

(2) send, by registered or certified mail, to the officer or employee charged with the violation and to the State or local agency employing him a notice setting forth a summary of the alleged violation and giving the time and

place of the hearing. The hearing may not be held earlier than 10 days after the mailing of the notice. (Pub. L. 89-554, Sept. 6, 1966, 80 Stat. 405; Pub. L. 95-454, title IX, $ 906(a)(7), Oct. 13, 1978, 92 Stat. 1225.)

July 19, 1940, ch. 640, $4

“Sec. 12(b) (3d sentence, less 4th through 17th words, and 4th

sentence)”, 54 Stat. 768. June 11, 1960, Pub. L. 86–507,

$1(1), 74 Stat. 200.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

1978Pub. L. 95 454 substituted “Merit Systems Protection Board” for “Civil Service Commission”.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

AMENDMENTS 1978-Pub. L. 95-454 substituted provisions respecting the functions of the Special Counsel and the Merit Systems Protection Board for provisions respecting the functions of the Civil Service Commission.

EFFECTIVE DATE OF 1978 AMENDMENT Amendment by Pub. L. 95–454 effective 90 days after Oct. 13, 1978, see section 907 of Pub, L. 95-454, set out as a note under section 1101 of this title.

$ 1506. Orders; withholding loans or grants; limi

tations (a) When the Merit Systems Protection Board finds

(1) that a State or local officer or employee has not been removed from his office or employment within 30 days after notice of a determination by the Board that he has violated section 1502 of this title and that the violation warrants removal; or

(2) that the State or local officer or employee has been removed and has been appointed within 18 months after his removal to an office or employment in the same State in a State or local agency which does not receive

loans or grants from a Federal agency; the Board shall make and certify to the appropriate Federal agency an order requiring that agency to withhold from its loans or grants to the State or local agency to which notice was

A party
d the Me sation 15

terminati Niew the States Die the State

given an amount equal to 2 years' pay at the rate the officer or employee was receiving at the time of the violation. When the State or local agency to which appointment within 18 months after removal has been made is one that receives loans or grants from a Federal agency, the Board order shall direct that the withholding be made from that State or local agency.

(b) Notice of the order shall be sent by registered or certified mail to the State or local agency from which the amount is ordered to be withheld. After the order becomes final, the Federal agency to which the order is certified shall withhold the amount in accordance with the terms of the order. Except as provided by section 1508 of this title, a determination of order of the Board becomes final at the end of 30 day after mailing the notice of the determination or order.

(c) The Board may not require an amount to be withheld from a loan or grant pledged by a State or local agency as security for its bonds or notes if the withholding of that amount would jeopardize the payment of the principal or interest on the bonds or notes. (Pub. L. 89-554, Sept. 6, 1966, 80 Stat. 405; Pub. L. 95 454, title IX, $906(a)(6), Oct. 13, 1978, 92 Stat. 1225.)

Board may invoke the aid of a court of the United States in requiring the attendance and testimony of witnesses and the production of documentary evidence. In case of contumacy or refusal to obey a subpena issued to a person, the United States District Court within whose jurisdiction the inquiry is carried on may issue an order requiring him to appear before the Board, or to produce documentary evidence if so ordered, or to give evidence concerning the matter in question; and any failure to obey the order of the court may be punished by the court as a contempt thereof.

(b) The Board may order testimony to be taken by deposition at any stage of a proceeding or investigation before it as a result of this chapter. Depositions may be taken before an individual designated by the Board and having the power to administer oaths. Testimony shall be reduced to writing by the individual taking the deposition, or under his direction, and shall be subscribed by the deponent. Any person may be compelled to appear and depose and to produce documentary evidence before the Board as provided by this section.

(c) A person may not be excused from attending and testifying or from producing documentary evidence or in obedience to a subpena on the ground that the testimony or evidence, documentary or otherwise required of him may tend to incriminate him or subject him to a penalty or forfeiture for or on account of any transaction, matter, or thing concerning which he is compelled to testify, or produce evidence, documentary or otherwise, before the Board in obedience to a subpena issued by it. A person so testifying is not exempt from prosecution and punishment for perjury committed in so testifying. (Pub. L. 89-554, Sept. 6, 1966, 80 Stat. 406; Pub. L. 95-454, title IX, 8906(a)(6), Oct. 13, 1978, 92 Stat. 1225.)

be recor na mad record in

HISTORICAL AND REVISION NOTES

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

HISTORICAL AND REVISION NOTES

1978Subsec. (a). Pub. L. 95 454 substituted “Merit Systems Protection Board” for “Civil Service Commission” and “Board” for “Commission”, respectively, wherever appearing.

Subsecs. (b), (c). Pub. L. 95 454 substituted "Board'' for “Commission".

Revised Statutes and

Statutes at Large

EFFECTIVE DATE OF 1978 AMENDMENT Amendment by Pub. L. 95–454 effective 90 days after Oct. 13, 1978, see section 907 of Pub. L. 95–454, set out as a note under section 1101 of this title.

In subsection (a), the word "affirmation" is omitted as included in "oath” on authority of section 1 of title 1, United States Code. The title of the court is changed to conform to title 28.

In subsection (c), the prohibition is restated in positive form.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report,

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in section 1508 of this title.

$ 1507. Subpenas and depositions

(a) The Merit Systems Protection Board may require by subpena the attendance and testimony of witnesses and the production of documentary evidence relating to any matter before it as a result of this chapter. Any member of the Board may sign subpenas, and members of the Board and its examiners when authorized by the Board may administer oaths, examine witnesses, and receive evidence. The attendance of witnesses and the production of documentary evidence may be required from any place in the United States at the designated place of hearing. In case of disobedience to a subpena, the

AMENDMENTS 1978–Subsec. (a). Pub. L. 95 454 substituted “Merit Systems Protection Board” and “Board” for "Civil Service Commission” and “Commission", respectively, wherever appearing.

Subsecs. (b), (c). Pub. L. 95 454 substituted “Board" for “Commission” wherever appearing.

EFFECTIVE DATE OF 1978 AMENDMENT Amendment by Pub. L. 95-454 effective 90 days after Oct. 13, 1978, see section 907 of Pub. L. 95-454, set out as a note under section 1101 of this title.

Page 8

of the _nce ani ction di maco e 3on, the

Sections 346 and 347 of title 28 referred to in former section 118k(c) were repealed by the Act of June 25, 1948, ch. 646, $ 39, 62 Stat. 862, and are now covered by section 1254 of title 28. The titles of the courts are changed to conform to title 28.

In the reference to filing a written petition, “written” is omitted as unnecessary.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

1978—Pub. L. 95 454 substituted “Merit Systems Protection Board” and “Board” for “Civil Service Commission” and “Commission”, respectively, wherever appearing.

EFFECTIVE DATE OF 1978 AMENDMENT Amendment by Pub. L. 95 454 effective 90 days after Oct. 13, 1978, see section 907 of Pub. L. 95–454, set out as a note under section 1101 of this title.

SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 1506 of this title,

Subpart A-General Provisions

..........................................

$ 1508. Judicial review

A party aggrieved by a determination or order of the Merit Systems Protection Board under section 1504, 1505, or 1506 of this title may, within 30 days after the mailing of notice of the determination or order, institute proceedings for review thereof by filing a petition in the United States District Court for the district in which the State or local officer or employee resides. The institution of the proceedings does not operate as a stay of the determination or order unless

(1) the court specifically orders a stay; and

(2) the officer or employee is suspended from his office or employment while the proceed

ings are pending. A copy of the petition shall immediately be served on the Board, and thereupon the Board shall certify and file in the court a transcript of the record on which the determination or order was made. The court shall review the entire record including questions of fact and questions of law. If application is made to the court for leave to adduce additional evidence, and it is shown to the satisfaction of the court that the additional evidence may materially affect the result of the proceedings and that there were reasonable grounds for failure to adduce this evidence in the hearing before the Board, the court may direct that the additional evidence be taken before the Board in the manner and on the terms and conditions fixed by the court. The Board may modify its findings of fact or its determination or order in view of the additional evidence and shall file with the court the modified findings, determination, or order; or the modified findings of fact, if supported by substantial evidence, are conclusive. The court shall affirm the determination or order, or the modified determination or order, if the court determines that it is in accordance with law. If the court determines that the determination or order, or the modified determination or order, is not in accordance with law, the court shall remand the proceeding to the Board with directions either to make a determination or order determined by the court to be lawful or to take such further proceedings as, in the opinion of the court, the law requires. The judgment and decree of the court are final, subject to review by the appropriate United States Court of Appeals as in other cases, and the judgment and decree of the court of appeals are final, subject to review by the Supreme Court of the United States on certiorari or certification as provided by section 1254 of title 28. If a provision of this section is held to be invalid as applied to a party by a determination or order of the Board, the determination or order becomes final and effective as to that party as if the provision had not been enacted. (Pub. L. 89-554, Sept. 6, 1966, 80 Stat. 406; Pub. L. 95_454, title IX, 8906(a)(6), Oct. 13, 1978, 92 Stat.

....................................................

Chap.

Sec. 21. Definitions

2101 23. Merit system principles

2301 29. Commissions, Oaths, Records, and Reports

2901 Subpart B-Employment and Retention Authority for Employment

3101 33. Examination, Selection, and Placement

3301 34. Part-time career employment opportunities

3401 35. Retention Preference, Restoration, and Reemployment

3501 Subpart C-Employee Performance 41. Training

4101 43. Performance Appraisal

4301 45. Incentive Awards

4501 47. Personnel Research Programs and Demonstration Projects

4701 Subpart D-Pay and Allowances 51. Classification

5101 Pay Rates and Systems

5301 [54. Repealed.] 55. Pay Administration

5501 57.

Travel, Transportation, and Sub- sistence

5701 59. Allowances

5901 Subpart E-Attendance and Leave 61. Hours of Work

6101 63. Leave

6301 Subpart F-Labor-Management and Employee

Relations 71. Labor-Management Relations .......... 7101 72. Antidiscrimination; Right to Petition Congress

7201 73. Suitability, Security, and Conduct 7301 75. Adverse Actions

7501 77. Appeals

7701 79. Services to Employees

7901

........................................

...............................................

............................................

.....................................

....................................................

......................................

Chap.

Sec. 81. Compensation for Work Injuries 8101 83. Retirement

8301 84. Federal Employees' Retirement System

8401 85. Unemployment Compensation ......... 8501 87. Life Insurance

8701 89. Health Insurance

8901 90. Long-Term Care Insurance

9001 Subpart H-Access to Criminal History Record

Information 91. Access to Criminal History Records

for National Security and Other Purposes

9101 Subpart I-Miscellaneous 95. Personnel flexibilities relating 1 to

the Internal Revenue Service 9501

$ 2101. Civil service; armed forces; uniformed

services For the purpose of this title

(1) the “civil service" consists of all appointive positions in the executive, judicial, and legislative branches of the Government of the United States, except positions in the uniformed services;

(2) "armed forces” means the Army, Navy, Air Force, Marine Corps, and Coast Guard; and

(3) "uniformed services" means the armed forces, the commissioned corps of the Public Health Service, and the commissioned corps of the National Oceanic and Atmospheric Admin

istration. (Pub. L. 89-554, Sept. 6, 1966, 80 Stat. 408; Pub. L. 90–83, $1(4), Sept. 11, 1967, 81 Stat. 196; Pub. L. 96–54, $2(a)(4), Aug. 14, 1979, 93 Stat. 381.)

HISTORICAL AND REVISION NOTES

1966 ACT The section is supplied to establish basis of reference to employees in this title.

AMENDMENTS 2000—Pub. L. 106-398, $1 [[div. A], title X, $ 1076(1)(1)(B)], Oct. 30, 2000, 114 Stat. 1654, 1654A-282, substituted “and Other Purposes” for “Purposes” in item for chapter 91.

Pub. L. 106–265, title I, $1002(b), Sept. 19, 2000, 114 Stat. 769, added item for chapter 90.

1998—Pub. L. 105–206, title I, $1201(b), July 22, 1998, 112 Stat. 719, added items for subpart I and chapter 95.

1993Pub. L. 103-89, 83(a)(2), Sept. 30, 1993, 107 Stat. 981, struck out item for chapter 54 “Performance Management and Recognition System”.

1986—Pub. L. 99-335, title I, $ 101(b), June 6, 1986, 100 Stat. 588, added item for chapter 84.

1985-Pub. L. 99–169, title VIII, $ 801(b), Dec. 4, 1985, 99 Stat. 1010, added items for subpart H and chapter 91.

1984—Pub. L. 98-615, title II, $ 201(b), Nov. 8, 1984, 98 Stat. 3214, substituted “Performance Management and Recognition System” for “Merit Pay and Cash Awards” in item for chapter 54.

1978–Pub. L. 95-454, title I, $101(b)(1), title II, $ 203(b), title V, $ 503(1), title VI, $ 601(b), title VII, 8 703(b), title LX, 8906(c)(5), Oct. 13, 1978, 92 Stat. 1118, 1134, 1184, 1188, 1217, 1227, added items for chapters 23, 34, 47, 54, and 72, substituted in item for chapter 43 “Appraisal" for “Rating" and in item for chapter 71 “Labor-Management Relations” for “Policies”, and inserted in heading of subpart F “Labor-Management and" before “Employee".

PART REFERRED TO IN OTHER SECTIONS This part is referred to in title 28 section 996; title 42 section 3056b; title 44 section 2105; title 47 sections 154, 332.

1967 ACT This section amends various sections (882101, 4102, 4109, 5541, 8101] of title 5, United States Code, to reflect 1965 Reorganization Plan No. 2 (79 Stat. 1318), effective July 13, 1965, which consolidated the Coast and Geodetic Survey and the Weather Bureau to form a new agency in the Department of Commerce to be known as the Environmental Science Services Administration.

AMENDMENTS 1979 – Par. (3). Pub. L. 96-54 substituted "National Oceanic and Atmospheric" for "Environmental Science Services".

EFFECTIVE DATE OF 1979 AMENDMENT Amendment by Pub. L. 96–54 effective July 12, 1979, see section 2(b) of Pub. L. 96–54, set out as a note under section 305 of this title.

Subpart A-General Provisions

SHORT TITLE OF 1998 AMENDMENT Pub. L. 105–339, $1, Oct. 31, 1998, 112 Stat. 3182, provided that: “This Act [enacting sections 3330a to 3330c of this title, section 1316a of Title 2, The Congress, section 115 of Title 3, The President, and section 1354 of Title 31, Money and Finance, amending sections 2108, 2302, and 3304 of this title and section 4212 of Title 38, Veterans' Benefits, repealing section 1599c of Title 10, Armed Forces, enacting provisions set out as notes under section 2302 of this title and section 601 of Title 28, Judiciary and Judicial Procedure, and amending provisions set out as a note under section 106 of Title 49, Transportation) may be cited as the 'Veterans Employment Opportunities Act of 1998'.”

SHORT TITLE OF 1994 AMENDMENT Pub. L. 103–226, $1, Mar. 30, 1994, 108 Stat. 111, provided that: “This Act (amending sections 3381, 4101, 4103, 4105, 4107, 4108, 4113, 4118, 5597, 8351, 8433 to 8435, 8437, 8440a to 8440d of this title and section 1206 of Title 45, Railroads, repealing sections 4106 and 4114 of this title, enacting provisions set out as notes under sec. tions 3101, 3381, 5597, 8331, and 8351 of this title, and

Sec. 2101. Civil service; armed forces; uniformed serv

ices. 2101a. The Senior Executive Service. 2102. The competitive service. 2103. The excepted service. 2104. Officer. 2105. Employee. 2106. Member of Congress. 2107. Congressional employee. 2108. Veteran; disabled veteran; preference eligible. 2109. Air traffic controller; Secretary.

AMENDMENTS 1980—Pub. L. 96–347, $1(d), Sept. 12, 1980, 94 Stat. 1150, substituted "controller; Secretary” for "controller” in item 2109.

1 So in original. Probably should be capitalized.

positions to which appointments are made by nomination for confirmation by the Senate when specifically included therein by statute.

(c) As used in other Acts of Congress, “classified civil service" or "classified service" means the “competitive service”. (Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 408; Pub. L. 95 454, title IV, § 401(b), Oct. 13, 1978, 92 Stat. 1154.)

appoint cial

, az Dt of the the noi

SHORT TITLE OF 1990 AMENDMENT Pub. L. 101–508, title VII, $7202(a), Nov. 5, 1990, 104 Stat. 1388-335, provided that: “This section (amending sections 2105, 3502, 5334, 5335, 5365, 5551, 6308, 6312, 8331, 8347, 8401, 8461, and 8901 of this title and enacting provisions set out as notes under section 2105 of this title] may be cited as the ‘Portability of Benefits for Nonappropriated Fund Employees Act of 1990'.” COORDINATION OF TITLE VII OF PUB. L. 101-508 WITH

SECTION 909 OF TITLE 2 Pub. L. 101–508, title VII, $ 7301, Nov. 5, 1990, 104 Stat. 1388-341, provided that: “For purposes of section 202 of the Balanced Budget and Emergency Deficit Reaffirmation Act of 1987 (probably means section 202 of the Balanced Budget and Emergency Deficit Control Reaffirmation Act of 1987, Pub. L. 100--119, which was formerly classified to section 909 of Title 2, The Congress), this title and the amendments made by this title (amending sections 552a, 2105, 3502, 5334, 5335, 5365, 5551, 6308, 6312, 8331, 8334, 8339, 8342, 8343a, 8347, 8348, 8401, 8420a, 8461, 8901, 8902, 8904, 8906, 8909, and 8910 of this title, enacting provisions set out as notes under this section and sections 552a, 2105, 8334, 8343a, 8348, 8902, 8904, and 8906 of this title, amending provisions set out as notes under sections 8343a and 8906 of this title, and repealing provisions set out as notes under sections 8343a and 8348 of this title] shall be considered an exception under subsection (b) of such section."

SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in title 18 section 207; title 22 section 3641; title 41 section 423.

$ 2101a. The Senior Executive Service

The “Senior Executive Service onsists of Senior Executive Service positions (as defined in section 3132(a)(2) of this title). (Added Pub. L. 95–454, title IV, $401(a), Oct. 13, 1978, 92 Stat. 1154.)

EFFECTIVE DATE Section effective 9 months after Oct. 13, 1978, and congressional review of provisions of sections 401 through 412 of Pub. L. 95-454, see section 415 of Pub. L. 95–454, set out as a note under section 3131 of this title.

Subsection (a) is restated in the form of a definition.

Subsection (a)(1) is based on former section 638, which placed positions in the executive branch of the Government generally in the competitive service by the requirement that employment be predicated on passing an examination or being exempted from examination, and section 1 of the Act of Nov. 26, 1940, ch. 919, title I, 54 Stat. 1211 (see table III), which authorized the President, subject to certain exceptions, to place in the classified civil service positions in the Executive departments, independent establishments, and other agencies of the Government. In that Act the word "executive” has been construed to modify "departments”, "independent establishments”; and "other agency”. This construction is supported by the language of the Act of Jan. 16, 1883, and is embodied in Civil Service Rule I. Acting under this statute, the President has placed all but a comparatively few of the positions covered by the Act of Nov. 26, 1940, in the competitive service. The remainder are covered by the exceptions contained in the Civil Service Rules and Regulations. The authority of the President conferred by the Act of Nov. 26, 1940, has been superseded in part by exceptions created by statutes enacted after that date. The effect of these exceptions and the power conferred on the President by former section 633(2)8 (last sentence) to make exceptions to the Civil Service Rules are preserved by the words "positions which are specifically excepted from the competitive service by or under statute”.

In subsection (a)(1)(B), the words “or to pass an examination" are omitted as covered by the exclusion from the “competitive service".

Subsection (a)(2) preserves the exception stated in former section 638 modified to recognize the several statutory exceptions to this exception that have been enacted. The language of former section 638 relative to examination is codified in sections 3304(b) and 3361. The reference to veterans' preference is omitted because the statute referred to, R.S. $1754, was superseded by sections 3 and 21 of the Act of June 18, 1929, ch. 28, 46 Stat. 21. Section 3 of the Act of June 18, 1929, was superseded by the Act of June 27, 1944, ch. 287, 58 Stat. 387, as amended, which is carried into this title. Rights preserved by section 18 of the Act of June 27, 1944, are further preserved by technical section 8. The exception for laborers and workmen was superseded by the Act of Nov. 26, 1940.

Subsection (b) is added because of the provisions in section 3311 of title 39.

Subsection (c) is supplied for conformity inasmuch as the terms are coextensive by definition.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

$ 2102. The competitive service
(a) The "competitive service” consists of-

(1) all civil service positions in the executive branch, except

(A) positions which are specifically excepted from the competitive service by or under statute;

(B) positions to which appointments are made by nomination for confirmation by the Senate, unless the Senate otherwise directs; and

(C) positions in the Senior Executive Service;

(2) civil service positions not in the executive branch which are specifically included in the competitive service by statute; and

(3) positions in the government of the District of Columbia which are specifically included in the competitive service by statute. (b) Notwithstanding subsection (a)(1)(B) of this section, the competitive service” includes

1978–Subsec. (a)(1)(C). Pub. L. 95 454 added cl. (C).

EFFECTIVE DATE OF 1978 AMENDMENT Amendment by Pub, L. 95 454 effective 9 months after Oct. 13, 1978, and congressional review of provisions of

sections 401 through 412 of Pub. L. 95 454, see section 415 of Pub, L. 95 454, set out as an Effective Date note under section 3131 of this title.

SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 3132, 3304 of this title; title 10 sections 1744, 1792; title 16 section 3198; title 22 section 3641; title 28 section 569; title 36 section 2102; title 42 section 2000e; title 49 section 44506.

$ 2103. The excepted service

(a) For the purpose of this title, the “excepted service” consists of those civil service positions which are not in the competitive service or the Senior Executive Service.

(b) As used in other Acts of Congress, “unclassified civil service" or "unclassified service" means the “excepted service”. (Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 408; Pub. L. 95 454, title IV, $ 401(c), Oct. 13, 1978, 92 Stat. 1154.)

HISTORICAL AND REVISION NOTES The section is supplied for convenience. The "excepted service” has come to mean all employees not in the competitive service, for whatever reason.

strumen

d) ARE in active maining is vidual hol

1978–Subsec. (a). Pub. L. 95 454 inserted reference to Senior Executive Service.

EFFECTIVE DATE OF 1978 AMENDMENT Amendment by Pub. L. 95 454 effective 9 months after Oct. 13, 1978, and congressional review of provisions of sections 401 through 412 of Pub. L. 95 454, see section 415 of Pub. L. 95 454, set out as an Effective Date note under section 3131 of this title.

te with youtment rmations tsived in

e) Exce
umployee
i the Pos sployee For

AMENDMENTS 1970—Subsec. (a). Pub. L. 91-375, $6(c)(3)(A), (B), designated existing provisions as subsec. (a) and inserted in introductory text “as otherwise provided by this section or” after “except”.

Subsec. (b). Pub. L. 91–375, 86(c)(3)(C), added subsec. (b).

EFFECTIVE DATE OF 1970 AMENDMENT Amendment by Pub. L. 91–375 effective within 1 year after Aug. 12, 1970, on date established therefor by Board of Governors of United States Postal Service and published by it in Federal Register, see section 15(a) of Pub. L. 91–375, set out as an Effective Date note preceding section 101 of Title 39, Postal Service.

SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 902 of this title; title 18 section 202; title 41 section 423; title 42 section 14614; title 50 section 426. $ 2105. Employee

(a) For the purpose of this title, “employee", except as otherwise provided by this section or when specifically modified, means an officer and an individual who is

(1) appointed in the civil service by one of the following acting in an official capacity

(A) the President;

(B) a Member or Members of Congress, or the Congress;

(C) a member of a uniformed service;

(D) an individual who is an employee under this section;

(E) the head of a Government controlled corporation; or

(F) an adjutant general designated by the Secretary concerned under section 709(c) of title 32;

(2) engaged in the performance of a Federal function under authority of law or an Executive act; and

(3) subject to the supervision of an individual named by paragraph (1) of this subsection while engaged in the performance of the duties of his position.

(b) An individual who is employed at the United States Naval Academy in the midshipmen's laundry, the midshipmen's tailor shop, the midshipmen's cobbler and barber shops, and the midshipmen's store, except an individual employed by the Academy dairy (if any), and whose employment in such a position began before October 1, 1996, and has been uninterrupted in such a position since that date is deemed an employee.

(c) An employee paid from nonappropriated funds of the Army and Air Force Exchange Service, Army and Air Force Motion Picture Service, Navy Ship’s Stores Ashore, Navy exchanges, Marine Corps exchanges, Coast Guard exchanges, and other instrumentalities 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 is deemed not an employee for the purpose of,

(1) laws administered by the Office of Personnel Management, except

(A) section 7204;

(B) as otherwise specifically provided in this title;

SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 3304 of this title; title 10 sections 1614, 1744, 2164; title 49 section 44506.

$ 2104. Officer

(a) For the purpose of this title, "officer”, except as otherwise provided by this section or when specifically modified, means a justice or judge of the United States and an individual who is

(1) required by law to be appointed in the civil service by one of the following acting in an official capacity

(A) the President;
(B) a court of the United States;
(C) the head of an Executive agency; or

(D) the Secretary of a military department;

(2) engaged in the performance of a Federal function under authority of law or an Executive act; and

(3) subject to the supervision of an authority named by paragraph (1) of this section, or the Judicial Conference of the United States, while engaged in the performance of the duties of his office.

(b) Except as otherwise provided by law, an officer of the United States Postal Service or of the Postal Rate Commission is deemed not an officer for purposes of this title. (Pub. L. 89-554, Sept. 6, 1966, 80 Stat. 408; Pub. L. 91–375, 86(c)(3), Aug. 12, 1970, 84 Stat. 775.)

HISTORICAL AND REVISION NOTES The section is supplied for convenience.

Department of Labor and in use by both for more than a decade.

In subsection (b), the provisions of the source statutes which relate to credit for prior service and diminution of pay are executed, or, insofar as to be executed preserved by technical section 8.

In subsection (d), the words “officer or” are omitted as included within "employee”.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

REFERENCES IN TEXT The Fair Labor Standards Act of 1938, referred to in subsec. (c)(1)(C), is act June 25, 1938, ch. 676, 52 Stat. 1060, as amended, which is classified generally to chapter 8 (8201 et seq.) of Title 29, Labor. For complete classification of this Act to the Code, see section 201 of Title 29 and Tables.

(C) the Fair Labor Standards Act of 1938;

(D) for the purpose of entering into an interchange agreement to provide for the noncompetitive movement of employees between such instrumentalities and the competitive service; or

(E) subchapter V of chapter 63, which shall be applied so as to construe references to benefit programs to refer to applicable programs for employees paid from nonappropriated funds; or

(2) subchapter I of chapter 81, chapter 84 (except to the extent specifically provided there

in), and section 7902 of this title. This subsection does not affect the status of these nonappropriated fund activities as Federal instrumentalities.

(d) A Reserve of the armed forces who is not on active duty or who is on active duty for training is deemed not an employee or an individual holding an office of trust or profit or discharging an official function under or in connection with the United States because of his appointment, oath, or status, or any duties or functions performed or pay or allowances received in that capacity.

(e) Except as otherwise provided by law, an employee of the United States Postal Service or of the Postal Rate Commission is deemed not an employee for purposes of this title.

(f) For purposes of sections 1212, 1213, 1214, 1215, 1216, 1221, 1222, 2302, and 7701, employees appointed under chapter 73 or 74 of title 38 shall be employees. (Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 409; Pub. L. 90-486, $4, Aug. 13, 1968, 82 Stat. 757; Pub. L. 91-375, 86(c)(4), Aug. 12, 1970, 84 Stat. 775; Pub. L. 92–392, 82, Aug. 19, 1972, 86 Stat. 573; Pub. L. 95-454, title VII, $703(c)(2), title IX, 8906(a)(2), Oct. 13, 1978, 92 Stat. 1217, 1224; Pub. L. 96–54, $2(a)(5), (6), Aug. 14, 1979, 93 Stat. 381; Pub. L. 99-335, title II, 8 207(a), June 6, 1986, 100 Stat. 594; Pub. L. 99-638, 82(b)(1), Nov. 10, 1986, 100 Stat. 3536; Pub. L. 101-508, title VII, $7202(b), Nov. 5, 1990, 104 Stat. 1388–335; Pub. L. 103-3, title II, $201(b), Feb. 5, 1993, 107 Stat. 23; Pub. L. 103-424, $7, Oct. 29, 1994, 108 Stat. 4364; Pub. L. 104-201, div. A, title III, § 370(b), Sept. 23, 1996, 110 Stat. 2499; Pub. L. 105–85, div. B, title XXVIII, $2871(c)(2), Nov. 18, 1997, 111 Stat. 2015.)

AMENDMENTS 1997–Subsec. (b). Pub. L. 105–85 inserted "(if any)" after “Academy dairy”.

1996—Subsec. (b). Pub. L. 104–201 inserted “who is" after “An individual" and "and whose employment in such a position began before October 1, 1996, and has been uninterrupted in such a position since that date” after "Academy dairy,”.

1994–Subsec. (f). Pub. L. 103-424 added subsec. (f).

1993–Subsec. (c)(1)(E). Pub. L. 103–3 added subpar. (E).

1990_Subsec. (c)(1). Pub. L. 101–508, $7202(b)(1), amended par. (1) generally. Prior to amendment, par. (1) read as follows: "laws (other than subchapter IV of chapter 53 of this title, subchapter III of chapter 83 of this title to the extent provided in section 8332(b)(16) of this title, and sections 5550 and 7204 of this title) administered by the Office of Personnel Management; or”.

Subsec. (c)(2). Pub. L. 101–508, $7202(b)(2), inserted “(except to the extent specifically provided therein)”, after “chapter 84”.

1986Subsec. (c)(1). Pub. L. 99-638 inserted “of this title, subchapter III of chapter 83 of this title to the extent provided in section 8332(b)(16) of this title,”.

Subsec. (c)(2). Pub. L. 99-335 substituted "chapter 81, chapter 84,” for “chapter 81”.

1979—Subsec. (a)(1)(F). Pub. L. 96–54, $2(a)(5), substituted "an adjutant” for “the adjutants” and struck out“, United States Code” after "32”.

Subsec. (c)(1). Pub. L. 96–54, 82(a)(6), amended subsec. (c)(1) in same manner as amendment by section 703(c)(2) of Pub. L. 95–454. See 1978 Amendment note set out below.

1978—Subsec. (c)(1). Pub. L, 95–454 substituted “7204" for “7154”, and “Office of Personnel Management" for "Civil Service Commission”. Amendments by section 703(c)(1) and (c)(2) of Pub. L. 95–454 appear to have been inadvertently reversed. Subsec. (c)(1) purported to amend subsec. (c)(1) of this section, and subsec. (c)(2) purported to amend section 3302(2) of this title. However, the amendments specified by Pub. L. 95–454, $703(C)(1) and (2), were impossible to execute literally. Thus, the amendment by Pub. L. 95–454, $ 703(C)(2) was executed to this section, and the amendment by section 703(c)(1) was executed to section 3302(2) of this title as the probable intent of Congress.

1972–Subsec. (c)(1). Pub. L. 92–392 substituted "laws (other than subchapter IV of chapter 53 and sections 5550 and 7154 of this title)” for “laws”.

1970—Subsec. (e). Pub. L. 91–375 added subsec. (e).

1968–Subsec. (a)(1)(F). Pub. L. 90-486 added subpar. (F).

EFFECTIVE DATE OF 1996 AMENDMENT Section 370(e) of Pub. L. 104–201 provided that: “The amendments made by this section (amending this section and section 6971 of Title 10, Armed Forces, and repealing section 6970 of Title 10) shall take effect on October 1, 1996."

Aug. 5, 1939, ch. 448, 82, 53

Stat. 1210. Dec. 3, 1945, ch. 510, $2, 59

Stat. 590. Dec. 28, 1945, ch. 593, 92, 59

Stat. 660. Dec. 28, 1945, ch. 594, 82, 59

Stat. 660. July 26, 1946, ch. 675, 82

(last proviso), 60 Stat. 704. June 19, 1952, ch. 444, $1, 66

Stat. 138. Aug. 10, 1956, ch.

1041, $ 29(d), 70A Stat. 632.

Subsection (a) is supplied to avoid the necessity of defining "employee" each time it appears in this title. The subsection is based on a definition worked out independently by the Civil Service Commission and the

Page 9

EFFECTIVE DATE OF 1993 AMENDMENT Amendment by Pub. L. 103-3 effective 6 months after Feb. 5, 1993, see section 405(b)(1) of Pub. L. 103–3, set out as an Effective Date note under section 2601 of Title 29, Labor.

EFFECTIVE DATE OF 1990 AMENDMENT Section 7202(m) of Pub. L. 101–508 provided that:

"(1) The amendments made by this section (amending this section and sections 3502, 5334, 5335, 5365, 5551, 6308, 6312, 8331, 8347, 8401, 8461, and 8901 of this title] shall apply with respect to any individual who, on or after January 1, 1987–

“(A) moves without a break in service of more than 3 days from employment in a nonappropriated fund instrumentality of the Department of Defense or the Coast Guard that is described in section 2105(c) of title 5, United States Code, to employment in the Department of Defense or the Coast Guard, respectively, that is not described in such section 2105(c); or

“(B) moves without a break in service from employment in the Department of Defense or the Coast Guard that is not described in such section 2105(c) to employment in a nonappropriated fund instrumentality of the Department of Defense or the Coast Guard, respectively, that is described in such section 2105(c).

“(2) The Secretary of Defense, the Secretary of Transportation, the Director of the Office of Personnel Management, and the Executive Director of the Federal Retirement Thrift Investment Board, as applicable, shall take such actions as may be practicable to ensure that each individual who has moved as described under paragraph (1) on or after January 1, 1987, and before the date of enactment of this Act (Nov. 5, 1990), receives the benefit of the amendments made by this section as if such amendments had been in effect at the time such individual so moved. Each such individual who wishes to make an election of retirement coverage under the amendments made by subsection (j) or (k) of this section (amending sections 8331, 8347, 8401, and 8461 of this title] shall complete such election within 180 days after the date of enactment of this Act."

TREATMENT OF INDIVIDUALS ELECTING TO REMAIN

SUBJECT TO THEIR FORMER RETIREMENT SYSTEM Section 7202(n) of Pub. L. 101-508, as amended by Pub. L. 102-378, 85(a)(2), Oct. 2, 1992, 106 Stat. 1358, provided that:

“(1) For the purpose of this section (amending this section and sections 3502, 5334, 5335, 5365, 5551, 6308, 6312, 8331, 8347, 8401, 8461, and 8901 of this title and enacting provisions set out as notes under this section and section 2101 of this title), the term 'nonappropriated fund instrumentality' means a nonappropriated fund instrumentality of the Department of Defense or the Coast Guard, described in section 2105(c) of title 5, United States Code.

“(2)(A) If an individual makes an election under section 8347(a)(1) of title 5, United States Code, to remain covered by subchapter III of chapter 83 of such title, any nonappropriated fund instrumentality thereafter employing such individual shall deduct from such individual's pay and contribute to the Thrift Savings Fund such sums as are required for such individual in accordance with section 8351 of such title.

“(B) Notwithstanding subsection (a) or (b) of section 8432 of title 5, United States Code, any individual who, as of the date of enactment of this Act [Nov. 5, 1990), becomes eligible to make an election under section 8347(q)(1) of such title may, within 30 days after such individual makes an election thereunder in accordance with subsection (m)(2) (set out as a note above), make any election described in section 8432(b)(1)(A) of such title.

“(3)(A) If an individual makes an election under section 8461(n)(1) of title 5, United States Code, to remain covered by chapter 84 of such title, any nonappropriated fund instrumentality thereafter employing such individual shall deduct from such individual's pay and shall contribute to the Thrift Savings Fund the funds deducted, together with such other sums as are required for such individual under subchapter III of such chapter.

“(B) Notwithstanding subsection (a) or (b) of section 8432 of title 5, United States Code, any individual who, as of the date of enactment of this Act, becomes eligible to make an election under section 8461(n)(1) of such title may, within 30 days after such individual makes an election thereunder in accordance with subsection (m)(2), make any election described in section 8432(b)(1)(A) of such title.

“(4) If an individual makes an election under section 8347(q)(2) or 8461(n)(2) of title 5, United States Code, to remain covered by a retirement system established for employees described in section 2105(c) of such title, any Government agency thereafter employing such individual shall, in lieu of any deductions or contributions for which it would otherwise be responsible with respect to such individual under chapter 83 or 84 of such title, make such deductions from pay and such contributions as would be required (under the retirement system for nonappropriated fund employees involved) if it were a nonappropriated fund instrumentality. Any such deductions and contributions shall be remitted to the Department of Defense or the Coast Guard, as applicable, for transmission to the appropriate retirement system.''

[Amendment by Pub. L. 102–378 to section 7202(n) of Pub. L. 101–508, set out above, effective Nov. 5, 1990, see section 9(b)(6) of Pub. L. 102-378, set out as an Effective Date of 1992 Amendment note under section 6303 of this title.] PROHIBITION OF DECREASE IN BASIC PAY RATE OF EM

PLOYEES OF NONAPPROPRIATED FUND INSTRUMENTAL

EFFECTIVE DATE OF 1986 AMENDMENT

Amendm 5. Sectio Live Date

Amendment by Pub. L. 99–335 effective Jan. 1, 1987, see section 702(a) of Pub. L. 99 335, set out as an Effective Date note under section 8401 of this title.

EFFECTIVE DATE OF 1979 AMENDMENT Amendment by Pub. L. 96–54 effective July 12, 1979, see section 2(b) of Pub. L. 96–54, set out as a note under section 305 of this title.

EFFECTIVE DATE OF 1978 AMENDMENT Amendment by Pub. L. 95 454 effective 90 days after Oct. 13, 1978, see section 907 of Pub. L. 95_454, set out as a note under section 1101 of this title.

EFFECTIVE DATE OF 1972 AMENDMENT Amendment by Pub. L. 92–392 effective on first day of first applicable pay period beginning on or after 90th day after Aug. 19, 1972, see section 15(a) of Pub. L. 92–392, set out as an Effective Date note under section 5341 of this title,

EFFECTIVE DATE OF 1970 AMENDMENT Amendment by Pub. L. 91–375 effective within 1 year after Aug. 12, 1970, on date established therefor by Board of Governors of United States Postal Service and published by it in Federal Register, see section 15(a) of Pub. L. 91–375, set out as an Effective Date note preceding section 101 of Title 39, Postal Service.

EFFECTIVE DATE OF 1968 AMENDMENT Amendment by Pub. L. 90 486 effective Jan. 1, 1968, except that no deductions or withholding from salary which result therefrom shall commence before the first day of the first pay period that begins on or after Jan.

section 9(a)(2) of Pub. L. 92–392, set out as a note under 36, set out asui section 5343 of this title. 1 Guard.

SECTION REFERRED TO IN OTHER SECTIONS TING TO Raw REMENT SISTE This section is referred to in sections 3502, 5334, 5335,

5342, 5365, 5506, 5515, 5537, 5551, 5552, 5581, 5595, 5736, 5751, s amended by: 5945, 5946, 6103, 6104, 6121, 6301, 6308, 6322, 6323, 6385, 7103, tat. 1358 , pro 7119, 7342, 7905, 8171, 8172, 8173, 8311, 8331, 8332, 8347, 8401,

8461, 8701, 8901, 9001 of this title; title 10 sections 975, n (amending : 1587; title 18 section 202; title 19 section 2081; title 22 365, 5551 , 6:0, 1

sections 3974, 4341, 4833; title 25 section 450i; title 26 secitle and enari tion 7608; title 41 sections 419, 423; title 42 sections 3374, 5 section and i 14614; title 50 section 426. ated fund inst $ 2106. Member of Congress

For the purpose of this title, “Member of Con

gress” means the Vice President, a member of ection under sa the Senate or the House of Representatives, a Code, to remi Delegate to the House of Representatives, and B of sach tili the Resident Commissioner from Puerto Rico. from such ini (Pub. L. 89-554, Sept. 6, 1966, 80 Stat. 409; Pub. L. Et Savings Fur 91-405, title II, $ 204(b), Sept. 22, 1970, 84 Stat. 852; idual in accori Pub. L. 96–54, $2(a)(7), Aug. 14, 1979, 93 Stat. 381.)

HISTORICAL AND REVISION NOTES The section is supplied to avoid the necessity of defining “Member of Congress" each time the term is used in this title.

ise or the Cau T title 5, Unit

July 27, 1965, Pub. L. 89-90,

$101 (proviso on p. 265), 79

Stat. 265. Sept. 26, 1966, Pub, L. 89–604,

$1(a), 80 Stat. 846.

or () of section individual who t (Nov. 1, 2

under section

days after such T in content e atore)

, male

1979-Pub. L. 96–54 substituted “to the House of Representatives” for “from the District of Columbia”.

1970—Pub. L. 91-405 included Delegate from District of Columbia.

Paragraph (6), relating to Official Reporters of Debates of the Senate and their employees, is eliminated as unnecessary on authority of the act of July 27, 1965 (2 U.S.C. 126-1). Pursuant to that act, the Official Reporters and their employees became employees of the Senate; accordingly, they are now included within the definition of "Congressional employee” under paragraph (1).

In paragraph (8), based on the act of September 26, 1966 (5 App. U.S.C. 2251(c)), the word "officers" is omitted as included in “employees,” and the words “United States” preceding the words “Botanic Garden" are omitted as unnecessary.

AMENDMENTS 1996—Par. (5). Pub. L. 104–186 substituted “Chief Administrative Officer” for “Clerk”. 1970Par. (9). Pub. L. 91–510 added par. (9).

EFFECTIVE DATE OF 1970 AMENDMENT Amendment by Pub. L. 91–510 effective immediately prior to noon on June. 3, 1971, see section 601(1) of Pub. L. 91-510, set out as a note under section 72a

Title 2, The Congress.

SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 5531, 8331, 8401, 8701, 8901 of this title; title 2 section 31b-5; title 22 section 3008; title 26 section 7448; title 31 section 774; title 38 section 7297.

Jon under sa de, to remain Donappropri ploping soch zal's pay art and the funds 75 as are it er II of such

(b) of sectic dividual whe ecomes eliz (0) (1) ol sud vidual make

subsectiu in sectir

under sectiu ates Code 1 tablished ch title, 21 such indir ributions: ch respecti such tick

EFFECTIVE DATE OF 1979 AMENDMENT Amendment by Pub. L. 96-54 effective July 12, 1979, see section 2(b) of Pub. L. 96-54, set out as a note under section 305 of this title.

EFFECTIVE DATE OF 1970 AMENDMENT Amendment by Pub. L. 91-405 effective Sept. 22, 1970, see section 206(b) of Pub. L. 91–405, set out as an Effective Date note under section 25a of Title 2, The Congress.

SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 5520a, 7342, 8311, 8331, 8401, 8701, 8901 of this title. $2107. Congressional employee

For the purpose of this title, “Congressional employee" means

(1) an employee of either House of Congress, of a committee of either House, or of a joint committee of the two Houses;

(2) an elected officer of either House who is not a Member of Congress;

(3) the Legislative Counsel of either House and an employee of his office;

(4) a member of the Capitol Police;

(5) an employee of a Member of Congress if the pay of the employee is paid by the Secretary of the Senate or the Chief Administrative Officer of the House of Representatives;

[(6) Repealed. Pub. L. 90–83, 1(5)(A), Sept. 11, 1967, 81 Stat. 196.]

(7) the Architect of the Capitol and an employee of the Architect of the Capitol;

(8) an employee of the Botanic Garden; and

(9) an employee of the Capitol Guide Service. (Pub. L. 89_554, Sept. 6, 1966, 80 Stat. 409; Pub. L. 90-83, $1(5), Sept. 11, 1967, 81 Stat. 196; Pub. L.

such das to the applicat ement.

$ 2108. Veteran; disabled veteran; preference eli

gible For the purpose of this title(1) "veteran" means an individual who

(A) served on active duty in the armed forces during a war, in a campaign or expedition for which a campaign badge has been authorized, or during the period beginning April 28, 1952, and ending July 1, 1955;

(B) served on active duty as defined by section 101(21) of title 38 at any time in the armed forces for a period of more than 180 consecutive days any part of which occurred after January 31, 1955, and before October 15, 1976, not including service under section 12103(d) of title 10 pursuant to an enlistment in the Army National Guard or the Air National Guard or as a Reserve for service in the Army Reserve, Naval Reserve, Air Force Reserve, Marine Corps Reserve, or Coast Guard Reserve; or

(C) served on active duty as defined by section 101(21) of title 38 in the armed forces during the period beginning on August 2, 1990, and ending on January 2, 1992;

197_Par. sin escept Tecutive S

Par. (3). pin encept rative S 1972-Par

90-623, $1(2), Oct. 22, 1968, 82 Stat. 1312; Pub. L. 92–187, 81, Dec. 15, 1971, 85 Stat. 644; Pub. L. 94-502, title VII, $ 702, Oct. 15, 1976, 90 Stat. 2405; Pub. L. 95 454, title III, 8 307(a), title IV, $401(d), Oct. 13, 1978, 92 Stat. 1147, 1154; Pub. L. 96–54, $2(a)(8), (9)(A), Aug. 14, 1979, 93 Stat. 381; Pub. L. 96–191, $8(a), Feb. 15, 1980, 94 Stat. 33; Pub. L. 97-89, title VIII, $801, Dec. 4, 1981, 95 Stat. 1161; Pub. L. 100–325, $2(a), May 30, 1988, 102 Stat. 581; Pub. L. 102–54, $13(b)(1), June 13, 1991, 105 Stat. 274; Pub. L. 105–85, div. A, title XI, $1102(a), (c), Nov. 18, 1997, 111 Stat. 1922; Pub. L. 105–339, $4(a), Oct. 31, 1998, 112 Stat. 3185.)

HISTORICAL AND REVISION NOTES

1966 ACT

5 U.S.C. 851 (less 1st

76 words).

June 27, 1944, ch. 287, $2

(less 1st 76 words), 58

Stat. 387. Jan. 19, 1948, ch. 1, $1, 62

Stat. 3. July 2, 1948, ch. 816, 62 Stat,

1233. Aug. 26, 1949, ch, 513, 63

Stat. 666. Dec. 27, 1950, ch. 1151, 81, 64

Stat. 1117. July 14, 1952, ch. 728, $1, 66

Stat. 626.

and who has been separated from the armed forces under honorable conditions;

(2) "disabled veteran” means an individual who has served on active duty in the armed forces, has been separated therefrom under honorable conditions, and has established the present existence of a service-connected disability or is receiving compensation, disability retirement benefits, or pension because of a public statute administered by the Department of Veterans Affairs or a military department;

(3) "preference eligible” means, except as provided in paragraph (4) of this section

(A) a veteran as defined by paragraph (1)(A) of this section;

(B) a veteran as defined by paragraph (1)(B) or (C) of this section;

(C) a disabled veteran;

(D) the unmarried widow or widower of a veteran as defined by paragraph (1)(A) of this section;

(E) the wife or husband of a service-connected disabled veteran if the veteran has been unable to qualify for any appointment in the civil service or in the government of the District of Columbia;

(F) the mother of an individual who lost his life under honorable conditions while serving in the armed forces during a period named by paragraph (1)(A) of this section, if

(i) her husband is totally and permanently disabled;

(ii) she is widowed, divorced, or separated from the father and has not remarried; or

(iii) she has remarried but is widowed, divorced, or legally separated from her husband when preference is claimed; and

(G) the mother of a service-connected permanently and totally disabled veteran, if

(i) her husband is totally and permanently disabled;

(ii) she is widowed, divorced, or separated from the father and has not remarried; or

(iii) she has remarried but is widowed, divorced, or legally separated from her

husband when preference is claimed; but does not include applicants for, or members of, the Senior Executive Service, the Defense Intelligence Senior Executive Service, the Senior Cryptologic Executive Service, or the Federal Bureau of Investigation and Drug Enforcement Administration Senior Executive Service;

(4) except for the purposes of chapters 43 and 75 of this title, "preference eligible” does not include a retired member of the armed forces unless

(A) the individual is a disabled veteran; or

(B) the individual retired below the rank of major or its equivalent; and

(5) “retired member of the armed forces" means a member or former member of the armed forces who is entitled, under statute, to retired, retirement, or retainer pay on account

of service as a member. (Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 410; Pub. L. 90–83, $1(6), Sept. 11, 1967, 81 Stat. 196; Pub. L.

In paragraph (2), the words "a military department" are substituted for “the War Department or Navy Department” (appearing in section 2 of the Act of June 27, 1944) because of the definition of "military department” in section 102. The Department of War was designated the Department of the Army by the Act of July 26, 1947, ch. 343, $ 205, 61 Stat. 501. "Department of the Air Force” is included on authority of the Act of July 26, 1947, ch. 343, $207 (a), (f), 61 Stat. 502.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

AMENDMENTS 1998—Par. (3). Pub. L. 105–339, in concluding provisions, substituted "or the Federal Bureau of Investigation and Drug Enforcement Administration Senior Executive Service;" for "the Federal Bureau of Investigation and Drug Enforcement Administration Senior Executive Service, or the General Accounting Office;".

1997—Par. (1)(B). Pub. L. 105-85, $1102(c), substituted “October 15, 1976,” for “the date of enactment of the Veterans' Education and Employment Assistance Act of 1976,” and “12103(d) of title 10" for "511(d) of title 10”.

Par. (1)(C). Pub. L. 105–85, $1102(a)(1), added subpar. (C).

Par. (3)(B). Pub. L. 105–85, $1102(a)(2), inserted “or (C)” after paragraph (1)(B)”.

1991–Par. (2). Pub. L. 102-54 substituted "Department of Veterans Affairs” for “Veterans' Administration".

1988–Par. (3). Pub. L. 100-325 inserted reference to Federal Bureau of Investigation and Drug Enforcement Administration Senior Executive Service in concluding provisions.

1981–Par. (3). Pub. L. 97–89 inserted reference to Defense Intelligence Senior Executive Service and Senior Cryptologic Executive Service in concluding provisions.

1980—Par. (3). Pub. L. 96-191 inserted reference to General Accounting Office in concluding provisions.

1979—Par. (3). Pub. L. 96–54, $2(a)(8), inserted provision excepting applicants for, or members of, Senior Executive Service.

Par. (5). Pub. L. 96–54, $2(a)(9)(A), struck out provision excepting applicants for, or members of, Senior Executive Service.

1978–Par. (2). Pub. L. 95–454, 8307(a)(1), struck out "and" at end. Par. (3). Pub. L. 95 454, $307(a)(2), (3), inserted

except as provided in paragraph (4) of this section" after “means”, and substituted a semicolon for the period at end.

Pars. (4), (5). Pub. L. 95–454, $307(a)(4), added pars. (4) and (5) relating to retired members of the armed forces.

Par. (5). Pub. L. 95–454, $ 401(d), inserted “; but does not include applicants for, or members of, the Senior Executive Service" before the period at end.

1976–Par. (1)(B). Pub. L. 94-502 substituted “any part of which occurred after January 31, 1955, and before the date of enactment of the Veterans' Education and Employment Assistance Act of 1976,” for “after January 31, 1955,".

1971–Par. (3)(D). Pub. L. 92–187 inserted “or widower": after “unmarried widow''.

Par. (3)(E). Pub. L. 92–187 inserted “or husband" after "the wife'.

1968–-Par. (3)(D). Pub. L. 90-623 inserted “as defined by paragraph (1)(A) of this section" after “veteran”.

EFFECTIVE DATE OF 1981 AMENDMENT Amendment by Pub. L. 97–89 effective Oct. 1, 1981, see section 806 of Pub. L. 97–89, set out as an Effective Date note under section 1621 of Title 10, Armed Forces.

(A) is actively engaged

(i) in the separation and control of air traffic; or

(ii) in providing preflight, inflight, or airport advisory service to aircraft operators; or

(B) is the immediate supervisor of any employee described in subparagraph (A); and

(2) "Secretary”, when used in connection with “air traffic controller” or “controller”, means the Secretary of Transportation with respect to controllers in the Department of Transportation, and the Secretary of Defense with respect to controllers in the Department

of Defense. (Added Pub. L. 92–297, § 1(a), May 16, 1972, 86 Stat. 141; amended Pub. L. 96–347, $1(a), Sept. 12, 1980, 94 Stat. 1150; Pub. L. 99-335, title II, § 207(b), June 6, 1986, 100 Stat. 594.)

AMENDMENTS 1986—Par. (1). Pub. L. 99335 amended par. (1) generally including within term "air traffic controller" or “controller” references to a flight service station facility and to employment providing preflight, inflight, or airport advisory service to aircraft operators and striking out provision that regulations prescribed by the Secretary be used in determining who is an air traffic controller.

1980—Pub. L. 96-347 substituted “controller; Secretary” for “controller” in section catchline, and in text included employees of the Department of Defense within the meaning of air traffic controller or controller and defined “Secretary” to mean Secretary of Transportation with respect to controllers in the Department of Transportation and Secretary of Defense with respect to controllers in the Department of Defense.

EFFECTIVE DATE OF 1986 AMENDMENT Amendment by Pub. L. 99-335 effective Jan. 1, 1987, see section 702(a) of Pub. L. 99-335, set out as an Effective Date note under section 8401 of this title.

EFFECTIVE DATE OF 1980 AMENDMENT Section 3 of Pub. L. 96–347 provided that: “This Act [amending this section and sections 3307, 3381 to 3385, and 8335 of this title and enacting provisions set out as a note under section 8335 of this title] shall take effect on the later of

“(1) October 1, 1980, or

"(2) the ninetieth day after the date of the enactment of this Act (Sept. 12, 1980].”

EFFECTIVE DATE Section effective on 90th day after May 16, 1972, see, section 10 of Pub. L. 92–297, set out as a note under section 3381 of this title.

SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in title 49 section 44506.

EFFECTIVE DATE OF 1980 AMENDMENT Amendment by Pub. L. 96–191 effective Oct. 1, 1980, see section 10(a) of Pub L. 96–191.

EFFECTIVE DATE OF 1979 AMENDMENT Amendment by section 2(a)(8) of Pub. L. 96–54 effective July 12, 1979, see section 2(b) of Pub. L. 96-54, set out as a note under section 305 of this title.

Section 2(a)(9)(B) of Pub. L. 96–54 provided that: “The amendment made by subparagraph (A) (amending this section] shall take effect October 1, 1980”.

EFFECTIVE DATE OF 1978 AMENDMENT Section 307(a) of Pub. L. 95–454 provided that the amendment made by that section is effective Oct. 1, 1980.

Amendment by section 401(d) of Pub. L. 95–454 effective 9 months after Oct. 13, 1978, and congressional review of provisions of sections 401 through 412 of Pub. L. 95-454, see section 415 of Pub. L. 95-454, set out as an Effective Date note under section 3131 of this title.

EFFECTIVE DATE OF 1968 AMENDMENT Amendment by Pub. L. 90-623 effective Sept. 11, 1967, for all purposes, see section 6 of Pub. L. 90-623, set out as a note under section 5334 of this title.

SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 2302, 3305, 3309, 3312, 3318, 3352, 3502, 3504 of this title; title 2 section 1316a; title 3 section 115; title 10 sections 943, 1614; title 16 section 3198; title 22 sections 1438, 3941; title 32 section 709; title 38 sections 106, 5303A, 7281, 7802; title 39 section 1005; title 42 sections 2992a-1, 9839; title 49 sec

CHAPTER 23—MERIT SYSTEM PRINCIPLES

$ 2109. Air traffic controller; Secretary For the purpose of this title

(1) "air traffic controller” or “controller" means a civilian employee of the Department of Transportation or the Department of Defense who, in an air traffic control facility or flight service station facility

Sec, 2301. Merit system principles. 2302. Prohibited personnel practices. 2303. Prohibited personnel practices in the Federal

Bureau of Investigation. 2304. Responsibility of the General Accounting Of

fice. 2305. Coordination with certain other provisions of

law. CHAPTER REFERRED TO IN OTHER SECTIONS This chapter is referred to in sections 1222, 4703, 9501 of this title.

$ 2301. Merit system principles
(a) This section shall apply to-

(1) an Executive agency; and

(2) the Government Printing Office. (b) Federal personnel management should be implemented consistent with the following merit system principles:

(1) Recruitment should be from qualified individuals from appropriate sources in an endeavor to achieve a work force from all segments of society, and selection and advancement should be determined solely on the basis of relative ability, knowledge, and skills, after fair and open competition which assures that all receive equal opportunity.

(2) All employees and applicants for employment should receive fair and equitable treatment in all aspects of personnel management without regard to political affiliation, race, color, religion, national origin, sex, marital status, age, or handicapping condition, and with proper regard for their privacy and constitutional rights.

(3) Equal pay should be provided for work of equal value, with appropriate consideration of both national and local rates paid by employers in the private sector, and appropriate incentives and recognition should be provided for excellence in performance.

(4) All employees should maintain high standards of integrity, conduct, and concern for the public interest.

(5) The Federal work force should be used efficiently and effectively.

(6) Employees should be retained on the basis of the adequacy of their performance, inadequate performance should be corrected, and employees should be separated who cannot or will not improve their performance to meet required standards.

(7) Employees should be provided effective education and training in cases in which such education and training would result in better organizational and individual performance. (8) Employees should be

(A) protected against arbitrary action, personal favoritism, or coercion for partisan political purposes, and

(B) prohibited from using their official authority or influence for the purpose of interfering with or affecting the result of an election or a nomination for election,

(9) Employees should be protected against reprisal for the lawful disclosure of information which the employees reasonably believe evidences

(A) a violation of any law, rule, or regulation, or

(B) mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or

safety. (c) In administering the provisions of this chapter

(1) with respect to any agency (as defined in section 2302(a)(2)(C) of this title), the President shall, pursuant to the authority otherwise available under this title, take any action, including the issuance of rules, regulations, or directives; and

(2) with respect to any entity in the executive branch which is not such an agency or part of such an agency, the head of such entity shall, pursuant to authority otherwise available, take any action, including the issuance

of rules, regulations, or directives; which is consistent with the provisions of this title and which the President or the head, as the case may be, determines is necessary to ensure that personnel management is based on and embodies the merit system principles. (Added Pub. L. 95–454, title I, § 101(a), Oct. 13, 1978, 92 Stat. 1113; amended Pub. L. 101–474, 85(c), Oct. 30, 1990, 104 Stat. 1099.)

AMENDMENTS 1990_Subsec. (a). Pub. L. 101–474 redesignated par. (3) as (2) and struck out former par. (2) which provided that this section is applicable to Administrative Office of United States Courts.

EFFECTIVE DATE Chapter effective 90 days after Oct. 13, 1978, see section 907 of Pub. L. 95-454, set out as an Effective Date of 1978 Amendment note under section 1101 of this title.

SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 2302, 4107, 4313, 5379 of this title; title 10 sections 1612, 1722; title 22 section 3902; title 31 section 732; title 41 section 433. $ 2302. Prohibited personnel practices

(a)(1) For the purpose of this title, “prohibited personnel practice” means any action described in subsection (b). (2) For the purpose of this section(A) "personnel action" means

(i) an appointment;
(ii) a promotion;

(iii) an action under chapter 75 of this title or other disciplinary or corrective action;

(iv) a detail, transfer, or reassignment; (v) a reinstatement; (vi) a restoration; (vii) a reemployment;

(viii) a performance evaluation under chapter 43 of this title;

(ix) a decision concerning pay, benefits, or awards, concerning education or training if the education or training may reasonably be expected to lead to an appointment, promotion, performance evaluation, or other action described in this subparagraph;

(x) a decision to order psychiatric testing or examination; and

(xi) any other significant change in duties, responsibilities, or working conditions; with respect to an employee in, or applicant for, a covered position in an agency, and in the case of an alleged prohibited personnel practice described in subsection (b)(8), an employee or applicant for employment in a Government corporation as defined in section 9101 of title 31;

(B) “covered position” means, with respect to any personnel action, any position in the competitive service, a career appointee position in the Senior Executive Service, or a position in the excepted service, but does not include any position which is, prior to the personnel action

Page 10

Subsec. (a stituted "Na Tenual Ima

Siisec. (b Dy. Prior tbirit or COD mal or writi usts or is ton except

02 Sube recluding I

a the case scribed in fr employe

basis of conduct which does not adversely af- 3352, 3363, 3501, 3502(b), 3504, and 4303(e) and
fect the performance of the employee or appli- (with respect to a preference eligible referred
cant or the performance of others; except that to in section 7511(a)(1)(B)) subchapter II of nothing in this paragraph shall prohibit an chapter 75 and section 7701.

agency from taking into account in determin- (B) Sections 943(c)(2) and 1784(c) of title 10.

ing suitability or fitness any conviction of the (C) Section 1308(b) of the Alaska National In-
employee or applicant for any crime under the terest Lands Conservation Act.
laws of any State, of the District of Columbia, (D) Section 301(c) of the Foreign Service Act
or of the United States;

of 1980.
(11)(A) knowingly take, recommend, or ap- (E) Sections 106(f), 7281(e), and 7802(5) of title
prove any personnel action if the taking of
such action would violate a veterans' pref- (F) Section 1005(a) of title 39. erence requirement; or

(G) Any other provision of law that the Di(B) knowingly fail to take, recommend, or rector of the Office of Personnel Management approve any personnel action if the failure to

designates in regulations as being a veterans' take such action would violate a veterans' preference requirement for the purposes of preference requirement; or

this subsection. (12) take or fail to take any other personnel (H) Any regulation prescribed under subaction if the taking of or failure to take such section (b) or (c) of section 1302 and any other action violates any law, rule, or regulation

regulation that implements a provision of law implementing, or directly concerning, the referred to in any of the preceding subparamerit system principles contained in section

graphs. 2301 of this title.

(2) Notwithstanding any other provision of This subsection shall not be construed to au

this title, no authority to order corrective acthorize the withholding of information from the

tion shall be available in connection with a proCongress or the taking of any personnel action

hibited personnel practice described in subagainst an employee who discloses information section (b)(11). Nothing in this paragraph shall to the Congress.

be considered to affect any authority under sec(c) The head of each agency shall be respon- tion 1215 (relating to disciplinary action). sible for the prevention of prohibited personnel

(Added Pub. L. 95 454, title I, $101(a), Oct. 13, practices, for the compliance with and enforce

1978, 92 Stat. 1114; amended Pub. L. 101–12, $4, ment of applicable civil service laws, rules, and

Apr. 10, 1989, 103 Stat. 32; Pub. L. 101–474, $5(d), regulations, and other aspects of personnel man

Oct. 30, 1990, 104 Stat. 1099; Pub. L. 102-378, 82(5), agement, and for ensuring (in consultation with the Office of Special Counsel) that agency em

Oct. 2, 1992, 106 Stat. 1346; Pub. L. 103–94, $8(c), ployees are informed of the rights and remedies

Oct. 6, 1993, 107 Stat. 1007; Pub, L. 103-359, title available to them under this chapter and chap

V, 8501(c), Oct. 14, 1994, 108 Stat. 3429; Pub. L. ter 12 of this title. Any individual to whom the

103-424, 85, Oct. 29, 1994, 108 Stat. 4363; Pub. L. head of an agency delegates authority for per

104-197, title III, $315(b)(2), Sept. 16, 1996, 110

Stat. 2416, Pub. L. 104–201, div, A, title XI, sonnel management, or for any aspect thereof, shall be similarly responsible within the limits

$1122(a)(1), title XVI, § 1615(b), Sept. 23, 1996, 110 of the delegation.

Stat. 2687, 2741; Pub. L. 105–339, 86(a), (b), (c)(2), (d) This section shall not be construed to ex

Oct. 31, 1998, 112 Stat. 3187, 3188.) tinguish or lessen any effort to achieve equal

REFERENCES IN TEXT employment opportunity through affirmative

The civil service laws, referred to in subsec. (c), are action or any right or remedy available to any

set out in this title. See, particularly, section 3301 et employee or applicant for employment in the

seq. of this title. çivil service under

Section 1308(b) of the Alaska National Interest Lands (1) section 717 of the Civil Rights Act of 1964 Conservation Act, referred to in subsec. (e)(1)(C), is (42 U.S.C. 2000e-16), prohibiting discrimination classified to section 3198(b) of Title 16, Conservation. on the basis of race, color, religion, sex, or na

Section 301(c) of the Foreign Service Act of 1980, retional origin;

ferred to in subsec. (e)(1)(D), is classified to section (2) sections 12 and 15 of the Age Discrimina

3941(c) of Title 22, Foreign Relations and Intercourse. tion in Employment Act of 1967 (29 U.S.C. 631,

AMENDMENTS 633a), prohibiting discrimination on the basis

1998–Subsec. (a)(1). Pub. L. 105_339, 86(c)(2), amended (3) under section 6(d) of the Fair Labor

par. (1) generally. Prior to amendment, par. (1) read as

follows: "For purposes of this title, 'prohibited personStandards Act of 1938 (29 U.S.C. 206(d)), prohib- nel practice' means the following: iting discrimination on the basis of sex;

“(A) Any action described in subsection (b) of this (4) section 501 of the Rehabilitation Act of section. 1973 (29 U.S.C. 791), prohibiting discrimination

“(B) Any action or failure to act that is designated on the basis of handicapping condition; or

a prohibited personnel action under section (5) the provisions of any law, rule, or regula

1599c(a) of title 10." tion prohibiting discrimination on the basis of

Subsec. (b)(10) to (12). Pub. L. 105–339, $6(a), struck marital status or political affiliation.

out “or” at end of par. (10), added par. (11), and redesig

nated former par. (11) as (12). (e)(1) For the purpose of this section, the term

Subsec. (e). Pub. L. 105–339, 86(b), added subsec. (e). sveterans' preference requirement” means any

1996–Subsec, (a)(1). Pub. L. 104-201, § 1615(b), amended of the following provisions of law:

par. (1) generally. Prior to amendment, par. (1) read as (A) Sections 2108, 3305(b), 3309, 3310, 3311, 3312,

follows: "For the purpose of this title, 'prohibited per3313, 3314, 3315, 3316, 3317(b), 3318, 3320, 3351,

Page 11

The section is restated to combine former sections 16a(a) (1st 9 words after last comma) and 20. The prohibition is restated in positive form. The words "officer" and “clerk” are omitted as included in "employee". Reference to oaths taken on promotion is omitted as unnecessary.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report. $ 2905. Oath; renewal

(a) An employee of an Executive agency or an individual employed by the government of the District of Columbia who, on original appointment, subscribed to the oath of office required by section 3331 of this title is not required to renew the oath because of a change in status so long as his service is continuous in the agency in which he is employed, unless, in the opinion of the head of the Executive agency, the Secretary of a military department with respect to an employee of his department, or the Commissioners of the District of Columbia, the public interest so requires.

(b) An individual who, on appointment as an employee of a House of Congress, subscribed to the oath of office required by section 3331 of this title is not required to renew the oath so long as his service as an employee of that House of Congress is continuous. (Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 412.)

HISTORICAL AND REVISION NOTES

In subsection (b), the words “On and after June 26, 1943” are omitted as executed, and the word “officer" is omitted as included in "employee". The words “Executive agency” are coextensive with and substituted for “executive departments or independent establishments, including any agency the majority of the stock of which is owned by the Government of the United States” because of the definition of "Executive agency” in section 105. The words “or the Secretary of a military department with respect to an employee of his department” are inserted to preserve the application of the source law. Before enactment of the National Security Act Amendments of 1949 (63 Stat. 578), the Department of the Army, the Department of the Navy, and the Department of the Air Force were Executive departments. The National Security Act Amendments of 1949 established the Department of Defense as an Executive Department including the Department of the Army, the Department of the Navy, and the Department of the Air Force as military departments, not as Executive departments. However, the source law for this section, which was in effect in 1949, remained applicable to the Secretaries of the military departments by virtue of section 12(g) of the National Security Act Amendments of 1949 (63 Stat. 591), which is set out in the reviser's note for section 301. The words "of the Federal Government” and “and to have the same force and effect as oaths administered by officers having seals” are omitted as unnecessary.

In subsection (c), the word “Constitution” is omitted because "laws", as used in this title, encompasses the Constitution. In subsection (c)(1), the words “of the United States” are omitted as unnecessary. In subsection (c)(2), the words “an individual authorized by local law to administer oaths in the State, District, or territory, or possession of the United States where the oath is administered” are coextensive with and substituted for “notaries public duly appointed in any State, District, or Territory of the United States, by clerks and prothonotaries of courts of record of any such State, District, or Territory, by the deputies of such clerks and prothonotaries, and by all magistrates authorized by the laws of or pertaining to any such State, District, or Territory to administer oaths”.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in title 39 section 1011.

cency who i

of office a or any otza

In paragraph (1), the word "authority” is substituted for "power". The words “or employment” are omitted as included within “appointment”.

In paragraph (1)(B), the words “separation during probation" are substituted for “of the rejection of any such person after probation”. The words “rejection . . after probation” refer to a rejection, i.e., separation, after a portion of the probationary period has been served but before the end of the probationary period. This is so because an individual can be rejected only during the probationary period. After he has completed the probationary period, he can be removed only under procedures governing removals from the competitive service, and removals of this nature are covered by paragraph (E).

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

cy" in section 105. The words “the Secretary of a military department with respect to an employee of his department” are inserted to preserve the application of the source law. Before enactment of the National Security Act Amendments of 1949 (63 Stat. 578), the Department of the Army, the Department of the Navy, and the Department of the Air Force were Executive departments. The National Security Act Amendments of 1949 established the Department of Defense as an Executive Department including the Department of the Army, the Department of the Navy, and the Department of the Air Force as military departments, not as Executive departments. However, the source law for this section, which was in effect in 1949, remained applicable to the Secretaries of the military departments by virtue of section 12(g) of the National Security Act Amendments of 1949 (63 Stat. 591), which is set out in the reviser's note for section 301.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report. $ 2906. Oath; custody

The oath of office taken by an individual under section 3331 of this title shall be delivered by him to, and preserved by, the House of Congress, agency, or court to which the office pertains.

1978—Pub. L. 95-454, $ 906(a)(16), substituted "Office of Personnel Management” for “Civil Service Commission" in section catchline.

Pars. (1), (2). Pub. L. 95 454 substituted "Office of Personnel Management” for “Civil Service Commission” and "Office” for “Commission”.

EFFECTIVE DATE OF 1978 AMENDMENT Amendment by Pub. L. 95 454 effective 90 days after Oct. 13, 1978, see section 907 of Pub. L. 95 454, set out as a note under section 1101 of this title.

(Pub. L. 89-554, Sept. 6, 1966, 80 Stat. 412.)

HISTORICAL AND REVISION NOTES

SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 3302 of this title.

$ 2952. Time of making annual reports

Except when a different time is specifically prescribed by statute, the head of each Executive department or military department shall make the annual reports, required to be submitted to Congress, at the beginning of each regular session of Congress. The reports shall cover the transactions of the preceding year. (Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 413.)

HISTORICAL AND REVISION NOTES

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

SUBCHAPTER II-REPORTS $ 2951. Reports to the Office of Personnel Man

agement The President may prescribe rules which shall provide, as nearly as conditions of good administration warrant, that,

(1) the appointing authority notify the Office of Personnel Management in writing of the following actions and their dates as to each individual selected for appointment in the competitive service from among those who have been examined

(A) appointment and residence of appointee;

(B) separation during probation; (C) transfer; (D) resignation;

(E) removal; and (2) the Office keep records of these actions. (Pub. L. 89-554, Sept. 6, 1966, 80 Stat. 412; Pub. L. 95–454, title IX, 8906(a)(2), (3), (16), Oct. 13, 1978, 92 Stat. 1224, 1226.)

The words “Executive departments are substituted for "department” as the definition of “department” applicable to this section is coextensive with the definition of “Executive department” in section 101.

The words “or military department” are inserted to preserve the application of the source law. Before enactment of the National Security Act Amendments of 1949 (63 Stat. 578), the Department of the Army, the Department of the Navy, and the Department of the Air Force were Executive departments. The National Security Act Amendments of 1949 established the Department of Defense as an Executive Department including the Department of the Army, the Department of the Navy, and the Department of the Air Force as military departments, not as Executive departments. However, the source law for this section, which was in effect in 1949, remained applicable to the Secretaries of the military departments by virtue of section 12(g) of the National Security Act Amendments of 1949 (63 Stat. 591), which is set out in the reviser's note for section 301.

This section was part of title IV of the Revised Statutes. The Act of July 26, 1947, ch. 343, 201(d), as added Aug. 10, 1949, ch. 412, $4, 63 Stat. 579 (former 5 U.S.C. 171-1), which provides “Except to the extent inconsistent with the provisions of this Act (National Security Act of 1947], the provisions of title IV of the Revised

(2) is added to preserve the application to corporations wholly owned by the United States.

The exception of "the General Accounting Office" in subsection (b)(3) is added to preserve application to the executive branch.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report. $ 2954. Information to committees of Congress on

request An Executive agency, on request of the Committee on Government Operations of the House of Representatives, or of any seven members thereof, or on request of the Committee on Governmental Affairs of the Senate, or any five members thereof, shall submit any information requested of it relating to any matter within the jurisdiction of the committee. (Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 413; Pub. L. 103-437, $3(b), Nov. 2, 1994, 108 Stat. 4581.)

Statutes as now or hereafter amended shall be applicable to the Department of Defense” is omitted from this title but is not repealed.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report. $ 2953. Reports to Congress on additional em

ployee requirements (a) Each report, recommendation, or other communication, of an official nature, of an Executive agency which,

(1) relates to pending or proposed legislation which, if enacted, will entail an estimated annual expenditure of appropriated funds in excess of $1,000,000;

(2) is submitted or transmitted to Congress or a committee thereof in compliance with law or on the initiative of the appropriate authority of the executive branch; and

(3) officially proposes or recommends the creation or expansion, either by action of Congress or by administrative action, of a function, activity, or authority of the Executive agency to be in addition to those functions, activities, and authorities thereof existing when the report, recommendation, or other communication is so submitted or transmit

ted; shall contain a statement, concerning the Executive agency, for each of the first 5 fiscal years during which each additional or expanded function, activity, or authority so proposed or recommended is to be in effect, setting forth the following information,

(A) the estimated maximum additional

(i) man-years of civilian employment, by general categories of positions;

(ii) expenditures for personal services; and

(iii) expenditures for all purposes other than personal services; which are attributable to the function, activity, or authority and which will be required to be effected by the Executive agency in connection with the performance thereof; and

(B) such other statement, discussion, explanation, or other information as is considered advisable by the appropriate authority of the executive branch or that is required by Congress or a committee thereof.

(b) Subsection (a) of this section does not apply to

(1) the Central Intelligence Agency;
(2) a Government controlled corporation; or

(3) the General Accounting Office. (Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 413.)

The words "Executive agency” are substituted for "executi department and independent establishment” in view of the definition of "Executive agency" in section 105.

The words “Committee on Government Operations of the House of Representatives” are substituted for “Committee on Expenditures in the Executive Departments of the House of Representatives' on authority of H. Res. 647 of the 82d Congress, adopted July 3, 1952.

The words “Committee on Government Operations of the Senate" are substituted for “Committee on Expenditures in the Executive Departments of the Senate” on authority of S. Res. 280 of the 82d Congress, adopted Mar, 3, 1952.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

AMENDMENTS 1994—Pub. L. 103-437 substituted "Committee on Governmental Affairs of the Senate" for "Committee on Government Operations of the Senate”.

CHANGE OF NAME Committee on Government Operations of House of Representatives treated as referring to Committee on Government Reform and Oversight of House of Representatives by section 1(a) of Pub. L. 104–14, set out as a note under section 21 of Title 2, The Congress. Committee on Government Reform and Oversight of House of Representatives changed to Committee on Government Reform of House of Representatives by House Resolution No. 5, One Hundred Sixth Congress, Jan. 6, 1999.

Subpart B-Employment and

Retention CHAPTER 31-AUTHORITY FOR

EMPLOYMENT SUBCHAPTER I-EMPLOYMENT AUTHORITIES

In subsection (a), the words, “Executive agency” are substituted for "department, agency, or independent establishment of the executive branch of the Federal Government (including any corporation wholly owned by the United States)"' in view of the definition of "Executive agency” in section 105. The exception of “a Government controlled corporation” is subsection (b)

may employ such number of employees of the various classes recognized by chapter 51 of this title as Congress may appropriate for from year

(Pub. L. 89-554, Sept. 6, 1966, 80 Stat. 414.)

Revised Statutes and

Statutes at Large

R.S. $ 169. June 26, 1930, ch. 618, 46

Stat. 817. Sept. 21, 1944, ch. 412, $ 709,

58 Stat. 743

Sec. 3103. Employment at seat of Government only for

services rendered. 3104. Employment of specially qualified scientific

and professional personnel. 3105. Appointment of administrative law judges. 3106. Employment of attorneys; restrictions. 3107. Employment of publicity experts; restric

tions. 3108. Employment of detective agencies; restric

tions. 3109. Employment of experts and consultants; tem

porary or intermittent. 3110. Employment of relatives; restrictions. 3111. Acceptance of volunteer service. 3112. Disabled veterans; noncompetitive appoint

ment. 3113. Restriction on reemployment after convic

tion of certain crimes.
SUBCHAPTER 11—THE SENIOR EXECUTIVE

SERVICE 3131. The Senior Executive Service. 3132. Definitions and exclusions. 3133. Authorization of positions; authority for ap

pointment. 3134. Limitations on noncareer and limited ap

pointments. (3135. Repealed.) 3136. Regulations. SUBCHAPTER III-——THE FEDERAL BUREAU OF INVESTIGATION AND DRUG ENFORCEMENT AD

MINISTRATION SENIOR EXECUTIVE SERVICE 3151. The Federal Bureau of Investigation and Drug

Enforcement Administration Senior Execu

tive Service. 3152. Limitation on pay. SUBCHAPTER IV-TEMPORARY ORGANIZATIONS

ESTABLISHED BY LAW OR EXECUTIVE ORDER 3161. Employment and compensation of employees.

AMENDMENTS 2000—Pub. L. 106–398, $1 [[div. A), title XI, $1101(b)], Oct. 30, 2000, 114 Stat. 1654, 1654A-310, added subchapter IV heading and item 3161.

1997—Pub. L. 105–61, title VI, 8 638(b), Oct. 10, 1997, 111 Stat. 1317, added item 3113.

1995—Pub. L. 104-66, title II, § 2181(a)(2), Dec. 21, 1995, 109 Stat. 732, struck out item 3135 “Biennial report”.

1988–Pub. L. 100-325, $1(b), May 30, 1988, 102 Stat. 581, added subchapter III heading and items 3151 and 3152.

1980-Pub. L. 96-523, $1(b), Dec. 12, 1980, 94 Stat. 3040, substituted “personal assistants for handicapped employees, including blind and” for “reading assistants for blind employees and interpreting assistants for” in item 3102.

1978–Pub. L. 95-454, title III, 88301(b), 302(b)(1), 307(b)(3), title IV, $402(c), Oct. 13, 1978, 92 Stat. 1145, 1146, 1148, 1160, added heading for subchapter I, substituted "reading assistants for blind employees and interpreting assistants for deaf employees” for “readers for blind employees' in item 3102, and added items 3111, 3112, heading for subchapter II, and items 3131 to 3136.

Pub. L. 95–251, $2(c)(2), Mar. 27, 1978, 92 Stat. 184, substituted "administrative law judges” for “hearing examiners” in item 3105. 1967–Pub. L. 90-206, title II, $221(b), Dec. 16, 1967, 81 Stat. 640, added item 3110. SUBCHAPTER I-EMPLOYMENT

AUTHORITIES

AMENDMENTS 1979—Pub. L. 96-54, 82(a)(10), Aug. 14, 1979, 93 Stat. 381, added heading for subchapter I. $3101. General authority to employ

Each Executive agency, military department, and the government of the District of Columbia

The authorization is restated to conform to the style of this title. The word “Executive agency” are substituted for "executive department, independent establishment” in view of the definitions in sections 103, 104, and 105. The source statute (an act to authorize the appointment of employees in the executive branch etc.) applied to the entire executive branch, and government corporations as well as other agencies in the executive branch were included within the words "independent establishment”. The words “or a military department” are inserted to preserve the application of the source statute. Before enactment of the National Security Act Amendments of 1949 (63 Stat. 578), the Department of the Army, the Department of the Navy, and the Department of the Air Force were Executive departments. The National Security Act Amendments of 1949 established the Department of Defense as an Executive department including the Department of the Army, the Department of the Navy, and the Department of the Air Force as military departments, not as Executive departments. However, the source statute for this subsection, which was in effect in 1949, remained applicable to the Secretaries of the military departments by virtue of section 12(g) of the National Security Act Amendments of 1949 (63 Stat. 591), which is set out in the reviser's note for section 301. The words "for services in the District of Columbia or elsewhere” are eliminated as surplusage. The reference to chapter 51 is substituted for the reference to the Classification Act of 1923 because the Act of Oct. 28, 1949, ch. 782, $1106(a), 63 Stat, 972, amended the section to refer to the Classification Act of 1949, which is carried into this title. The proviso in former section 43 and former section 5140 (2d par.) are omitted as superseded by former section 22a, which is carried into section 302. The last sentence of the Act of June 26, 1930, is omitted as executed.

This section was part of title IV of the Revised Statutes. The Act of July 26, 1947, ch. 343, § 201(d), as added Aug. 10, 1949, ch. 412, $4, 63 Stat, 579 (former 5 U.S.C. 171-1), which provides “Except to the extent inconsistent with the provisions of this Act (National Security Act of 1947], the provisions of title IV of the Revised Statutes as now or hereafter amended shall be applicable to the Department of Defense” is omitted from this title but is not repealed.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report. REDUCTION OF FEDERAL FULL-TIME EQUIVALENT

POSITIONS Pub. L. 103–226, 85, Mar. 30, 1994, 108 Stat. 115, as amended by Pub. L. 103-329, title VI, $631, Sept. 30, 1994, 108 Stat. 2424, provided that:

"(a) DEFINITION.–For the purpose of this section, the term 'agency' means an Executive agency (as defined by section 105 of title 5, United States Code), but does not include the General Accounting Office.

"(b) LIMITATIONS ON FULL-TIME EQUIVALENT POSITIONS.—The President, through the Office of Management and Budget (in consultation with the Office of Personnel Management), shall ensure that the total number of full-time equivalent positions in all agencies shall not exceed

worse.)

Similar Thor approp

Pub. L. S.

Pub. L. 10 38,12 Sta Pub. L 1

LIMITATION ON NUMBER OF CIVILIAN EMPLOYEES IN

EXECUTIVE BRANCH Pub. L. 95 454, title III, 8311, Oct. 13, 1978, 92 Stat. 1153, which provided that the total number of civilian employees in the executive branch, on Sept. 30, 1979, on Sept. 30, 1980, and Sept. 30, 1981, shall not exceed the number of such employees on Sept. 30, 1977, terminated by its own terms on Jan. 31, 1981.

Pub. L. 91-47, title V, 8503, July 22, 1969, 83 Stat. 83, repealed section 201 of Pub. L. 90-364, title II, June 28, 1968, 82 Stat. 270, which provided for limitation on the number of civilian officers and employees in the executive branch and which was formerly set out under this section.

FREEZE ON HIRING OF FEDERAL CIVILIAN EMPLOYEES

Memorandum of the President of the United States, dated Jan, 20, 1981, 46 F.R. 9907, provided for a freeze on the hiring of Federal civilian employees in the executive branch.

“(1) 2,084,600 during fiscal year 1994; “(2) 2,043,300 during fiscal year 1995; “(3) 2,003,300 during fiscal year 1996; “(4) 1,963,300 during fiscal year 1997; “(5) 1,922,300 during fiscal year 1998; and

“(6) 1,882,300 during fiscal year 1999. "(c) MONITORING AND NOTIFICATION.—The Office of Management and Budget, after consultation with the Office of Personnel Management, shall

“(1) continuously monitor all agencies and make a determination on the first date of each quarter of each applicable fiscal year of whether the requirements under subsection (b) are met; and

“(2) notify the President and the Congress on the first date of each quarter of each applicable fiscal year of any determination that any requirement of subsection (b) is not met.

"(d) COMPLIANCE.-If, at any time during a fiscal year, the Office of Management and Budget notifies the President and the Congress that any requirement under subsection (b) is not met, no agency may hire any employee for any position in such agency until the Office of Management and Budget notifies the President and the Congress that the total number of full-time equivalent positions for all agencies equals or is less than the applicable number required under subsection (b). “(e) WAIVER.

“(1) EMERGENCIES.-Any provision of this section may be waived upon a determination by the President that

“(A) the existence of a state of war or other national security concern so requires; or

"(B) the existence of an extraordinary emergency threatening life, health, safety, property, or the environment so requires. “(2) AGENCY EFFICIENCY OR CRITICAL MISSION.

"(A) Subsection (d) may be waived, in the case of a particular position or category of positions in an agency, upon a determination of che President that the efficiency of the agency or the performance of a critical agency mission so requires.

“(B) Whenever the President grants a waiver pursuant to subparagraph (A), the President shall take all necessary actions to ensure that the overall lim

itations set forth in subsection (b) are not exceeded. “(f) EMPLOYMENT BACKFILL PREVENTION.

“(1) IN GENERAL.—The total number of funded employee positions in all agencies (excluding the Department of Defense and the Central Intelligence Agency) shall be reduced by one position for each vacancy created by the separation of any employee who has received, or is due to receive, a voluntary separation incentive payment under section 3(a)-(e) [5 U.S.C. 5597 note). For purposes of this subsection, positions and vacancies shall be counted on a full-timeequivalent basis.

"(2) RELATED RESTRICTION.—No funds budgeted for and appropriated by any Act for salaries or expenses of positions eliminated under this subsection may be used for any purpose other than authorized separation costs.

“(3) APPLICABILITY OF BACKFILL PREVENTION PROVISIONS TO AGENCIES OTHERWISE EXEMPTED FROM FTE REDUCTION.

“(A) IN GENERAL.-If any agency is otherwise exempted by any law from the limitations on fulltime equivalent positions or the restrictions on hiring established by this section

“(i) paragraph (1) shall apply to vacancies created in such agency; and

“(ii) the reductions required pursuant to clause (i) shall be made in the number of funded employee positions in such agency.

"(B) WAIVER AUTHORITY.—In the case of a particular position in an agency, subparagraph (A) may be waived upon a determination by the head of the agency that the performance of a critical agency mission requires the waiver.

“(C) RELATION TO OTHER LAW.—No law may be construed as suspending or modifying this para

CITIZENSHIP REQUIREMENT FOR EMPLOYEES

COMPENSATED FROM APPROPRIATED FUNDS Pub. L. 106-554, $1(a)(3) [title VI, 8 605], Dec. 21, 2000, 114 Stat. 2763, 2763A-155, provided that: “Unless otherwise specified during the current fiscal year, no part of any appropriation contained in this or any other Act shall be used to pay the compensation of any officer or employee of the Government of the United States (including any agency the majority of the stock of which is owned by the Government of the United States) whose post of duty is in the continental United States unless such person: (1) is a citizen of the United States; (2) is a person in the service of the United States on the date of the enactment of this Act (Dec. 21, 2000) who, being eligible for citizenship, has filed a declaration of intention to become a citizen of the United States prior to such date and is actually residing in the United States; (3) is a person who owes allegiance to the United States; (4) is an alien from Cuba, Poland, South Vietnam, the countries of the former Soviet Union, or the Baltic countries lawfully admitted to the United States for permanent residence; (5) is a South Vietnamese, Cambodian, or Laotian refugee paroled in the United States after January 1, 1975; or (6) is a national of the People's Republic of China who qualifies for adjustment of status purs ent to the Chinese Student Protection Act of 1992 [Pub. L. 102-404; 8 U.S.C. 1255 note): Provided, That for the purpose of this section, an affidavit signed by any such person shall be considered prima facie evidence that the requirements of this section with respect to his or her status have been complied with: Provided further, That any person making a false affidavit shall be guilty of a felony, and, upon conviction, shall be fined no more than $4,000 or imprisoned for not more than 1 year, or both; Provided further, That the above penal clause shall be in addition to, and not in substitution for, any other provisions of existing law: Provided further, That any payment made to any officer or employee contrary to the provisions of this section shall be recoverable in action by the Federal Government. This section shall not apply to citizens of Ireland, Israel, or the Republic of the Philippines, or to nationals of those countries allied with the United States in a current defense effort, or to international broadcasters employed by the United States Information Agency, or to temporary employment of translators, or to temporary employment in the field service (not to exceed 60 days) as a result of emergencies."

Page 12

July 15, 1952, ch. 758, Ch. XIV, § 1402, 66 Stat. 659. [For abolition of United States Information Agency

Nov. 1, 1951, ch. 664, Ch. XIII, $ 1302, 65 Stat. 755. (other than Broadcasting Board of Governors and Inter

Sept. 6, 1950, ch. 897, Ch. XII, § 1202, 64 Stat. 763. national Broadcasting Bureau), transfer of functions,

Aug. 24, 1949, ch. 506, title III, $302, 63 Stat. 661. and treatment of references thereto, see sections 6531,

Apr. 20, 1948, ch. 219, title II, $ 202, 62 Stat. 193. 6532, and 6551 of Title 22, Foreign Relations and Inter

July 30, 1947, ch. 359, title II, $ 202, 61 Stat. 608. course.)

Mar. 28, 1946, ch. 113, title II, $206, 60 Stat. 80.
Similar provisions were contained in the following

May 3, 1945, ch. 106, title II, $ 206, 59 Stat. 132. prior appropriation acts:

June 27, 1944, ch. 286, title II, § 205, 58 Stat. 385. Pub. L. 106-58, title VI, $ 605, Sept. 29, 1999, 113 Stat.

June 26, 1943, ch. 145, title II, $ 205, 57 Stat. 196. 466.

Citizenship requirement for permanent officers and Pub. L. 105–277, div. A, $ 101(h) [title VI, $ 606), Oct. 21,

employees of Census Bureau, see section 22 of Title 13, 1998, 112 Stat. 2681-480, 2681–513.

Census. Pub. L. 105-61, title VI, $ 606, Oct. 10, 1997, 111 Stat.

Exceptions to citizenship requirement for- 1309.

Department of Defense personnel, see section 1584 Pub. L. 104-208, div. A, title I, § 101(f) [title VI, 8 606),

of Title 10, Armed Forces. Sept. 30, 1996, 110 Stat. 3009_314, 3009_354.

Department of State employees, see sections 2669, Pub. L. 104-52, title VI, 8 606, Nov. 19, 1995, 109 Stat.

2672 of Title 22, Foreign Relations and Inter497.

Pub. L. 103-329, title VI, $ 606, Sept. 30, 1994, 108 Stat. 2416.

Department of the Navy personnel, see section 7473

of Title 10. Pub. L. 103-123, title VI, 8 606, Oct. 28, 1993, 107 Stat.

Library of Congress positions, see section 169 of 1259.

Title 2, The Congress. Pub. L. 102-393, title VI, $ 607, Oct. 6, 1992, 106 Stat. 1766.

National Aeronautics and Space Administration

employees, see section 2473 of Title 42, The Public Pub. L. 102–141, title VI, $ 607, Oct. 28, 1991, 105 Stat. 868.

Health and Welfare.
Pub. L. 101-509, title VI, $603, Nov. 5, 1990, 104 Stat. EMPLOYMENT OF PERSONNEL DURING NATIONAL 1471.

EMERGENCY PROCLAIMED ON DEC. 16, 1950 Pub. L. 101–136, title VI, $ 603, Nov. 3, 1989, 103 Stat. 816.

Section 1310 of act Nov. 1, 1951, ch. 664, Ch. XIII, 65 Pub. L. 100 440, title VI, 8 603, Sept. 22, 1988, 102 Stat.

Stat. 757, as amended June 5, 1952, ch. 369, Ch. XIII, 1751.

$ 1302, 66 Stat. 122; Sept. 1, 1954, ch. 1208, title VI, $ 602, Pub. L. 100-202, $ 101(m) [title VI, $ 603], Dec. 22, 1987,

68 Stat. 1115; Oct. 11, 1962, Pub. L. 87–793, $717(b), 76 101 Stat. 1329-390, 1329 419.

Stat. 858; Aug. 6, 1965, Pub. L. 89–114, 79 Stat. 448; Oct. Pub. L. 99-500, $101(m) [title VI, $ 603], Oct. 18, 1986,

11, 1967, Pub. L. 90–105, 83, 81 Stat. 274; Apr. 21, 1976, 100 Stat. 1783-308, 1783-328, and Pub. L. 99-591, $101(m)

Pub. L. 94–273, $ 4(5), 90 Stat. 377, provided that, upon [title VI, 8603], Oct. 30, 1986, 100 Stat. 3341-308, 3341–328.

the enactment of this Act (Nov. 1, 1951] and until termiPub. L. 99-190, title I, $101(h) [H.R. 3036, title VI,

nation of the national emergency proclaimed by the $ 603], Dec. 19, 1985, 99 Stat. 1291.

President on Dec. 16, 1950, agencies shall use their auPub. L. 98-473, title I, $101(j) (H.R. 5798, title VI, $ 604),

thority to require initial appointment be made on Oct. 12, 1984, 98 Stat. 1963.

other than a permanent basis to limit the number of Pub. L. 98-151, $ 101(f) [H.R. 4139, title VI, $ 603], Nov.

permanent employees, the Civil Service Commission fa14, 1983, 97 Stat. 973.

cilitate the transfer of Federal employees from nPub. L. 97–377, title I, $ 101(a) [incorporating H.R. 4121,

defense to defense activities with reemployment rights title VI, $603, for FY 1982], Dec. 21, 1982, 96 Stat. 1830.

and make use of its authority to prohibit excessively Pub. L. 97–92, $101(a) [H.R. 4121, title VI, 8 603], Dec.

rapid promotions, and agencies review certain positions 15, 1981, 95 Stat. 1183.

annually and report to Congressional committees. All Pub. L. 96-536, $101(a) [incorporating Pub. L. 96–74,

powers and authorities under section 1310 of act Nov. 1, title VI, $ 602], Dec. 16, 1980, 94 Stat. 3166.

1951, as amended, terminated 2 years from Sept. 14, Pub. L. 96-74, title VI, S 602, Sept. 29, 1979, 93 Stat. 574.

1976, pursuant to Pub. L. 94412, title I, § 101, Sept. 14, Pub. L. 95–429, title VI, $ 602, Oct. 10, 1978, 92 Stat.

1976, 90 Stat. 1255 (50 U.S.C. 1601). 1015.

EX. ORD. NO. 12839. REDUCTION OF 100,000 FEDERAL
Pub. L. 95–81, title VI, S 602, July 31, 1977, 91 Stat. 354.

POSITIONS Pub. L. 94-419, title VII, $750, Sept. 22, 1976, 90 Stat. 1299.

Ex. Ord. No. 12839, Feb. 10, 1993, 58 F.R. 8515, provided:
Pub. L. 94–363, title VI, S 602, July 14, 1976, 90 Stat. 977.

By the authority vested in me as President by the Pub. L. 94-212, title VII, 8 753, Feb. 9, 1976, 90 Stat. 177.

Constitution and the laws of the United States of Pub. L. 94–91, title VI, S 602, Aug. 9, 1975, 89 Stat. 458. America, including section 301 of title 3, United States Pub. L. 93-381, title VI, $ 602, Aug. 21, 1974, 88 Stat. 630.

Code, section 3301 of title 5, United States Code, and Pub. L. 93–143, title VI, $ 602, Oct. 30, 1973, 87 Stat. 524.

section 1111 of title 31, United States Code, it is hereby Pub. L. 92–351, title VI, 8602, July 13, 1972, 86 Stat. 487.

ordered as follows: Pub. L. 92–49, title VI, $ 602, July 9, 1971, 85 Stat. 122.

SECTION 1. Limits on Hiring Civilian Personnel. Each exPub. L. 91–439, title V, $ 502, Oct. 7, 1970, 84 Stat. 902.

ecutive department or agency with over 100 employees Pub. L. 91–144, title V, $502, Dec. 11, 1969, 83 Stat. 336.

shall eliminate not less than 4 percent of its civilian Pub. L. 90–479, title V, $ 502, Aug. 12, 1968, 82 Stat. 717. personnel positions (measured on a full-time equivalent Pub. L. 90–147, title V, 8502, Nov. 20, 1967, 81 Stat. 483. (FTE) basis) over the next 3 fiscal years. The positions Pub. L. 89-689, title V, $ 502, Oct. 15, 1966, 80 Stat. 1014. shall be vacated through attrition or early out proPub. L. 89–299, title V, $ 502, Oct. 28, 1965, 79 Stat. 1108. grams established at the discretion of the department Pub. L. 88–511, title V, $ 502, Aug. 30, 1964, 78 Stat. 693.

and agency heads. At least 10 percent of the reductions Pub. L. 88–257, title V, $502, Dec. 31, 1963, 77 Stat. 855. shall come from the Senior Executive Service, GS-15 Pub. L. 87–880, title V, 8502, Oct. 24, 1962, 76 Stat. 1227.

and GS-14 levels or equivalent.
Pub. L. 87–125, title V, 9502, Aug. 3, 1961, 75 Stat. 282. SEC. 2. Coverage. This order applies to all executive
Pub. L. 86-642, title II, $ 202, July 12, 1960, 74 Stat. 476. branch departments and agencies with over 100 employ- Pub. L. 86–79, title II, $ 202, July 8, 1959, 73 Stat. 165. ees (measured on a FTE basis).

SEC. 3. Target Dates. Each department and agency
Pub. L. 85-468, title II, $ 202, June 25, 1958, 72 Stat. 224.
Pub. L. 85-48, title II, $ 202, June 5, 1957, 71 Stat. 53.

shall achieve 25 percent of its total reductions by the June 13, 1956, ch. 385, title II, $ 202, 70 Stat. 280.

end of fiscal year 1993, 62.5 percent by the end of fiscal June 29, 1955, ch. 226, title II, § 202, 69 Stat. 195.

year 1994, and 100 percent by the end of fiscal year 1995.

SEC. 4. Implementation. The Director of the Office of Aug. 26, 1954, ch. 935, Ch. XIII, § 1302, 68 Stat. 828.

Management and Budget shall issue detailed instrucAug. 7, 1953, ch. 340, Ch. XIII, 91302, 67 Stat. 435.

Page 13

HISTORICAL AND REVISION NOTES—CONTINUED

not be employed by the Government of the

United States or the government of the District

Revised Statutes and
Derivation
U.S. Code
Statutes at Large

of Columbia.

(Pub. L. 89_554, Sept. 6, 1966, 80 Stat. 416.) 5 U.S.C. 314.

R.S. $365. Sept. 2, 1958, Pub. L. 85-861,

HISTORICAL AND REVISION NOTES
$7(b), 72 Stat. 1555.

Revised Statutes and
Derivation

U.S. Code
Sections 189 and 365 of the Revised Statutes, as

Statutes at Large amended, are combined and the section is revised to ex

5 U.S.C. 53.

Mar. 3, 1893, ch. 208 (5th par. press the effect of the law since department heads have

under “Public Buildlong employed, with the approval of Congress, attor

ings"'), 27 Stat. 591. neys to advise them in the conduct of their official duties. The law which concentrates the authority for the

The prohibition is restated in positive form. conduct of litigation in the Department of Justice is

Standard changes are made to conform with the deficodified in section 516 of title 28 by this bill.

nitions applicable and the style of this title as outlined The words “Executive department” are substituted

in the preface to the report.
for "department” as the definition of "department” ap-
plicable to R.S. $189 is coextensive with the definition $3109. Employment of experts and consultants;
of "Executive department” in section 101. The words

temporary or intermittent
"or military department" are inserted to preserve the
application of the source law. Before enactment of the (a) For the purpose of this section-
National Security Act Amendments of 1949 (63 Stat.

(1) "agency' has the meaning given it by
578), the Department of the Army, the Department of section 5721 of this title; and
the Navy, and the Department of the Air Force were (2) "appropriation” includes funds made
Executive departments. The National Security Act available by statute under section 9104 of title
Amendments of 1949 established the Department of De- 31.
fense as an Executive Department including the De-
partment of the Army, the Department of the Navy,

(b) When authorized by an appropriation or and the Department of the Air Force as military de- other statute, the head of an agency may propartments, not as Executive departments. However, the cure by contract the temporary (not in excess of source law for this section, which was in effect in 1949, 1 year) or intermittent services of experts or remained applicable to the Secretaries of the military consultants or an organization thereof, includdepartments by virtue of section 12(g) of the National

ing stenographic reporting services. Services Security Act Amendments of 1949 (63 Stat. 591), which

procured under this section are without regard is set out in the reviser's note for section 301.

to R.S. $189 was part of title IV of the Revised Statutes.

(1) the provisions of this title governing apThe Act of July 26, 1947, ch. 343, § 201(d), as added Aug. 1, 1949, ch. 412, $4, 63 Stat. 579 (former 5 U.S.C. 171-1),

pointment in the competitive service; which provides "Except to the extent inconsistent with

(2) chapter 51 and subchapter III of chapter the provisions of this Act (National Security Act of

53 of this title; and 1947), the provisions of title IV of the Revised Statutes (3) section 5 of title 41, except in the case of as now or hereafter amended shall be applicable to the stenographic reporting services by an organiDepartment of Defense” is omitted from this title but zation. is not repealed. Standard changes are made to conform with the defi

However, an agency subject to chapter 51 and nitions applicable and the style of this title as outlined subchapter III of chapter 53 of this title may pay in the preface to the report.

a rate for services under this section in excess of

the daily equivalent of the highest rate payable SECTION REFERRED TO IN OTHER SECTIONS

under section 5332 of this title only when specifiThis section is referred to in title 22 section 2698. cally authorized by the appropriation or other

statute authorizing the procurement of the sery$3107. Employment of publicity experts; restric

ices. tions

(c) Positions in the Senior Executive Service Appropriated funds may not be used to pay a

or the Federal Bureau of Investigation and Drug publicity expert unless specifically appropriated

Enforcement Administration Senior Executive for that purpose.

Service may not be filled under the authority of

subsection (b) of this section. (Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 416.)

(d) The Office of Personnel Management shall HISTORICAL AND REVISION NOTES

prescribe regulations necessary for the adminis

tration of this section. Such regulations shall Revised Statutes and U.S. Code

include Statutes at Large

(1) criteria governing the circumstances in 5 U.S.C. 54.

Oct. 22, 1913, ch. 32, $1 (last which it is appropriate to employ an expert or

par. under "Interstate consultant under the provisions of this secCommerce Commission"),

tion; 38 Stat. 212.

(2) criteria for setting the pay of experts and The prohibition is restated in positive form.

consultants under this section; and Standard changes are made to conform with the defi

(3) provisions to ensure compliance with nitions applicable and the style of this title as outlined

such regulations. in the preface to the report.

(e) Each agency shall report to the Office of $3108. Employment of detective agencies; restric

Personnel Management on an annual basis with tions

respect to

(1) the number of days each expert or conAn individual employed by the Pinkerton De- sultant employed by the agency during the petective Agency, or similar organization, may riod was so employed; and

Page 14

Senior Executive Service position the duties of which will expire at the end of such term;

(6) "limited emergency appointee” means an individual appointed under a nonrenewable appointment, not to exceed 18 months, to a Senior Executive Service position established to meet a bona fide, unanticipated, urgent need;

(7) “noncareer appointee” means an individual in a Senior Executive Service position who is not a career appointee, a limited term appointee, or a limited emergency appointee;

(8) "career reserved position” means a position which is required to be filled by a career appointee and which is designated under subsection (b) of this section; and

(9) “general position" means any position, other than a career reserved position, which may be filled by either a career appointee, noncareer appointee, limited emergency appointee, or limited term appointee.

(b)(1) For the purpose of paragraph (8) of subsection (a) of this section, the Office shall prescribe the criteria and regulations governing the designation of career reserved positions. The criteria and regulations shall provide that a position shall be designated as a career reserved position only if the filling of the position by a career appointee is necessary to ensure impartiality, or the public's confidence in the impartiality, of the Government. The head of each agency shall be responsible for designating career reserved positions in such agency in accordance with such criteria and regulations.

(2) The Office shall periodically review general positions to determine whether the positions should be designated as career reserved. If the Office determines that any such position should be so designated, it shall order the agency to make the designation.

(3) Notwithstanding the provisions of any other law, any position to be designated as a Senior Executive Service position (except a position in the Executive Office of the President) which

(A) is under the Executive Schedule, or for which the rate of basic pay is determined by reference to the Executive Schedule, and

(B) on the day before the date of the enactment of the Civil Service Reform Act of 1978 was specifically required under section 2102 of this title or otherwise required by law to be in

the competitive service, shall be designated as a career reserved position if the position entails direct responsibility to the public for the management or operation of particular government programs or functions.

(4) Not later than March 1 of each year, the head of each agency shall publish in the Federal Register a list of positions in the agency which were career reserved positions during the preceding calendar year.

(c) An agency may file an application with the Office setting forth reasons why it, or a unit thereof, should be excluded from the coverage of this subchapter. The Office shall

(1) review the application and stated reasons,

(2) undertake a review to determine whether the agency or unit should be excluded from the coverage of this subchapter, and

(3) upon completion of its review, recommend to the President whether the agency or unit should be excluded from the coverage

of this subchapter. If the Office recommends that an agency or unit thereof be excluded from the coverage of this subchapter, the President may, on written determination, make the exclusion for the period determined by the President to be appropriate.

(d) Any agency or unit which is excluded from coverage under subsection (c) of this section shall make a sustained effort to bring its personnel system into conformity with the Senior Executive Service to the extent practicable.

(e) The Office may at any time recommend to the President that any exclusion previously granted to an agency or unit thereof under subsection (c) of this section be revoked. Upon recommendation of the Office, the President may revoke, by written determination, any exclusion made under subsection (c) of this section. (f) If

(1) any agency is excluded under subsection (c) of this section, or

(2) any exclusion is revoked under subsection (e) of this section, the Office shall, within 30 days after the action, transmit to the Congress written notice of the exclusion or revocation. (Added Pub. L. 95–454, title IV, 8402(a), Oct. 13, 1978, 92 Stat. 1155; amended Pub. L. 96–54, $2(a)(12), Aug. 14, 1979, 93 Stat. 382; Pub. L. 96–187, title II, $ 203, Jan. 8, 1980, 93 Stat. 1368; Pub. L. 100_325, $2(c), May 30, 1988, 102 Stat. 581; Pub. L. 101–73, title VII, $ 742(c), Aug. 9, 1989, 103 Stat. 437; Pub. L. 101-509, title V, $529 [title I, $101(b)(9)(A)], Nov. 5, 1990, 104 Stat. 1427, 1441; Pub. L. 101-624, title XVIII, § 1841, Nov. 28, 1990, 104 Stat. 3835; Pub. L. 102-496, title IV, $ 402(b), Oct. 24, 1992, 106 Stat. 3184; Pub. L. 102-550, title XIII, § 1351(b), Oct. 28, 1992, 106 Stat. 3969; Pub. L. 103–359, title V, 8501(d), Oct. 14, 1994, 108 Stat. 3429; Pub. L. 104-201, div. A, title XI, $1122(a)(1), Sept. 23, 1996, 110 Stat. 2687.)

REFERENCES IN TEXT Level IV or V of the Executive Schedule, referred to in subsec. (a)(2), are set out in sections 5315 and 5316 of this title.

The date of the enactment of the Civil Service Reform Act of 1978, referred to in subsec. (b)(3), is the date of the enactment of Pub. L. 95-454, which was approved Oct. 13, 1978.

AMENDMENTS 1996–Subsec. (a)(1)(B). Pub. L. 104-201 substituted “National Imagery and Mapping Agency” for “Central Imagery Office".

1994–Subsec. (a)(1)(B). Pub. L. 103–359 inserted "the Central Imagery Office,” after “Defense Intelligence Agency,”. 1992–Subsec. (a)(1)(B). Pub. L. 102-496 inserted

Department of Defense intelligence activities the civilian employees of which are subject to section 1590 of title 10," after “National Security Agency''.

Subsec. (a)(1)(D). Pub. L. 102–550 inserted "the Office of Federal Housing Enterprise Oversight of the Department of Housing and Urban Development,” after “Farm Credit Administration,”.

1990_Subsec. (a)(1)(D). Pub. L. 101–624 inserted reference to Farm Credit Administration,

Subsec. (a)(2). Pub. L. 101–509 substituted "classified above GS-15 pursuant to section 5108” for “in GS-16, 17, or 18 of the General Schedule''.

Page 15

Appointments to scientific and professional

positions. Appointments of retired members of the

armed forces to positions in the Depart

ment of Defense. Civil service employment information. Selective Service registration. Appointments of military reserve technicians

to positions in the competitive service. Government-wide list of vacant positions. Preference eligibles; administrative redress. Preference eligibles; judicial redress. Preference eligibles; remedy. SUBCHAPTER 11—OATH OF OFFICE

3330. 3330a. 3330b. 3330c.

3331. Oath of office. 3332. Officer affidavit; no consideration paid for ap

pointment. 3333. Employee affidavit; loyalty and striking

against the Government. SUBCHAPTER III-DETAILS, VACANCIES, AND

APPOINTMENTS 3341. Details; within Executive or military depart

ments. [3342. Repealed.] 3343. Details; to international organizations. 3344. Details; administrative law judges. 3345. Acting officer. 3346. Time limitation. 3347. Exclusivity. 3348. Vacant office. 3349. Reporting of vacancies. 3349a. Presidential inaugural transitions. 3349b. Holdover provisions relating to certain inde

pendent establishments.1 3349c. Exclusion of certain officers. 3349d. Notification of intent to nominate during cer

tain recesses or adjournments.

SUBCHAPTER IV-TRANSFERS 3351. Preference eligibles; transfer; physical quali

fications; waiver. 3352. Preference in transfers for employees making

certain disclosures.

SUBCHAPTER V-PROMOTION 3361. Promotion; competitive service; examination. 3362. Promotion; effect of incentive award. 3363 Preference eligibles; promotion; physical

qualifications; waiver. [3364. Repealed.] SUBCHAPTER VI-ASSIGNMENTS TO AND FROM

STATES

1998/Pub. L. 105_339, $3(b), Oct. 31, 1998, 112 Stat. 3184, added items 3330a to 3330c.

Pub. L. 105-277, div. C, title I, § 151(c)(1), Oct. 21, 1998, 112 Stat. 2681-616, substituted "DETAILS, VACANCIES, AND APPOINTMENTS” for “DETAILS" in heading for subchapter III, “Acting officer” for “Details; to office of head of Executive agency or military department" in item 3345, “Time limitation” for “Details; to subordinate offices” in item 3346, "Exclusivity” for “Details; Presidential authority” in item 3347, "Vacant office": for ails; mited in time" in item 3348, and "Reporting of vacancies” for “Details; to fill vacancies; restrictions” in item 3349 and added items 3349a to 3349d.

1996—Pub. L. 104-197, title III, § 315(b)(1), Sept. 16, 1996, 110 Stat. 2416, substituted “Competitive service; recommendations of Senators or Representatives” for “Political recommendations" in item 3303.

Pub. L. 104-106, div. A, title X, 81037(b)(2), Feb. 10, 1996, 110 Stat. 432, which directed substitution of "3330. Government-wide list of vacant positions" for the item relating to section 3329, as added by section 4431(b) of Pub. L. 104-484, could not be executed because of the intervening amendment by Pub. L. 104-52, $4(2). See 1995 Amendment note below,

1995Pub. L. 104–52, title IV, $4(2), Nov. 19, 1995, 109 Stat. 490, redesignated item 3329 “Government-wide list of vacant positions” as item 3330.

1993—Pub. L. 103–94, 88(b), Oct. 6, 1993, 107 Stat. 1007, substituted “Political recommendations” for “Competitive service; recommendations of Senators or Representatives" in item 3303.

1992—Pub. L. 102-484, div. A, title V, $544(b), div. D, title XLIV, $ 4431(b), Oct. 23, 1992, 106 Stat. 2415, 2720, added two items 3329.

Pub. L. 102–378, $2(13)(B), Oct. 2, 1992, 106 Stat. 1347, struck out item 3342 “Federal participants in executive exchange programs”.

1990_-Pub. L. 101-509, title V, $529 [title I, $101(b)(9)(C)(iii)], Nov. 5, 1990, 104 Stat. 1427, 1441, substituted “Appointments to positions classified above GS-15” for “Appointments at GS-16, 17, and 18" in item 3324.

Pub. L. 101-416, $2(a)(2), Oct. 12, 1990, 104 Stat. 903, added item 3342.

1989–Pub. L. 101–194, title V, 9506(a)(2), Nov. 30, 1989, 103 Stat. 1758, added item 3393a.

Pub. L. 101–12, $5(b), Apr. 10, 1989, 103 Stat. 33, added item 3352.

1988–Pub. L. 100-398, $7(a)(3), Aug. 17, 1988, 102 Stat. 988, inserted “agency” after "Executive" in item 3345.

1985—Pub. L. 99–145, title XVI, S 1622(a)(2), Nov. 8, 1985, 99 Stat. 777, added item 3328.

1979–Pub. L. 96-54, 82(a)(13), Aug. 14, 1979, 93 Stat. 382, struck out item 3315a “Registers; individuals receiving compensation for work injuries”.

1978—Pub. L. 95-454, title III, SS 303(b), 307(h)(2), 309(b), title IV, $403(b), title x, 8906(c)(4), Oct. 13, 1978, 92 Stat. 1146, 1149, 1152, 1165, 1227, substituted "probationary period” for “probation; period of"' in item 3321, struck out item 3319 “Competitive service; selection; members of family restriction", added items 3327 and 3391 to 3397, and struck out items 3391 to 3398.

Pub. L. 95–437, 83(b), Oct. 10, 1978, 92 Stat. 1058, added heading for subchapter VII and items 3391 to 3398.

Pub. L. 95–256, $ 5(b)(2), Apr. 6, 1978, 92 Stat. 191, struck out item 3322 "Competitive service; temporary appointments after age 70”.

Pub. L. 95–251, 82(c)(3), Mar. 27, 1978, 92 Stat. 184, substituted “administrative law judges” for "hearing examiners" in item 3344.

3371. Definitions. 3372. General provisions. 3373. Assignments of employees to State or local

governments. 1 3374. Assignments of employees from State or local

governments. 3375. Travel expenses. 3376. Regulations.

SUBCHAPTER VII--AIR TRAFFIC CONTROLLERS 3381. Training. 3382. Involuntary separation for retirement. 3383. Determinations; review procedures. 3384. Regulations. 3385. Effect on other authority. SUBCHAPTER VIII-APPOINTMENT, REASSIGN

MENT, TRANSFER, AND DEVELOPMENT IN THE

SENIOR EXECUTIVE SERVICE 3391. Definitions. 3392. General appointment provisions. 3393. Career appointments.

Page 16

such property shall be disposed of in accordance with applicable provisions of law governing the disposal of Federal property. "SEC. 8. REPORTS.

"The Council shall transmit to the President and each House of the Congress

“(1) within 1 and 2 years, respectively, after the date on which the Council first meets, reports containing its preliminary findings and recommendations; and

“(2) within 3 years after the date on which the Council first meets, a final report containing a detailed statement of the findings and conclusions of the Council, together with its recommendations for such legislation or administrative actions as it considers appropriate. "SEC. 9. COMMENCEMENT; TERMINATION. "(a) COMMENCEMENT.-Appointments under section 5 shall be made, and the Council shall first meet, within 90 days after the date of the enactment of this Act [Aug. 14, 1990).

“(b) TERMINATION.—The Council shall cease to exist upon transmitting its final report under section 8(2). "SEC. 10. AUTHORIZATION.

“There is authorized to be appropriated such sums as may be necessary to carry out this Act.” Ex. ORD. NO. 8743. EXTENDING THE CLASSIFIED CIVIL

SERVICE Ex. Ord. No. 8743, Apr. 23, 1941, as amended by Ex. Ord. No. 9230, Aug. 20, 1942; Ex. Ord. No. 9678, Jan. 14, 1946; Ex. Ord. No. 9712, Apr. 13, 1946; Ex. Ord. No. 12107, Dec. 28, 1978, 44 F.R. 1055, provided:

By virtue of the authority vested in me by section 1 of the act of November 26, 1940, entitled “Extending the Classified Executive Civil Service of the United States" (54 Stat. 1211), by the Civil Service Act (22 Stat. 403), and by section 1753 of the Revised Statutes of the United States (sections 3301 and 7301 of this title], it is hereby ordered as follows:

SECTION 1. All offices and positions in the executive civil service of the United States except (1) those that are temporary, (2) those expressly excepted from the provisions of section 1 of the said act of November 26, 1940, (3) those excepted from the classified service under Schedules A and B of the Civil Service Rules, and (4) those which now have a classified status, are hereby covered into the classified civil service of the Government.

SECTION 2. Section 1 of this order shall become effective on January 1, 1942, except that as to positions affected thereby which are vacant at any time after June 30, 1941, and before January 1, 1942, it shall become effective when the vacancies first exist during such period, and appointments to such vacant positions shall be made in accordance with the Civil Service Rules as amended by section 3 of this order, unless prior express permission is given by the Office of Personnel Management for appointment without regard thereto.

SECTION 3. (a) Upon consideration of the report of the Committee on Civil Service Improvement (House Document No. 118, 77th Congress) appointed by Executive Order No. 8044 of January 31, 1939, it is hereby found and determined that the regulations and procedures hereinafter prescribed in this section with respect to attorney positions in the classified civil service are required by the conditions of good administration.

(b) There is hereby created in the Office of Personnel Management (hereinafter referred to as the Office) a board to be known as the Board of Legal Examiners (hereinafter referred to as the Board). The Board shall consist of the Solicitor General of the United States and the chief law officer of the Office of Personnel Management, as members er officio, and nine members to be appointed by the President, four of whom shall be attorneys chosen from the chief officers of the Executive departments, agencies or corporate instrumentalities of the Government, two from the law-teaching profes

sion, and three from attorneys engaged in private practice. The President shall designate the chairman of the Board. Five members shall constitute a quorum, and the Board may transact business notwithstanding vacancies thereon. Members of the Board shall receive no salary as such, but shall be entitled to necessary expenses incurred in the performance of their duties hereunder.

(c) It shall be the duty of the Board to promote the development of a merit system for the recruitment, selection, appointment, promotion, and transfer of attorneys in the classified civil service in accordance with the general procedures outlined in Plan A of the report of the Committee on Civil Service Improvement, appointed by Executive Order No. 8044 of January 31, 1939.

(d) The Board, in consultation with the Office, shall determine the regulations and procedures under this section governing the recruitment and examination of applicants for attorney positions, and the selection, appointment, promotion and transfer of attorneys, in the classified service.

(e) The Office shall in the manner determined by the Board establish a register or registers for attorney positions in the classified service and such positions shall thereafter be filled from such registers as are designated by the Board. Unless otherwise determined by the Board, any register so established shall not be in effect for a period longer than one year from the date of its establishment. Upon request of the Board, the Office shall appoint regional or local boards of examiners composed of persons approved by the Board, within or without the Federal service, to interview and examine applicants as the Board shall direct.

(f) The number of names to be placed upon any register of eligibles for attorney positions shall be limited to the number recommended by the Board; and such registers shall not be ranked according to the ratings received by the eligibles, except that persons entitled to veterans' preference as defined in section 1 of Civil Service Rule VI shall be appropriately designated thereon.

(g) Any person whose name has been placed upon three registers of eligibles covering positions of the same grade, and who has not been appointed therefrom, shall not thereafter be eligible for placement upon any subsequently established register covering positions of such grade.

(h) So far as practicable and consistent with good administration, the eligibles on any register for attorney positions and appointments for such register shall be apportioned among the several States and Territories and the District of Columbia upon the basis of population as ascertained in the last preceding census. The Office shall certify to the appointing officer for each vacancy all the eligibles on the appropriate register except those whose appointment would, in the determination of the Board, be inconsistent with the apportionment policy herein prescribed. The appointing officer shall make selections for any vacancy or vacancies in attorney positions from the register so certified, with sole reference to merit and fitness.

(i) Any position affected by this section may be filled before appropriate registers have been established pursuant to this section only by a person whose appointment is approved by the Board. The Board may require as a condition of its approval that persons thus proposed for appointment pass a noncompetitive examination and may designate examining committees composed of persons within or without the Federal service to conduct such examinations. Persons whose appointment was approved by the Board prior to March 16, 1942, and who pass a noncompetitive examination prescribed by the Board shall be eligible for a classified civil-service status after the expiration of six months from the date of appointment upon compliance with the provisions of Section 6 of Civil Service Rule II other than those provisions relating to examination. Effective March 16, 1942, all appointments to attorney and law clerk (trainee) positions shall be for the duration of the present war and for six months thereafter unless specifically limited to a shorter period.

Jan. 23, 1956; Ex. Ord. No. 10745, Dec. 12, 1957, 22 F.R. 10025; Ex. Ord. No. 10869, Mar. 9, 1960, 25 F.R. 2073; Ex. Ord. No. 11315, Nov. 17, 1966, 31 F.R. 14729; Ex. Ord. No. 11839, Feb. 15, 1975, 40 F.R. 7351; Ex. Ord. No. 11856, May 7, 1975, 40 F.R. 20259; Ex. Ord. No. 11887, Nov. 4, 1975, 40 F.R. 51411; Ex. Ord. No. 11935; Sept. 2, 1976, 41 F.R. 37301; Ex. Ord. No. 12021, Nov. 30, 1977, 42 F.R. 61237; Ex. Ord. No. 12043, Mar. 7, 1978, 43 F.R. 9773; Ex, Ord. No. 12107, Dec. 28, 1978, 44 F.R. 1055; Ex. Ord. No. 12125, Mar. 15, 1979, 44 F.R. 16879; Ex. Ord. No. 12148, July 20, 1979, 44 F.R. 43239; Ex. Ord. No. 12300, Mar. 23, 1981, 46 F.R. 18683; Ex. Ord. No. 12748, Feb. 1, 1991, 56 F.R. 4521; Ex. Ord. No. 12896, Feb. 3, 1994, 59 F.R. 5515; Ex. Ord. No. 12940, Nov. 28, 1994, 59 F.R. 61519; Ex. Ord. No. 13124, $2(b), June 4, 1999, 64 F.R. 31103, Ex. Ord. No. 13197, Jan. 18, 2001, 66 F.R. 7853; provided:

PART I-CIVIL SERVICE RULES SECTION 101. The Civil Service Rules are hereby amended to read as follows:

di the Civil S To pursda! Ud Role VI

6) "Excep o the word cil service il service more

RULE I-COVERAGE AND DEFINITIONS

(j) The incumbent of any attorney position covered into the classified service by section 1 of this order may acquire a classified civil-service status in accordance with the provisions of Section 2(a) of the act of November 26, 1940 (54 Stat. 1211) or, in the discretion of the Board and when applicable, Section 6, of Civil Service Rule II: Provided, That the noncompetitive examination required thereunder shall be prescribed by the Office with the approval of the Board.

(k) The Office with the approval of the Board shall appoint a competent person to act as Executive Secretary to the Board; and the Office shall furnish such further professionals, clerical, stenographic, and other assistants as may be necessary to carry out the provisions of this section.

(1) The Civil Service Rules are hereby amended to the extent necessary to give effect to the provisions of this section.

SECTION 4. The noncompetitive examinations prescribed pursuant to sections 3 and 6 of this order and section 2(a) of the said act of November 26, 1940, shall, among other things, require any person taking such examination to meet such reasonable standards of physical fitness and personal suitability as the Office of Personnel Management may prescribe.

SECTION 5. Persons who on the effective date of section 1 of this order are on furlough or leave without pay from any position covered into the classified service by that section may be recalled to duty within one year of the date that they are furloughed or given leave without pay, and may be continued in such positions thereafter but shall not thereby acquire a classified civilservice status. If they are not recalled to duty within the time specified herein, they shall be separated from the service.

SECTION 6. (a) Any person who, in order to perform active service with the military or naval forces of the United States, has left a position (other than a temporary position) which is covered into the classified civil service under section 1 of this order, shall be reinstated in such position or to a position of like seniority, status, and pay in the same department or agency, and may, upon reinstatement, acquire a classified civilservice status: Provided, (1) that he has been honorably discharged from the military or naval service, (2) that he makes application for reinstatement within 90 days after termination of his service with the armed forces or of hospitalization continuing after discharge for a period of not more than one year, and (3) that he qualifies in such suitable noncompetitive examination as the Office may prescribe.

(b) Any person who, in order to perform active service with the military or naval forces of the United States, has left a position in any department or agency (other than a temporary position) which is covered into the classified civil service under section 1 of this order, may, upon his applications and upon the request of the head of the same or any other department or agency, be reinstated in any position for which the Office finds he is qualified, and upon reinstatement shall acquire a classified civil-service status: Provided, (1) that he has been honorably discharged from the military or naval service, and (2) that he qualifies in such suitable noncompetitive examination as the Office may prescribe.

SECTION 7. Executive Order No. 8044 of January 31, 1939, is hereby revoked so far as it applies to positions covered into the classified civil service by this order.

$ 1.1. POSITIONS AND EMPLOYEES AFFECTED BY THESE

RULES These Rules shall apply to all positions in the competitive service and to all incumbents of such positions. Except as expressly provided in the Rule concerned, these Rules shall not apply to positions and employees in the excepted service.

$1.2. EXTENT OF THE COMPETITIVE SERVICE The competitive service shall include: (a) All civilian positions in the executive branch of the Government unless specifically excepted therefrom by or pursuant to statute or by the Office of Personnel Management (hereafter referred to in these Rules as the Office) under section 6.1 of Rule VI; and (b) all positions in the legislative and judicial branches of the Federal Government and in the Government of the District of Columbia which are specifically made subject to the civilservice laws by statute. The Office is authorized and directed to determine finally whether a position is in the competitive service.

$ 1.3. DEFINITIONS As used in these Rules:

(a) “Competitive service” shall have the same meaning as the words “classified service", or "classified (competitive) service”, or “classified civil service” as defined in existing statutes and executive orders.

(b) “Competitive position” shall mean a position in the competitive service.

(c) “Competitive status” shall mean basic eligibility to be noncompetitively selected to fill a vacancy in a competitive position. A competitive status shall be acquired by career-conditional or

career appointment through open competitive examination upon satisfactory completion of a probationary period, or may be granted by statute, executive order, or the Civil Service Rules without competitive examination, person with competitive status may be promoted, transferred, reassigned, reinstated, or demoted without taking an open competitive examination, subject to the conditions prescribed by the Civil Service Rules and Regulations.

(d) An employee shall be considered as being in the competitive service when he has a competitive status and occupies a competitive position unless he is serving under a temporary appointment: Provided, That an employee who is in the competitive service at the time his position is first listed under Schedule A, B, or C shall be considered as continuing in the competitive service as long as he continues to occupy such position.

(e) “Tenure” shall mean the period of time an employee may reasonably expect to serve under his current appointment. Tenure shall be granted and governed by the type of appointment under which an employee is currently serving without regard to whether

Ex. Ord. No. 9367, Aug. 4, 1943, 8 F.R. 11017, which prohibited, with certain exceptions, instructions of applicants for civil service and foreign service examinations by officers or employees of the government, was revoked by Ex. Ord. No. 11408, Apr. 25, 1968, 33 F.R. 6459.

EX. ORD. NO. 10577. CIVIL SERVICE RULES Ex. Ord. No. 10577, Nov. 22, 1954, 19 F.R. 7521, eff. Jan. 23, 1955, as amended by Ex. Ord. No. 10641, Oct. 26, 1955, 20 F.R. 8137; Ex. Ord. No. 10675, Aug. 21, 1956, 21 F.R. 6327

he has a competitive status or whether his appointment is to a competitive position or an excepted position,

$1.4. EXTENT OF THE EXCEPTED SERVICE (a) The excepted service shall include all civilian positions in the executive branch of the Government which are specifically excepted from the requirements of the Civil Service Act or from the competitive service by or pursuant to statute or by the Office under section 6.1 of Rule VI.

(b) "Excepted service" shall have the same meaning as the words "unclassified service", or "unclassified civil service", or "positions outside the competitive civil service" as used in existing statutes and executive orders.

(C) “Excepted position” shall have the same meaning as "unclassified position", or "position excepted by law", or "position excepted by executive order”, or "position excepted by Civil Service Rule", or "position outside the competitive service" as used in existing statutes and executive orders.

RULE II-APPOINTMENT THROUGH THE COMPETITIVE

SYSTEM

appointment if the limitation on the number of permanent employees in the Federal civil service established under subsection (b) of this section would be exceeded thereby. Persons selected from competitive civil service registers for other than temporary appointment shall be given career-conditional appointments: Provided, That career appointments shall be given to the following classes of eligibles: (1) Persons whose appointments are required by statute to be made on a permanent basis; (2) employees serving under career appointments at the time of selections from such registers; (3) former employees who have eligibility for career appointments upon reinstatement; and (4) to the extent permitted by law, persons appointed to positions in the field service of the Post Office Department for which salary rates are fixed by the act of July 6, 1945, 59 Stat. 435, as heretofore or hereafter amended and supplemented.

(b) Under the career-conditional appointment system there shall be a limit on the number of permanent employees in the Federal civil service which shall be the ceiling established by section 1310 of the Supplemental Appropriation Act, 1952 (65 Stat. 757), as amended [set out as a note under section 3101 of this title). In the event section 1310, supra, is repealed, the Office is authorized to fix such limitation on the number of permanent employees in the Federal civil service as it finds necessary to meet the needs of the service.

(c) The Office may determine the types, duration, and conditions of indefinite and temporary appointments, and may prescribe the method for replacing persons holding such appointments.

$2.3. APPORTIONMENT Subject to such modifications as the Office finds to be necessary in the interest of good administration, appointments to positions in agencies' headquarters offices which are located within the metropolitan area of Washington, D.C., shall be made so as to maintain the apportionment of appointments among the several States, Territories, and the District of Columbia upon the basis of population.

$2.4. PROBATIONARY PERIOD Persons selected from registers of eligibles for career or career-conditional appointment and employees promoted, transferred, or otherwise assigned, for the first time, to supervisory or managerial positions shall be required to serve a probationary period under terms and conditions prescribed by the Office.

RULE III—NONCOMPETITIVE ACQUISITION OF STATUS

$2.1. COMPETITIVE EXAMINATIONS AND ELIGIBLE

REGISTERS (a) The Office shall be responsible for open competitive examinations for admission to the competitive service which will fairly test the relative capacity and fitness of the persons examined for the position to be filled. The Office is authorized to establish standards with respect to citizenship, age, education, training and experience, suitability, and physical and mental fitness, and for residence or other requirements which applicants must meet to be admitted to or rated in examinations.

(b) In addition to the names of persons who qualify in competitive examinations, the names of persons who have lost eligibility on a career or career-conditional register because of service in the armed forces, and the names of persons who lost opportunity for certification or who have served under career or career-conditional appointment when the Office determines that they should be given certification, may also be entered at such places on appropriate registers and under such conditions as the Office may prescribe.

(c) Whenever the Office of Personnel Management (1) is unable to certify a sufficient number of names to permit the appointing officer to consider three eligibles for appointment to a fourth-class postmaster position in accordance with the regular procedure, or (2) finds that a particular rate of compensation for fourth-class postmaster positions is too low to warrant regular competitive examinations for such positions, may authorize appointment to any such position or positions in accordance with such procedure as may be prescribed by the Office. Persons appointed under this subsection may acquire competitive status subject to satisfactory completion of a probationary period prescribed by the Office.

$ 2.2. APPOINTMENTS (a) The Office shall establish and administer a careerconditional appointment

ystem for positions subject to competitive examination which will permit adjustment of the career service to necessary fluctuations in Federal employment, and provide an equitable and orderly system for stabilizing the Federal work force. A competitive status shall be acquired by a career-conditional appointee upon satisfactory completion of a probationary period, but the appointee shall have careerconditional tenure for a period of service to be prescribed by regulation of the Office. When an employee has completed the required period of service his appointment shall be converted to a career appointment without time limitation: Provided, That his career-conditional appointment shall not be converted to a career

$3.1. CLASSES OF PERSONS WHO MAY NONCOMPETITIVELY

ACQUIRE STATUS (a) Upon recommendation by the agency concerned, and subject to such noncompetitive examination, time limits, or other requirements as the Office may prescribe, the following classes of persons may acquire a competitive status without competitive examination:

(1) A person holding a permanent position when it is placed in the competitive service by statute or executive order or is otherwise made subject to competitive examination.

(2) A disabled veteran who, in a manner satisfactory to the Office, has completed a course of training in the executive branch of the Government prescribed by the Administrator of Veterans' Affairs in accordance with the act of March 24, 1943, 57 Stat. 43.

(3) An employee who has served at least two years in the immediate office of the President or on the White House Staff and who is transferred to a competitive position at the request of an agency.

(4) An employee who was serving when his name was reached for certification on a civil-service register appropriate for the position in which he was serving: Provided, That the recommendation for competitive status is made prior to expiration of the register on which his name appears or is made during a period of continuous

RULE V-REGULATIONS, INVESTIGATIONS, EVALUATION,

AND ENFORCEMENT

dies for any mellation 12 Director sestigation

service since his name was reached: Provided further, That the register was being used for appointments conferring competitive status at the time his name was reached.

(b) Upon recommendation by the employing agency, and subject to such requirements as the Office of Personnel Management may prescribe, the following classes of handicapped employees may acquire competitive status without competitive examination:

(1) A severely physically handicapped employee who completes at least two years of satisfactory service in a position excepted from the competitive service.

(2) A mentally retarded employee who completes at least two years of satisfactory service in a position excepted from the competitive service.

(3) An employee with psychiatric disabilities who completes at least 2 years of satisfactory service in a position excepted from the competitive service.

$3.2. APPOINTMENTS WITHOUT COMPETITIVE EXAMINATION

IN RARE CASES Subject to receipt of satisfactory evidence of the qualifications of the person to be appointed, the Office may authorize an appointment in the competitive service without competitive examination whenever it finds that the duties or compensation of the position are such, or that qualified persons are so rare, that, in the interest of good civil-service administration, the position cannot be filled through open competitive examination. Any person heretofore or hereafter appointed under this section shall acquire a competitive status upon completion of at least one year of satisfactory service and compliance with such requirements as the Office may prescribe. Detailed statements of the reasons for the noncompetitive appointments made under this section shall be published in the Office's annual reports.

$3.3. CONVERSION OF APPOINTMENTS Any person who acquires a competitive status under this Rule shall have his appointment converted to career-conditional appointment unless he meets the service requirement for career appointment prescribed under section 2.2 (a) of Rule II.

$5.1, CIVIL SERVICE REGULATIONS The Director, Office of Personnel Management, shall promulgate and enforce regulations necessary to carry out the provisions of the Civil Service Act and the Veterans' Preference Act, as reenacted in Title 5, United States Code (now covered by this chapter and chapter 35 of this title], the Civil Service Rules, and all other statutes and Executive orders imposing responsibilities on the Office. The Director is authorized, whenever there are practical difficulties and unnecessary hardships in complying with the strict letter of the regulation, to grant a variation from the strict letter of the regulation if such a variation is within the spirit of the regulations, and the efficiency of the Government and the integrity of the competitive service are protected and promoted. Whenever a variation is granted the Director shall note the official record to show: (1) the particular practical difficulty or hardship involved, (2) what is permitted in place of what is required by regulation, (3) the circumstances which protect or promote the efficiency of the Government and the integrity of the competitive service, and (4) a statement limiting the application of the variation to the continuation of the conditions which gave rise to it. Like variations shall be granted whenever like conditions exist. All such decisions and information concerning variations noted in the official record shall be published promptly in a Federal Personnel Manual, Letter or Bulletin and in the Director's next annual report.

$5.2. INVESTIGATION AND EVALUATIONS The Director may secure effective implementation of the civil service laws, rules, and regulations, and all Executive orders imposing responsibilities on the Office by:

(a) Investigating the qualifications and suitability of applicants for positions in the competitive service. The Director may require appointments to be made subject to investigation to enable the Director to determine, after appointment, that the requirements of law or the civil service rules and regulations have been met.

(b) Evaluating the effectiveness of: (1) personnel policies, programs, and operations of Executive and other Federal agencies subject to the jurisdiction of the Office, including their effectiveness with regard to merit selection and employee development; (2) agency compliance with and enforcement of applicable laws, rules, regulations and office directives; and (3) agency personnel management evaluation systems,

(c) Investigating, or directing an agency to investigate and report on, apparent violations of applicable laws, rules, regulations, or directives requiring corrective action, found in the course of an evaluation.

$5.3. ENFORCEMENT (a) The Director is authorized to ensure enforcement of the civil service laws, rules, and regulations, and all applicable Executive orders, by:

(1) Instructing an agency to separate or take other action against an employee serving an appointment subject to investigation when the Director finds that the employee is disqualified for Federal employment. Where the employee or the agency appeals the Director's finding that a separation or other action is necessary, the Director may instruct the agency as to whether or not the employee should remain on duty and continue to receive pay pending adjudication of the appeal: Provided, That when an agency separates or takes other action against an employee pursuant to the Director's instructions, and the Director, on the basis of new evidence, subsequently reverses the initial decision as to the employee's qualifications and suitability, the agency shall, upon request of the Director, restore the employee to duty or otherwise reverse any action taken.

(2) Reporting the results of evaluation or investigations to the head of the agency concerned with instruc

RULE IV-PROHIBITED PRACTICES

$4.1. [Revoked by Ex. Ord. No. 12896, Feb. 3, 1994, 59 F.R.

5515.]

$4.2. PROHIBITION AGAINST RACIAL, POLITICAL OR

RELIGIOUS DISCRIMINATION No person employed in the executive branch of the Federal Government who has authority to take or recommend any personnel action with respect to any person who is an employee in the competitive service or any eligible or applicant for a position in the competitive service shall make any inquiry concerning the race, political affiliation or religious beliefs of any such employee, eligible, or applicant. All disclosures concerning such matters shall be ignored, except as to such membership in political parties or organizations as constitutes by law a disqualification for Government employment. No discrimination shall be exercised, threatened, or promised by any person in the executive branch of the Federal Government against or in favor of any employee in the competitive service, or any eligible or applicant for a position in the competitive service because of his race, political affiliation or religious beliefs, except as may be authorized or required by law.

84.3. PROHIBITION AGAINST SECURING WITHDRAWAL FROM

COMPETITION No person shall influence another person to withdraw from competition for any position in the competitive service for the purpose of either improving or injuring the prospects of any applicant for appointment.

Positions other than those of a confidential or policydetermining character for which it is not practicable to hold a competitive examination shall be listed in Schedule B. Appointments to these positions shall be subject to such noncompetitive examinations as may be prescribed by the Office.

gement et sary to me t and ti: itle 5, Coz

and dig and all oth esponsibilit: -zd, wie-7

Positions of a confidential or policy-determining character shall be listed in Schedule C.

$6.3. METHOD OF FILLING EXCEPTED POSITIONS AND

STATUS OF INCUMBENTS

tions for any corrective action necessary, including cancellation of personnel actions where appropriate. The Director's findings resulting from evaluations or investigations are binding unless changed as a result of agency evidence and arguments against them. If, during the course of any evaluation or investigation under this Section, the Director finds evidence of matters which come within the investigative and prosecutorial jurisdiction of the Special Counsel of the Merit Systems Protection Board, the Director shall refer this evidence to the Special Counsel for appropriate disposition.

(b) Whenever the Director issues specific instructions as to separation or other corrective action with regard to an employee, including cancellation of a personnel action, the head of the agency concerned shall comply with the Director's instructions.

(c) If the agency head fails to comply with the specific instructions of the Director as to separation or other corrective action with regard to an employee, including cancellation of a personnel action, the Director may certify to the Comptroller General of the United States the agency's failure to act together with such additional information as the Comptroller General may require, and shall furnish a copy of such certification to the head of the agency concerned. The individual with respect to whom such separation or other corrective action was instructed shall be entitled thereafter to no pay or only to such pay as appropriate to effectuate the Director's instructions.

$5.4. INFORMATION AND TESTIMONY When required by the Office, the Merit Systems Protection Board, or the Special Counsel of the Merit Systems Protection Board, or by authorized representatives of these bodies, agencies shall make available to them, or to their authorized representatives, employees to testify in regard to matters inquired of under the civil service laws, rules, and regulations, and records pertinent to these matters. All such employees, and all applicants or eligibles for positions covered by these rules, shall give to the Office, the Merit Systems Protection Board, the Special Counsel, or to their authorized representatives, all information, testimony, documents, and material in regard to the above matters, the disclosure of which is not otherwise prohibited by law or regulation. These employees, applicants, and eligibles shall sign testimony given under oath or affirmation before an officer authorized by law to administer oaths. Employees are performing official duty when testifying or providing evidence pursuant to this section.

(a) The head of an agency may fill excepted positions by the appointment of persons without civil service eligibility or competitive status and such persons shall not acquire competitive status by reason of such appointment: Provided, That the Office, in its discretion, may by regulation prescribe conditions under which excepted positions may be filled in the same manner as competitive positions are filled and conditions under which persons so appointed may acquire a competitive status in accordance with the Civil Service Rules and Regulations.

(b) To the extent permitted by law and the provisions of this Rule, appointments and position changes in the excepted service shall be made in accordance with such regulations and practices as the head of the agency concerned finds necessary.

integrini ent limo tination

$6.4. REMOVAL OF INCUMBENTS OF EXCEPTED POSITIONS

Except as may be required by statute, the Civil Service Rules and Regulations shall not apply to removals from positions listed in Schedules A and C or from positions excepted from the competitive service by statute. The Civil Service Rules and Regulations shall apply to removals from positions listed in Schedule B of persons who have competitive status.

$6.5. ASSIGNMENT OF EXCEPTED EMPLOYEES No person who is serving under an excepted appointment shall be assigned to the work of a position in the competitive service without prior approval of the Office.

$6.6. REVOCATION OF EXCEPTIONS The Office may remove any position from or may revoke in whole or in part any provision of Schedule A, B, or C. Notice of the Office's decision making these changes shall be published in the FEDERAL REGISTER. $6.7. MOVEMENT OF PERSONS BETWEEN THE CIVIL

SERVICE SYSTEM AND OTHER MERIT SYSTEMS Whenever the Office and any Federal agency having an established merit system determine it to be in the interest of good administration and consistent with the intent of the civil-service laws and any other applicable laws, they may enter into an agreement prescribing conditions under which persons may be moved from one system to the other and defining the status and tenure that the persons affected shall acquire upon such movement.

RULE VI-EXCEPTIONS FROM THE COMPETITIVE SERVICE $6.1. AUTHORITY TO EXCEPT POSITIONS FROM THE

COMPETITIVE SERVICE (a) The Office may except positions from the competitive service when it determines that appointments thereto through competitive examination are not practicable. These positions shall be listed in the Office's annual report for the fiscal year in which the exceptions are made.

(b) The Office shall decide whether the duties of any particular position are such that it may be filled as an excepted position under the appropriate schedule.

(C) Notice of the Office's decision granting authority to make appointments to an excepted position under the appropriate schedule shall be published in the FEDERAL REGISTER.

$ 6.2. SCHEDULES OF EXCEPTED POSITIONS The Office shall list positions that it excepts from the competitive service in Schedules A, B, and C, which schedules shall constitute parts of this Rule, as follows:

SCHEDULE A Positions other than those of a confidential or policydetermining character for which it is not practicable to examine shall be listed in Schedule A.

$6.8. SPECIFIED EXCEPTIONS (a) Positions in the Department of the Interior and in the Department of Commerce whose incumbents serve as the principal representative of the Secretary in their respective regions shall be listed in Schedule C for grades not exceeding grade GS-15 of the General Schedule, and shall be designated Noncareer Executive Assignments for positions graded higher than GS-15. Incumbents of these positions who are, on February 15, 1975, in the competitive service shall not be affected by the foregoing provisions of this Section.

(b) Positions in the Community Services Administration and ACTION [now Corporation for National and Community Service) whose incumbents serve as re

Page 17

bers of his immediate family, or other persons for (c) Served in the Foreign Service under an unlimited, whom similar protective services are provided by law career-type appointment and, immediately before his (which responsibility is hereinafter referred to as the separation from that appointment, he completed at protective function) may have his appointment con- least one year of continuous service under one or more verted to a career appointment if:

nontemporary appointments in the Foreign Service (1) he has completed at least three years of full-time

which may include the service that made him eligible continuous service in a position concerned with the for his career-type appointment; and protective function;

(d) Is appointed within 3 years after his separation (2) The Secretary of the Treasury, or his designee, from the Foreign Service, or he completed at least 3 recommends the conversion of the employee's appoint

years of substantially continuous service under one or ment within 90 days after the employee meets the serv

more nontemporary appointments in the Foreign Service requirements of this section, or within 90 days after

ice immediately before his separation from the unlimthe date of this Order, whichever is later;

ited, career-type appointment in that Service which (3) he shall have passed a competitive examination

may include the service that made him eligible for such appropriate for the position he is occupying or meets

appointment, or he is entitled to preference under secnoncompetitive examination standards the Office of

tion 2 of the Veterans' Preference Act of 1944, as Personnel Management prescribes for his position; and

amended [sections 1302 and 2108 of this title]. (4) he meets all other requirements prescribed by the SEC. 2. (a) Except as provided in paragraph (b) of this Office pursuant to Section of this Order.

section, a person appointed under Section 1 of this SEC. 2. For the purposes of Section 1

Order becomes a career conditional employee. (1) "full-time continuous service” means service

(b) A person appointed under Section 1 of this Order without a break of more than 30 calendar days;

becomes a career employee when he: (2) except as provided in paragraph (3) of this section,

(1) Has completed at least 3 years of substantially active service in the Armed Forces of the United States

continuous service under one or more nontemporary shall be deemed to be full-time continuous service in a

appointments in the Foreign Service immediately beposition concerned with the protective function if the

fore his separation from the unlimited, career-type apemployee concerned shall have left a position con

pointment in that Service which may include the servcerned with the protective function to enter the Armed

ice that made him eligible for such appointment; Forces and shall have been re-employed in a position

(2) Is appointed to a position in the competitive servconcerned with the protective function within 120 days

ice required by law or Executive order to be filled on a after he shall have been discharged from the Armed

permanent or career basis; or Forces under honorable conditions; and

(3) Has completed the service requirement for career (3) active service in the Armed Forces shall not be

tenure in the competitive service. deemed to be full-time continuous service in a position

concerned with the protective function if such active

For the purpose of subparagraph (3) of this paragraph, service exceeds a total of four years plus any period of

service in the Foreign Service is creditable in meeting additional service imposed pursuant to law.

the service requirement only if the person concerned is SEC. 3. Any employee who shall have left a position

appointed to a nontemporary position in the competiconcerned with the protective function to enter active

tive service under Section 1 of this Order within 30 days service in the Armed Forces of the United States, who after his separation from the Foreign Service. is re-employed in such a position within 120 days after

SEC. 3. A person appointed to a nontemporary posihis discharge under honorable conditions from such

tion in the competitive service under Section 1 of this service, and who meets the requirements of Section 1 as

Order acquires a competitive status automatically on the result of being credited with his period of active

appointment. service in the Armed Forces pursuant to Section 2(2),

SEC. 4. Any law, Executive order, or regulation that may have his appointment converted if the Secretary

would disqualify an applicant for appointment in the of the Treasury or his designee, recommends that con

competitive service shall also disqualify a person for version within 90 days after his re-employment.

appointment under Section 1 of this Order.

SEC. 5. For the purpose of this Order, a person is SEC. 4. Whenever the Secretary of the Treasury, his designee, decides not to recommend conversion of

deemed to be a member of the “Foreign Service" if he the appointment of an employee under this Order or was appointed in any agency under authority of the whenever the Secretary, or his designee, recommends

Foreign Service Act of 1946, as amended (former section conversion and the employee fails to qualify, the em

801 et seq. of Title 22, Foreign Relations and Interployee shall be separated by the date on which his cur

course], the Foreign Service Act of 1980 [section 3901 et rent Schedule B appointment expires.

seq. of Title 22), or legislation that supplements or reSEC. 5. The Office of Personnel Management shall pre

places the latter Act. scribe such regulations as may be necessary to carry Ex. ORD. NO. 11315. AMENDING THE CIVIL SERVICE RULES out the purposes of this Order.

TO AUTHORIZE AN EXECUTIVE ASSIGNMENT SYSTEM FOR Ex. ORD. No. 11219. APPOINTMENT IN COMPETITIVE

POSITIONS IN GRADES 16, 17, AND 18 OF THE GENERAL
SERVICE OF FOREIGN SERVICE OFFICERS AND EMPLOYEES

SCHEDULE Ex. Ord. No. 11219, May 6, 1965, 30 F.R. 6381, as amend-

Ex. Ord. No. 11315, Nov. 17, 1966, 31 F.R. 14729, as ed by Ex. Ord. No. 12107, Dec. 28, 1978, 44 F.R. 1055; Ex.

amended by Ex. Ord. No. 12107, Dec. 28, 1978, 44 F.R. Ord. No. 12292, Feb. 23, 1981, 46 F.R. 13967, provided:

1055, provided: By virtue of the authority vested in me by section

WHEREAS, the increasing complexities of Govern1753 of the Revised Statutes [sections 3301 and 7301 of

ment require personnel of the highest attainable qualithis title] and the Civil Service Act (22 Stat. 403), and

fications who are capable of assuming and discharging as President of the United States, it is hereby ordered

efficiently major and varied duties and responsibilities as follows:

in the Executive Branch in response to present and fuSECTION 1. Under regulations and conditions pre

ture needs; and scribed by the Office of Personnel Management, a

WHEREAS, this need for high quality can best be met present or former member of the Foreign Service may

by the establishment of an executive assignment sysbe appointed in the competitive service if he:

tem for the top three grades of the General Schedule, (a) Is qualified for the position in the competitive extending and adapting merit principles in recruitservice;

ment, selection, and development, combined with im(b) Was appointed in the Foreign Service under au- provements in the identification, assignment and utilithority of the Foreign Service Act of 1946 as amended zation of key personnel: (former section 801 et seq. of Title 22, Foreign Relations NOW, THEREFORE, by virtue of the authority vested and Intercourse), the Foreign Service Act of 1980 [sec

in me by the Constitution of the United States, by 5 tion 3901 et seq. of Title 22), or legislation that supple

U.S.C. 3301 and 3302, and as President of the United ments or replaces the latter Act;

States, it is ordered as follows:

Page 18

"SEC. 9.11. SPECIFIED NONCAREER EXECUTIVE

and as President of the United States of America, it is ASSIGNMENTS

hereby ordered as follows:

SECTION 1. The appointment of a Command Pilot, "The regional director, regional administrator, or the

Pilot or Mission Specialist candidate to a position in Secretary's principal regional representative positions

the Space Shuttle Astronaut Program of the National in the Department of Health, Education, and Welfare,

Aeronautics and Space Administration, which is listed Housing and Urban Development, Transportation and

under Schedule B of the Schedule of Excepted PosiLabor, and those positions in the Environmental Pro

tions, may be converted to career or career-conditional tection Agency shall be designated Noncareer Execu

appointment if: tive Assignments; and, the Limited Executive Assign

(a) the candidate has successfully completed two ments of any incumbents of these positions on Feb

years of service as a candidate in an appropriate trainruary 15, 1975, are converted to Noncareer Executive

ing program; Assignments. Incumbents of these positions serving in

(b) the Administrator of the National Aeronautics Career Executive Assignments on February 15, 1975,

and Space Administration, or the Administrator's desshall not be affected by the foregoing provisions of this

ignee, recommends the conversion of the candidate's Section."

appointment within ninety days of completion of the GERALD R. FORD.

requirements of section 1(a);

(c) the candidate meets noncompetitive examination Ex. ORD. No. 11856. AMENDING THE CI L SERVICE RULES

standards prescribed by the Office of Personnel ManTO EXCEPT CERTAIN POSITIONS IN REGIONAL OFFICES

agement; and FROM THE CAREER SERVICE

(d) the candidate meets all other requirements preEx. Ord. No. 11856, May 7, 1975, 40 F.R. 20259, provided: scribed by the Office of Personnel Management pursuBy virtue of the authority vested in me by the Con- ant to section 3 of this order. stitution of the United States of America and Sections SEC. 2. Whenever the Administrator of the National 3301 and 3302 of Title 5 of the United States Code, and Aeronautics and Space Administration, or the Adminisas President of the United States of America, Section trator's designee, decides not to recommend conversion 9.11 of Civil Service Rule IX is amended by adding “and of an appointment under this order or whenever the Adthe Small Business Administration” after "Environ- ministrator, or the Administrator's designee, recmental Protection Agency.”

ommends conversion and the candidate fails to qualify, GERALD R. FORD.

the candidate shall be separated not later than the date

of expiration of the current Schedule B appointment, Ex. ORD. No. 11887. AMENDING THE CIVIL SERVICE RULES unless the appointment can be converted through apTO EXCEPT CERTAIN POSITIONS FROM THE CAREER propriate competitive examination or the candidate SERVICE

can be assigned to a suitable position under another exEx. Ord. No. 11887, Nov. 4, 1975, 40 F.R. 51411, provided:

cepted authority prior to the expiration date.

SEC. 3. The Office of Personnel Management shall preBy virtue of the authority vested in me by the Con

scribe such regulations as may be necessary to carry stitution of the United States of America and Sections 3301 and 3302 of Title 5 of the United States Code, and

out the purpose of this order. as President of the United States of America, Section

EXECUTIVE ORDER NO. 12008 6.8 of Civil Service Rule VI is amended by adding “and

Ex. Ord. No. 12008, Aug. 25, 1977, 42 F.R. 43373, as in the Department of Commerce" after “Department of the Interior”.

amended by Ex. Ord. No. 12107, Dec. 28, 1978, 44 F.R.

1055, which established a Presidential Management InGERALD R. FORD.

tern Program, was revoked by Ex. Ord. No. 12364, May EX. ORD. No. 11935. AMENDING THE CIVIL SERVICE RULES

24, 1982, 47 F.R. 22931, set out below. CONCERNING CITIZENSHIP REQUIREMENTS FOR FEDERAL

Ex. ORD. NO. 12015. CAREER OR CAREER-CONDITIONAL APEMPLOYMENT

POINTMENTS IN COMPETITIVE SERVICE FOR STUDENTS Ex. Ord. No. 11935, Sept. 2, 1976, 41 F.R. 37301, as

COMPLETING APPROVED CAREER-RELATED WORK-STUDY amended by Ex. Ord. No. 12107, Dec. 28, 1978, 44 F.R.

PROGRAMS 1055, provided:

Ex. Ord. No. 12015, Oct. 26, 1977, 42 F.R. 56947, as By virtue of the authority vested in me by the Con- amended by Ex. Ord. No. 12107, Dec. 28, 1978, 44 F.R. stitution and statutes of the United States of America,

1055; Ex. Ord. No. 13024, Nov. 7, 1996, 61 F.R. 58125, proincluding Sections 3301 and 3302 of Title 5 of the United

vided: States Code, and as Presiden of th United States of

By virtue of the authority vested in me by Sections America, Civil Service Rule VII (5 CFR Part 7) is here

3301 and 3302 of Title 5 of the United States Code, and by amended by adding thereto the following new sec- as President of the United States of America, it is heretion:

by ordered as follows:

SECTION 1. As used in this order “career-related work“SECTION 7.4. CITIZENSHIP

study programs” are those programs established by the "(a) No person shall be admitted to competitive ex- Office of Personnel Management which provide for a amination unless such person is a citizen or national of formally-arranged schedule of periods of attendance at the United States.

an accredited school combined with periods of career"(b) No person shall be given any appointment in the related work in a Federal agency under a Schedule B competitive service unless such person is a citizen or appointment. national of the United States.

SEC. 2. The appointment of a student to a position in "(c) The Office may, as an exception to this rule and a career-related work-study program may be converted to the extent permitted by law, authorize the appoint- noncompetitively to a term, career, or career-condiment of aliens to positions in the competitive service tional appointment if the student: when necessary to promote the efficiency of the service (a) has completed within the preceding 120 days an in specific cases or for temporary appointments.”. educational program that meets the provisions estab

lished by the Office of Personnel Management; Ex. ORD. NO. 11955. CAREER OR CAREER-CONDITIONAL AP

(b) has satisfied all course requirements leading to POINTMENT TO CERTAIN QUALIFIED EMPLOYEES OF NA

completion of the related curriculum at an accredited TIONAL AERONAUTICS AND SPACE ADMINISTRATION

school; Ex. Ord. No. 11955, Jan. 10, 1977, 42 F.R. 2499, as (c) is recommended for such an appointment by the amended by Ex. Ord. No. 12107, Dec. 28, 1978, 44 F.R. employing agency in which the career-related work was 1055, provided:

performed; and, By virtue of the authority vested

section (d) satisfies such other requirements and conditions 3301 of title 5 of the United States Code (this section],

as the Office of Personnel Management may prescribe

Page 19

ing under

(6) The mine the transitiona

reterans of paragraf

$5.3. A would diso competitie

otherwise
this order.

$27.4. F (a) "ages in section

E Ord. No. 115 Mar. 26, 1970, 35 F.R. 5311, as amended by Ex. Ord. No. 12107, Dec. 28, 1978, 44 F.R. 1055, provided:

WHEREAS this Nation has an obligation to assist veterans of the armed forces in readjusting to civilian life;

WHEREAS the Federal Government, as an employer, should reflect its recognition of this obligation in its personnel policies and practices;

WHEREAS veterans, by virtue of their military service, have lost opportunities to pursue education and training oriented toward civilian careers;

WHEREAS the Federal Government is continuously concerned with building an effective workforce, and veterans constitute a major recruiting source; and

WHEREAS the development of skills is most effectively achieved through a program combining employment with education or training:

NOW, THEREFORE, by virtue of the authority vested in me by the Constitution of the United States, by sections 3301 and 3302 of title 5, United States Code, and as President of the United States, it is ordered as follows:

SECTION 1. (a) Subject to paragraph (b) of this section, the head of an agency may make an excepted appointment, to be known as a “veterans readjustment appointment”, to any position in the competitive service up to and including GS-5 or the equivalent thereof, of a veteran or disabled veteran as defined in section 2108(1), (2), of title 5, United States Code, who:

(1) served on active duty in the armed forces of the United States during the Vietnam era;

(2) at the time of his appointment has completed not more than fourteen years of education; and

(3) is found qualified to perform the duties of the position.

(b) Employment under paragraph (a) of this section is authorized only under a training or educational program developed by an agency in accordance with guidelines established by the Office of Personnel Management.

(c) An employee given a veterans readjustment appointment under paragraph (a) of this section shall serve subject to:

(1) the satisfactory performance of assigned duties; and

(2) participation in the training or educational program under which he is appointed.

(d) An employee who does not satisfactorily meet the conditions set forth in paragraph (c) of this section shall be removed in accordance with appropriate procedures.

(e) An employee serving under a veterans readjustment appointment may be promoted, reassigned, or transferred.

(f) An employee who completes the training or educational program and who has satisfactorily completed two years of substantially continuous service under a veterans readjustment appointment shall be converted to career-conditional or career employment. An employee converted under this paragraph shall automatically acquire a competitive status.

(8) In selecting an applicant for appointment under this section, an agency shall not discriminate because of race, color, religion, sex, national origin, or political affiliation.

SEC. 2. (a) A person eligible for appointment under section 1 of this order may be appointed only within one year after his separation from the armed forces, or one year following his release from hospitalization or treatment immediately following his separation from the armed forces, or one year after involuntary separation without cause from (1) a veterans readjustment ap

The reference to the competitive service is substituted for the reference to the Act creating that service. The reference to reasons for the exceptions is omitted as covered by section 1308 of this title. The words "provide for” are substituted for “provide and declare”. Paragraph (1) is supplied to preserve the President's power to except positions from the competitive service, previously implied from the power to except from the first rule in former section 633(2). Authority to make exceptions to so much of former section 633(2) as is restated in this section and section 1302(a) is omitted as meaningless. Authority to make exceptions to so much of former section 633(2) as is restated in section 3318(a) is omitted as superseded by former section 857, which is carried into section 3318(a). In the last sentence, the words “Each officer and individual employed in an agency” are substituted for “officers of the United States in the departments and offices” because of the restrictive definition of “officer" in section 2104.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

AMENDMENTS 1993—Par. (2). Pub. L. 103-94 substituted "and 7203" for “7203, 7321, and 7322",

1979–Par. (2). Pub. L. 96–54 amended par. (2) in same manner as amendment by section 703(C)(1) of Pub. L. 95-454. See 1978 Amendment note below.

1978–Par. (2). Pub. L. 95_454 substituted “7202, 7203" for "7152, 7153”.

Pub. L. 95–228 struck out reference to section 3306(a)(1) of this title. Amendments by section 703(C)(1) and (c)(2) of Pub. L. 95 454 appear to have been inadvertently reversed. Subsec. (c)(1) purported to amend subsec. (C)(1) of section 2105 of this title, and subsec. (c)(2) purported to amend par. (2) of this section. However, the amendments specified by Pub. L. 95 454, $703(C)(1) and (2), were impossible to execute literally. Thus, amendment by Pub. L. 95 454, $ 703(C)(2) was executed to section 2105 of this title, and amendment by section 703(c)(1) was executed to this section as the probable intent of Congress. EFFECTIVE DATE OF 1993 AMENDMENT; SAVINGS

PROVISION Amendment by Pub. L. 103–94 effective 120 days after Oct. 6, 1993, but not to release or extinguish any penalty, forfeiture, or liability incurred under amended provision, which is to be treated as remaining in force for purpose of sustaining any proper proceeding or action for enforcement of that penalty, forfeiture, or liability, and no provision of Pub. L. 103–94 to affect any proceedings with respect to which charges were filed on or before 120 days after Oct. 6, 1993, with orders to be issued in such proceedings and appeals taken therefrom as if Pub. L. 103–94 had not been enacted, see section 12 of Pub. L. 103–94, set out as an Effective Date; Savings Provision note under section 7321 of this title.

EFFECTIVE DATE OF 1979 AMENDMENT Amendment by Pub. L. 96–54 effective July 12, 1979, see section 2(b) of Pub. L. 96–54, set out as a note under section 305 of this title.

pointment or (ii) a transitional appointment, or one year after the effective date of this order if he is serving under a transitional appointment.

(b) The Office of Personnel Management may determine the circumstances under which service under a transitional appointment may be deemed service under a veterans readjustment appointment for the purpose of paragraph (f) of section 1 of this order.

SEC. 3. Any law, Executive order, or regulation which would disqualify an applicant for appointment in the competitive service shall also disqualify a person otherwise eligible for appointment under section 1 of this order. SEC. 4. For the purpose of this order:

(a) "agency” means a military department as defined in section 102 of title 5, United States Code, an executive agency (other than the General Accounting Office) as defined in section 105 of title 5, United States Code, and those portions of the legislative and judicial branches of the Federal Government and of the government of the District of Columbia having positions in the competitive service; and

(b) “Vietnam era" means the period beginning August 5, 1964, and ending on such date thereafter as may be determined by Presidential proclamation or concurrent resolution of the Congress.

SEC. 5. The Office of Personnel Management shall prescribe such regulations as may be necessary to carry out the provisions of this order.

SEC. 6. Executive Order No. 11397 of February 9, 1968, is revoked. Such revocation shall not affect the right of an employee to be converted to career-conditional or career employment if he meets the requirements of section 1(d) of Executive Order No. 11397 after the effective date of this order. SEC. 7. This order is effective 14 days after its date.

SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 3304, 3361 of this title; title 10 section 1784. $ 3303. Competitive service; recommendations of

Senators or Representatives An individual concerned in examining an applicant for or appointing him in the competitive service may not receive or consider a recommendation of the applicant by a Senator or Representative, except as to the character or residence of the applicant. (Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 418; Pub. L. 103-94, 88(a), Oct. 6, 1993, 107 Stat. 1006; Pub. L. 104–197, title III, § 315(a), Sept. 16, 1996, 110 Stat. 2416.)

for “Political recommendations in section catchline and amended text generally, substituting provisions prohibiting receipt or consideration of recommendations of applicants in competitive service made by Senators or Representatives for provisions which directed that personnel actions be taken without solicitation of or regard to such recommendations from Members of Congress, congressional employees, any elected official of the government of any State (including D.C. and Puerto Rico) or subdivision thereof, or political party official, prohibited such persons from making such recommendations, prohibited employees or applicants from soliciting such recommendations and required notification of such prohibition, but allowed for certain exceptions regarding solicitation and consideration of recommendations if subject of recommendation was limited to factors pertinent to work performance, ability, aptitude, general qualifications, related to suitability or security standards, or furnished pursuant to law or regulation.

1993—Pub. L. 103–94 substituted “Political recommendations” for “Competitive service; recommendations of Senators or Representatives” as section catchline and amended text generally. Prior to amendment, text read as follows: “An individual concerned in examining an applicant for or appointing him in the competitive service may not receive or consider a recommendation of the applicant by a Senator or Representative, except as to the character or residence of the applicant."

EFFECTIVE DATE OF 1996 AMENDMENT Amendment by Pub. L. 104–197 effective 30 days after Sept. 16, 1996, see section 315(c) of Pub. L. 104–197, set out as a note under section 2302 of this title. EFFECTIVE DATE OF 1993 AMENDMENT; SAVINGS

PROVISION Amendment by Pub. L. 103-94 effective 120 days after Oct. 6, 1993, but not to release or extinguish any penalty, forfeiture, or liability incurred under amended provision, which is to be treated as remaining in force for purpose of sustaining any proper proceeding or action for enforcement of that penalty, forfeiture, or liability, and no provision of Pub. L. 103–94 to affect any proceedings with respect to which charges were filed on or before 120 days after Oct. 6, 1993, with orders to be issued in such proceedings and appeals taken therefrom as if Pub. L. 103–94 had not been enacted, see section 12 of Pub. L. 103–94, set out as an Effective Date; Savings Provision note under section 7321 of this title.

SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in title 38 section 7403.

The prohibition is restated in positive form. The words “An individual concerned in examining an applicant for or appointing him in the competitive service” are substituted for "any person concerned in making any examination or appointment under this act". The word “applicant” is substituted for "person who shall apply for office or place under the provisions of this act". The word “Representative” is substituted for “Member of the House of Representatives”.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

AMENDMENTS 1996—Pub. L. 104-197 substituted “Competitive service; recommendations of Senators or Representatives”

$ 3304. Competitive service; examinations

(a) The President may prescribe rules which shall provide, as nearly as conditions of good administration warrant, for

(1) open, competitive examinations for testing applicants for appointment in the competitive service which are practical in character and as far as possible relate to matters that fairly test the relative capacity and fitness of the applicants for the appointment sought; and

(2) noncompetitive examinations when competent applicants do not compete after notice has been given of the existence of the vacancy.

(b) An individual may be appointed in the competitive service only if he has passed an examination or is specifically excepted from examination under section 3302 of this title. This subsection does not take from the President any authority conferred by section 3301 of this title that is consistent with the provisions of this title governing the competitive service.

mad as fo shall estat muerence Subsec. 1996–Su 26-Su

shortly before completing 3 years of active service, having been honorably released from such duty. (Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 418; Pub. L. 95 454, title IX, $906(a)(5), Oct. 13, 1978, 92 Stat. 1225; Pub. L. 99–586, Oct. 29, 1986, 100 Stat. 3325; Pub. L. 104-65, $$ 16(a), (b), 17(a), Dec. 19, 1995, 109 Stat. 703; Pub. L. 104–186, title II, $ 215(2), Aug. 20, 1996, 110 Stat. 1745; Pub. L. 105–339, 82, Oct. 31, 1998, 112 Stat. 3182; Pub. L. 106-117, title V, $ 511(c), Nov. 30, 1999, 113 Stat. 1575.)

1955-S1 mated sub (c) which movision maribe competiti

"I) sc a positi the Sec

House

“2) or both upnires petitive prejudice a suitab?

to the co

tion from

Jan. 16, 1883, ch. 27, 82(2)1,

22 Stat. 403. Jan. 16, 1883, ch. 27, 82(2)7

(less last 17 words), 22

Stat. 404. Jan. 16, 1883, ch. 27, $7 (as

applicable to appoint

ment), 22 Stat. 406. Nov. 26, 1940, ch. 919, 82(b),

54 Stat. 1212. Feb. 12, 1946, ch. 3, 60 Stat.

3. May 29, 1958, Pub. L. 85-432,

$5, 72 Stat. 151. June 24, 1952, ch. 456, 66

Stat. 155. Jan. 16, 1883, ch. 27, $3 (7th

sentence), 22 Stat. 404.

purpose

red tive bra section

enter the

ution d Sabse

(c)(1) For the purpose of this subsection, the term “technician" has the meaning given such term by section 8337(h)(1) of this title.

(2) Notwithstanding a contrary provision of this title or of the rules and regulations prescribed under this title for the administration of the competitive service, an individual who served for at least 3 years as a technician acquires a competitive status for transfer to the competitive service if such individual,

(A) is involuntarily separated from service as a technician other than by removal for

on charges of misconduct or delinquency;

(B) passes a suitable noncompetitive examination; and

(C) transfers to the competitive service within 1 year after separating from service as a technician.

(d) The Office of Personnel Management shall promulgate regulations on the manner and extent that experience of an individual in a position other than the competitive service, such as the excepted service (as defined under section 2103) in the legislative or judicial branch, or in any private or nonprofit enterprise, may be considered in making appointments to a position in the competitive service (as defined under section 2102). In promulgating such regulations OPM shall not grant any preference based on the fact of service in the legislative or judicial branch. The regulations shall be consistent with the principles of equitable competition and merit based appointments.

(e) Employees at any place outside the District of Columbia where the President or the Office of Personnel Management directs that examinations be held shall allow the reasonable use of public buildings for, and in all proper ways facilitate, holding the examinations.

(1)(1) Preference eligibles or veterans who have been separated from the armed forces under honorable conditions after 3 years or more of active service may not be denied the opportunity to compete for vacant positions for which the agency making the announcement will accept applications from individuals outside its own workforce under merit promotion procedures.

(2) If selected, a preference eligible or veteran described in paragraph (1) shall receive a career or career-conditional appointment, as appropriate.

(3) This subsection shall not be construed to confer an entitlement to veterans' preference that is not otherwise required by law.

(4) The area of consideration for all merit promotion announcements which include consideration of individuals of the Federal workforce shall indicate that preference eligibles and veterans who have been separated from the armed forces under honorable conditions after 3 years or more of active service are eligible to apply. The announcements shall be publicized in accordance with section 3327.

(5) The Office of Personnel Management shall prescribe regulations necessary for the administration of this subsection. The regulations shall ensure that an individual who has completed an initial tour of active duty is not excluded from the application of this subsection because of having been released from such tour of duty

In subsection (a), the authority of the President to prescribe rules is added on authority of former section 633(1), which is carried into section 3302. The words "competitive service” are substituted for “public service” since the requirements do not apply to the excepted or uniformed service.

In subsection (b), the words “That after the expiration of six months from the passage of this act” are omitted as executed. The words "in the competitive service” are substituted for "in either of the said classes now existing, or that may be arranged hereunder pursuant to said rules" because of the definition of "competitive service" in section 2102. In the second sentence, the words "the provisions of this title governing the competitive service" are substituted for "this act".

In subsection (c), the provisions of former section 631b(b) and (c) are combined and restated for clarity. The words “From and after the effective date of this Act” and “From and after the date of approval of this Act" are omitted as executed. The words "competitive service” are substituted for "classified civil service" in view of the definition of “competitive service" in section 2102. The words "or as a clerical employee of the Senate or House of Representatives” are omitted as included in the reference to "an individual ... in the legislative branch in a position in which he was paid by the Secretary of the Senate or the Clerk of the House of Representatives". The words “and nothing in this Act shall be construed to impair any right of retransfer provided for under civil service laws or regulations made thereunder" are omitted as unnecessary.

In subsection (d), the word "Employees” is substituted for “collector, postmaster, and other officers of the United States".

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

AMENDMENTS 1999–Subsec. (f)(2), (3), Pub. L. 106-117, 8511(c)(2), (3), added par. (2) and redesignated former par. (2) as (3). Former par. (3) redesignated (4).

Subsec. (f)(4). Pub. L. 106-117, $511(c)(1), (2), redesignated par. (3) as (4) and struck out former par. (4) which

read as follows: "The Office of Personnel Management shall establish an appointing authority to appoint such preference eligibles and veterans.”

Subsec. (f)(5). Pub. L. 106–117, $511(c)(4), added par. (5). 1998—Subsec. (f). Pub. L. 105–339 added subsec. (f).

1996–Subsec. (c)(1). Pub. L. 104–186 substituted “Chief Administrative Officer” for “Clerk".

1995–Subsec. (c). Pub. L. 104-65, § 16(a), (b), redesignated subsec. (d) as (c) and struck out former subsec. (c) which read as follows: “Notwithstanding a contrary provision of this title or of the rules and regulations prescribed under this title for the administration of the competitive service, an individual who served

"(1) for at least 3 years in the legislative branch in a position in which he was paid by the Secretary of the Senate or the Chief Administrative Officer of the House of Representatives; or

"(2) for at least 4 years as a secretary or law clerk, or both, to a justice or judge of the United States; acquires a competitive status for transfer to the competitive service if he is involuntarily separated without prejudice from the legislative or judicial branch, passes a suitable noncompetitive examination, and transfers to the competitive service within 1 year of the separation from the legislative or judicial branch. For the purpose of this subsection, an individual who has served for at least 2 years in a position in the legislative branch described by paragraph (1) of this subsection and who is separated from that position to enter the armed forces is deemed to have held that position during his service in the armed forces."

Subsec. (d). Pub. L. 104-65, $17(a), which directed amendment of this section by adding subsec. (d) at the end thereof, was executed by adding subsec. (d) after subsec. (c) to reflect the probable intent of Congress. Pub. L. 104-65, $16(b), redesignated subsec. (d) as (c).

1986-Subsecs. (d), (e). Pub. L. 99-586 added subsec. (d) and redesignated former subsec. (d) as (e).

1978–Subsec. (d). Pub. L. 95 454 substituted "the Office of Personnel Management” for “a Civil Service Commission board of examiners”.

EFFECTIVE DATE OF 1999 AMENDMENT Pub. L. 106–117, title V, $511(d)(2), Nov. 30, 1999, 113 Stat. 1576, provided that: “If pursuant to subsection (a) (113 Stat. 1575] the amendments specified in subsection (c) [amending this section] are made, those amendments shall take effect as of October 31, 1998, as if included in subsection (1) of section 3304 of title 5, United States Code, as enacted by section 2 of the Veterans Employment Opportunities Act of 1998 (Public Law 105–339; 112 Stat. 3182).”

EFFECTIVE DATE OF 1995 AMENDMENT Section 16(c) of Pub. L. 104-65 provided that: “The repeal and amendment made by this section (amending this section) shall take effect 2 years after the date of the enactment of this Act (Dec. 19, 1995]."

Section 17(b) of Pub. L. 104-65 provided that: “The amendment made by this section (amending this section) shall take effect 2 years after the date of the enactment of this Act (Dec. 19, 1995), except the Office of Personnel Management shall

"(1) conduct a study on excepted service considerations for competitive service appointments relating to such amendment; and

“(2) take all necessary actions for the regulations described under such amendment to take effect as final regulations on the effective date of this section."

$3304a. Competitive service; career appointment

after 3 years' temporary service (a) An individual serving in a position in the competitive service under an indefinite appointment or a temporary appointment pending establishment of a register (other than an individual serving under an overseas limited appointment, or in a position classified above GS-15 pursuant to section 5108) acquires competitive status and is entitled to have his appointment converted to a career appointment, without condition, when,

(1) he completes, without break in service of more than 30 days, a total of at least 3 years of service in such a position;

(2) he passes a suitable noncompetitive examination;

(3) the appointing authority (A) recommends to the Office of Personnel Management that the appointment of the individual be converted to a career appointment and (B) certifies to the Office that the work performance of the individual for the past 12 months has been satisfactory; and

(4) he meets Office qualification requirements for the position and is otherwise eligible for career appointment.

(b) The employing agency shall terminate the appointment of an individual serving in a position in the competitive service under an indefinite or temporary appointment described in subsection (a) of this section, not later than 90 days after he has completed the 3-year period referred to in subsection (a)(1) of this section, if, prior to the close of such 90-day period, such individual has not met the requirements and conditions of subparagraphs (2) to (4), inclusive, of subsection (a) of this section.

(c) In computing years of service under subsection (a)(1) of this section for an individual who leaves a position in the competitive service to enter the armed forces and is reemployed in such a position within 120 days after separation under honorable conditions, the period from the date he leaves his position to the date he is reemployed is included.

(a) The Office of Personnel Management may prescribe regulations necessary for the administration of this section. (Added Pub. L. 90-105, $1(a), Oct. 11, 1967, 81 Stat. 273; amended Pub. L. 91–375, 86(0)(6), Aug. 12, 1970, 84 Stat. 776; Pub. L. 95–454, title IX, $906(a)(2), (3), Oct. 13, 1978, 92 Stat. 1224; Pub. L. 101-509, title V, $ 529 [title I, § 101(b)(9)(B)], Nov. 5, 1990, 104 Stat. 1427, 1441.)

AMENDMENTS 1990 Subsec. (a). Pub. L. 101-509, which directed the substitution of “in a position classified above GS-15 pursuant to section 5108)” for "in GS-16, 17, or 18)”, was executed by making the substitution for "in GS-16, GS-17, or GS-18)”, as the probable intent of Congress.

1978-Subsec. (a). Pub. L. 95-454, $ 906(a)(2), (3), substituted “Office of Personnel Management” and “Office” for “Civil Service Commission” and “Commission”, respectively, wherever appearing.

Subsec. (d). Pub. L. 95 454, $ 906(a)(2), substituted “Office of Personnel Management” for “Civil Service Commission”,

1970—Subsec. (a). Pub. L. 91–375 struck out “, in the postal field service,” after “limited appointment" in introductory parenthetical text.

EFFECTIVE DATE OF 1978 AMENDMENT Amendment by Pub. L. 95–454 effective 90 days after Oct. 13, 1978, see section 907 of Pub. L. 95-454, set out as a note under section 1101 of this title.

SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 3302 of this title; title 22 section 3008; title 40 section 42.

AMENDMENTS 1979—Subsec. (a). Pub. L. 96–54, $2(a)(14), substituted "Office of Personnel Management” for “Civil Service Commission”.

Subsec. (b). Pub. L. 96-54, 82(a)(15), substituted "Office” for “Commission".

The proh "officers"

Tem of the

Standard

EFFECTIVE DATE OF 1970 AMENDMENT Amendment by Pub. L. 91–375 effective within 1 year after Aug. 12, 1970, on date established therefor by Board of Governors of United States Postal Service and published by it in Federal Register, see section 15(a) of Pub. L. 91–375, set out as an Effective Date note preceding section 101 of Title 39, Postal Service.

EFFECTIVE DATE Section 4 of Pub. L. 90–105 provided that:

“(a) This section and section 3 of this Act (amending provisions set out as a note under section 3101 of this title] shall become effective on the date of enactment of this Act (Oct. 11, 1967).

“(b) Subject to subsection (c) of this section, the first section and section 2 of this Act [enacting this section and section 3303 of former Title 39, The Postal Service) shall become effective on the one hundred and twentieth day following the date of enactment of this Act (Oct. 11, 1967).

"(c) For the purpose of the application of section 3304a(b) of title 5, United States Code, as enacted by this Act, in the case of an individual who, prior to the effective date prescribed by subsection (b) of this section, shall have completed the 3-year period referred to in such section 3304a(b), such individual shall be deemed to have completed such 3-year period on such effective date.”

1988–S1 stituted"

Sotsec. 0.

198-50 stituted kent as

[$ 3306. Repealed. Pub. L. 95–228, § 1, Feb. 10,

1978, 92 Stat. 25]

Section, Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 419, related to apportionment of appointments in the departmental service in the District of Columbia among the States, territories, etc.

Satsec c. (e). 1990-31 retary" i

its

$ 3305. Competitive service; examinations; when

held (a) The Office of Personnel Management shall hold examinations for the competitive service at least twice a year in each State and territory or possession of the United States where there are individuals to be examined.

(b) The Office shall hold an examination for a position to which an appointment has been made within the preceding 3 years, on the application of an individual who qualifies as a preference eligible under section 2108(3)(C)-(G) of this title. The examination shall be held during the quarter following the application. (Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 418; Pub. L. 90–83, $1(8), Sept. 11, 1967, 81 Stat. 197; Pub. L. 96-54, § 2(a)(14), (15), Aug. 14, 1979, 93 Stat. 382.)

$ 3307. Competitive service; maximum-age en

trance requirements; exceptions (a) Except as provided in subsections (b), (c), (d), (e), and (f) of this section appropriated funds may not be used to pay an employee who establishes a maximum-age requirement for entrance into the competitive service.

(b) The Secretary may, with the concurrence of such agent as the President may designate, determine and fix the maximum limit of age within which an original appointment to a position as an air traffic controller may be made.

(c) The Secretary of the Interior may determine and fix the minimum and maximum limits of age within which original appointments to the United States Park Police may be made.

(d) The head of any agency may determine and fix the minimum and maximum limits of age within which an original appointment may be made to a position as a law enforcement officer or firefighter, as defined by section 8331(20) and (21), respectively, of this title.

(e) The head of an agency may determine and fix the maximum age limit for an original appointment to a position as a firefighter or law enforcement officer,

defined by section 8401(14) or (17), respectively, of this title.

(f) The Secretary of Energy may determine and fix the maximum age limit for an original appointment to a position as a nuclear materials courier, as defined by section 8331(27) or 8401(33). (Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 419; Pub. L. 92–297, $2(a), May 16, 1972, 86 Stat. 141; Pub. L. 93–350, $1, July 12, 1974, 88 Stat. 355; Pub. L. 96–347, $1(b), Sept. 12, 1980, 94 Stat. 1150; Pub. L. 100–238, title I, $103(a)(1), Jan. 8, 1988, 101 Stat. 1744; Pub. L. 105–261, div. C, title XXXI, 53154(a), Oct. 17, 1998, 112 Stat. 2254.)

HISTORICAL AND REVISION NOTES

1966 ACT

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Page 20

Ex. ORD. NO. 11817. OFFICE OF PERSONNEL MANAGEMENT

DESIGNATED AGENT TO CONCUR WITH AGENCY DETERMINATION FIXING AGE LIMITS FOR MAKING ORIGINAL APPOINTMENTS RESPECTING LAW ENFORCEMENT OFFICER AND FIREFIGHTER POSITIONS

Ex. Ord. No. 11817, Nov. 5, 1974, 39 F.R. 39427, as amended by Ex. Ord. No. 12107, Dec. 28, 1978, 44 F.R. 1055, provided:

By virtue of the authority vested in me by section 3307(d) of title 5 of the United States Code, as added by the first section of the Act of July 12, 1974 (Public Law 93–350; 88 Stat. 355), I hereby designate the Office of Personnel Management as the agency to concur with determinations made by agencies to fix the minimum and maximum limits of age within which an original appointment may be made to a position as a law enforcement officer or firefighter, as defined by section 8331(20) and (21), respectively, of title 5 of the United States Code. The designation made by this order shall be effective as of October 15, 1974.

1998—Subsec. (a). Pub. L. 105–261, $3154(a)(1), substituted "(d), (e), and (f)” for “and (d)”.

Subsec. (f). Pub. L. 105–261, 83154(a)(2), added subsec. (f).

1988–Subsec. (d). Pub. L. 100–238, § 103(a)(1)(A), substituted "may' for “may, with the concurrence of such agent as the President may designate,”.

Subsec. (e). Pub. L. 100–238, § 103(a)(1)(B), added subsec. (e).

1980—Subsec. (b). Pub. L. 96-347 substituted “Secretary'' for “Secretary of Transportation”.

1974-Subsec. (a). Pub. L. 93–350, $1(1), inserted reference to subsec. (d).

Subsec. (d), Pub. L. 93–350, $1(2), added subsec. (d).

1972--Pub. L. 92-297 designated existing provisions as subsec. (a) and added subsecs. (b) and (c).

EFFECTIVE DATE OF 1988 AMENDMENT Section 103(f) of Pub. L. 100–238 provided that: “This section, and the amendments made by this section. [amending this section and sections 8401 and 8704 of this title and enacting provisions set out as a note under section 8334 of this title), shall be effective as of January 1, 1987."

§ 3308. Competitive service; examinations; edu

cational requirements prohibited; exceptions The Office of Personnel Management or other examining agency may not prescribe a minimum educational requirement for an examination for the competitive service except when the Office decides that the duties of a scientific, technical, or professional position cannot be perf med by an individual who does not have a prescribed minimum education. The Office shall make the reasons for its decision under this section a part of its public records. (Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 419; Pub. L. 95-454, title IX, $906(a)(2), (3), Oct. 13, 1978, 92 Stat. 1224.)

HISTORICAL AND REVISION NOTES

EFFECTIVE DATE OF 1980 AMENDMENT Amendment by Pub. L. 96-347 effective on 90th day after Sept. 12, 1980, see section 3 of Pub. L. 96–347, set out as a note under section 2109 of this title.

EFFECTIVE DATE OF 1974 AMENDMENT Section 7 of Pub. L. 93–350 provided that: “The amendments made by the first section (amending this section), and sections 2(b), 5, and 6 (amending sections 8331, 8336, and 8339 of this title), of this Act shall become effective on the date of enactment of this Act (July 12, 1974). The amendments made by sections 2(a) and 3 (amending sections 8331 and 8334 of this title] of this Act shall become effective at the beginning of the first applicable pay period which begins after December 31, 1974. The amendment made by section 4 of this Act [amending section 8335 of this title] shall become effective on January 1, 1978."

EFFECTIVE DATE OF 1972 AMENDMENT Amendment by Pub. L. 92–297 effective on 90th day after May 16, 1972, see section 10 of Pub. L. 92-297, set out as an Effective Date note under section 3381 of this title.

The prohibition is restated in positive form. The words "The Civil Service Commission or other examining agency” are added because these are the only agencies to which the prohibition could apply.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

AMENDMENTS 1978—Pub. L. 95 454 substituted “Office of Personnel Management” and “Office” for “Civil Service Commission” and “Commission”, respectively, wherever appearing.

EFFECTIVE DATE OF 1978 AMENDMENT Amendment by Pub. L. 95 454 effective 90 days after Oct. 13, 1978, see section 907 of Pub. L. 95-454, set out as a note under section 1101 of this title.

SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 3320 of this title; title 22 section 1438.

UNITED STATES PARK POLICE; AGE LIMITS FOR

ORIGINAL APPOINTMENTS Pub. L. 91–73, Sept. 26, 1969, 83 Stat. 116, which provided for age limits for appointments to the United States Park Police, was repealed by Pub. L. 92–297, $ 11, May 16, 1972, 86 Stat. 145, effective at the end of the 89th day after May 16, 1972. The Secretary of the Interior may fix age limits for appointment under subsec. (C) of

(2) a preference eligible under section 2108(3)(A)-(B) of this title—5 points. (Pub, L. 89-554, Sept. 6, 1966, 80 Stat. 419; Pub. L. 90–83, $1(8), Sept. 11, 1967, 81 Stat. 197; Pub. L. 105–85, div. A, title XI, 81102(b), Nov. 18, 1997, 111 Stat. 1922.)

respond, cation, t demonstr

the notif

HISTORICAL AND REVISION NOTES

$ 3311. Preference eligibles; examinations; credit

ing experience In examinations for the competitive service in which experience is an element of qualification, a preference eligible is entitled to credit,

(1) for service in the armed forces when his employment in a similar vocation to that for which examined was interrupted by the service; and

(2) for all experience material to the position for which examined, including experience gained in religious, civic, welfare, service, and organizational activities, regardless of wheth

er he received pay therefor. (Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 420.)

5 U.S.C. 852 (1st sen

tence).

June 27, 1944, ch. 287, 93

(less proviso), 58 Stat. 388. Jan. 19, 1948, ch. 1, 82, 62

Stat. 3. Dec. 27, 1950, ch. 1151, $2(a),

64 Stat. 1117. July 14, 1952, ch. 728, 82, 66

Stat. 627. Aug. 14, 1953, ch. 485, $1(a)

"Sec. 3 (1st sentence)”, 67 Stat. 581.

position, physical form the count ar up suc pleted it on the b its findi: geferen shell Co.

HISTORICAL AND REVISION NOTES

The word "competitive" is added before "service" for clarity. Application of this section to the excepted service in the executive branch and to the government of the District of Columbia, as provided in former section 858, is carried into section 3320.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

AMENDMENTS 1997-Par. (2). Pub. L. 105–85 substituted "section 2108(3)(A)-(B)” for "section 2108(3)(A)".

1967–C1. (1). Pub. L. 90–83 substituted "section 2108(3)(C)-(G)” for “section 2108(3)(B)-(F)." See Historical and Revision Notes under section 3305 of this title.

The words “for the competitive service” are added after "examinations” for clarity. Application of this section to the excepted service in the executive branch and to the government of the District of Columbia, as provided in former section 858, is carried into section 3320.

In paragraph (1), the words "service in the armed forces” are substituted for "in the military or naval service of the United States” on authority of the Act of July 26, 1947, ch. 343, 8305(a), 61 Stat. 508. The word "actual” is omitted as surplusage.

In paragraph (2), the words "material to the position for which examined” are substituted for "valuable" for clarity.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 2302, 3320 of this title; title 2 section 1316a; title 3 section 115; title 22 section 1438.

SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 2302, 3313, 3320 of this title; title 2 section 1316a; title 3 section 115; title 22 section 1438.

$ 3310. Preference eligibles; examinations;

guards, or operators, messengers, and

custodians In examinations for positions of guards, elevator operators, messengers, and custodians in the competitive service, competition is restricted to preference eligibles as long as preference eligibles are available. (Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 420.)

$ 3312. Preference eligibles; physical qualifica

tions; waiver (a) In determining qualifications of a preference eligible for examination for, appointment in, or reinstatement in the competitive service, the Office of Personnel Management or other examining agency shall waive

(1) requirements as to age, height, and weight, unless the requirement is essential to the performance of the duties of the position; and

(2) physical requirements if, in the opinion of the Office or other examining agency, after considering the recommendation of an accredited physician, the preference eligible is physically able to perform efficiently the duties of the position.

(b) If an examining agency determines that, on the basis of evidence before it, a preference eligible under section 2108(3)(C) of this title who has a compensable service-connected disability of 30 percent or more is not able to fulfill the physical requirements of the position, the examining agency shall notify the Office of the determination and, at the same time, the examining agency shall notify the preference eligible of the

The words "in the competitive service" are added for clarity. The reference to “examinations held prior to December 31, 1954, for positions of apprentices” is omitted as obsolete. Application of this section to the excepted service in the executive branch and to the government of the District of Columbia, as provided in former section 858, is carried into section 3320.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 2302, 3320 of this title; title 2 section 1316a; title 3 section 115; title 22 section 1438.

(B) remaining applicants, in the order of their ratings, including points added under

section 3309 of this title. The names of preference eligibles shall be entered ahead of others having the same rating. (Pub. L. 89-554, Sept. 6, 1966, 80 Stat. 420.)

HISTORICAL AND REVISION NOTES

reasons for the determination and of the right to respond, within 15 days of the date of the notification, to the Office. The Office shall require a demonstration by the appointing authority that the notification was timely sent to the preference eligible's last known address and shall, before the selection of any other person for the position, make a final determination on the physical ability of the preference eligible to perform the duties of the position, taking into account any additional information provided in any such response. When the Office has completed its review of the proposed disqualification on the basis of physical disability, it shall send its findings to the appointing authority and the preference eligible. The appointing authority shall comply with the findings of the Office. The functions of the Office under this subsection may not be delegated. (Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 420; Pub. L. 95-454, title II, § 307(c), title IX, $906(a)(2), (3), Oct. 13, 1978, 92 Stat. 1148, 1224.)

June 27, 1944, 287, $7, 58

Stat. 389. Aug. 14, 1953, ch. 485, $1(b),

67 Stat. 581.

HISTORICAL AND REVISION NOTES

The section is restated for clarity and conciseness. The words “for the competitive service” are added for clarity. Application of this section to the excepted service in the executive branch and to the government of the District of Columbia is carried into section 3320. The words "employment lists” are omitted as included in “appropriate registers or lists of eligibles”.

In paragraph (1), the words “in GS-9 or higher” are substituted for “in grade 9 or higher of the General Schedule of the Classification Act of 1949, as amended” in view of the codification of the Act in this title, and, in specific sections 5104 and 5332.

In paragraph (2)(A), the term "disabled veterans” is substituted for "preference eligibles” in view of the definition of "disabled veteran" in section 2108(2).

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 2302, 3314, 3315, 3320 of this title; title 22 section 1438.

tion de atire tout Colundu into

$3314. Registers; preference eligibles who re

signed A preference eligible who resigns, on request to the Office of Personnel Management, is entitled to have his name placed again on all registers for which he may have been qualified, in the order named by section 3313 of this title, (Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 420; Pub. L. 95-454, title IX, $ 906(a)(2), Oct. 13, 1978, 92 Stat. 1224.)

HISTORICAL AND REVISION NOTES

The section is restated for clarity and conciseness. The words "for which examination is given” and “for which the examination is given” are omitted as surplusage. The application of this section to the excepted service in the executive branch and the government of the District of Columbia is preserved by section 3320.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

AMENDMENTS 1978- Pub. L. 95–454 designated existing provisions as subsec. (a), substituted “Office of Personnel Management” and “Office” for “Civil Service Commission” and "Commission”, respectively, and added subsec. (b).

EFFECTIVE DATE OF 1978 AMENDMENT Amendment by Pub. L. 95–454 effective 90 days after Oct. 13, 1978, see section 907 of Pub. L. 95–454, set out as a note under section 1101 of this title.

SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 2302, 3320 of this title; title 2 section 1316a; title 3 section 115; title 22 section 1438. $ 3313. Competitive service; registers of eligibles

The names of applicants who have qualified in examinations for the competitive service shall be entered on appropriate registers or lists of eligibles in the following order

(1) for scientific and professional positions in GS-9 or higher, in the order of their ratings, including points added under section 3309 of this title; and (2) for all other positions

(A) disabled veterans who have a compensable service-connected disability of 10 percent or more, in order of their ratings, including points added under section 3309 of this title; and

The last 28 words of former section 865 relating to recertification and reappointments are omitted since under sections 3317 and 3318(a) certification and appointment follow from placing on registers.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

AMENDMENTS 1978—Pub. L. 95–454 substituted “Office of Personnel Management” for “Civil Service Commission”.

EFFECTIVE DATE OF 1978 AMENDMENT Amendment by Pub, L. 95–454 effective 90 days after Oct. 13, 1978, see section 907 of Pub. L. 95–454, set out as a note under section 1101 of this title.

SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 2302, 3320 of this title; title 22 section 1438.

(Pub. L. 89-554, Sept. 6, 1966, 80 Stat. 421.)

$3315. Registers; preference eligibles furloughed

or separated (a) A preference eligible who has been separated or furloughed without delinquency or misconduct, on request, is entitled to have his name placed on appropriate registers and employment lists for every position for which his qualifications have been established, in the order named by section 3313 of this title. This subsection applies to registers and employment lists maintained by the Office of Personnel Management, an Executive agency, or the government of the District of Columbia.

(b) The Office may declare a preference eligible who has been separated or furloughed without pay under section 7512 of this title to be entitled to the benefits of subsection (a) of this section. (Pub. L. 89-554, Sept. 6, 1966, 80 Stat. 420; Pub. L. 96–54, $2(a)(14), (15), Aug. 14, 1979, 93 Stat. 382.)

Amendin At. 13, 197 note und

The word "authority” is substituted for "officer” in recognition of the several appointing authorities named in section 2105(a)(1).

The words "in the competitive service, an Executive agency, or the government of the District of Columbia" are substituted for "in the civil service, Federal, or District of Columbia, or in any establishment, agency, bureau, administration, project, or department, temporary or permanent" on authority of former section 869.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 2302, 3320 of this title; title 22 section 1438.

irom the pointme section WE OT I 10, and

In subsection (a), the term "Executive agency' is substituted for "any agency or project of the Federal Government' on authority of former section 869. The last 28 words of the 1st sentence of former section 864 relating to recertification and reappointment are omitted since under sections 3317 and 3318(a) certification and appointment follow from placing on registers.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

§ 3317. Competitive service; certification from

registers (a) The Office of Personnel Management shall certify enough names from the top of the appropriate register to permit a nominating or appointing authority who has requested a certificate of eligibles to consider at least three names for appointment to each vacancy in the competitive service.

(b) When an appointing authority, for reasons considered sufficient by the Office, has three times considered and passed over a preference eligible who was certified from a register, certification of the preference eligible for appointment may be discontinued. However, the preference eligible is entitled to advance notice of discontinuance of certification. (Pub. L. 89-554, Sept. 6, 1966, 80 Stat. 421; Pub. L. 95 454, title IX, 8 906(a)(3), Oct. 13, 1978, 92 Stat. 1224; Pub. L. 96–54, $2(a)(14), (15), Aug. 14, 1979, 93 Stat, 382.)

1979–Subsec. (a). Pub. L. 96–54, $2(a)(14), substituted "Office of Personnel Management” for “Civil Service Commission”.

Subsec. (b). Pub. L. 96–54, 82(a)(15), substituted “Office" for "Commission".

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 2302, 3320 of this title; title 22 section 1438.

[$ 3315a. Repealed. Pub. L. 93 416, § 22(c), Sept. 7,

1974, 88 Stat. 1150]

Section, added Pub. L. 90–83 $1(9)(A), Sept. 11, 1967, 81 Stat. 197, related to registration by Civil Service Commission of employees receiving compensation for injuries for certification for appointment to vacant positions.

In subsection (a), the word "authority” is substituted for “officer” in recognition of the several appointing authorities named in section 2105(a)(1). The words "in the competitive service” have been added for clarity. Application of the section to the excepted service in the executive branch and to the government of the District of Columbia, as provided in former section 858, is carried into section 3320.

In subsection (b), the word “thereafter" is omitted as unnecessary.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

AMENDMENTS 1979-Subsec. (a). Pub. L. 96–54, $2(a)(14), substituted “Office of Personnel Management" for "Civil Service Commission''.

Subsec. (b). Pub. L. 96–54, 82(a)(15), amended subsec. (b) in same manner as amendment by Pub. L. 95–454. See 1978 Amendment note set out below.

(B) the findings of the Office. (4) In the case of a preference eligible described in paragraph (2) of this subsection, the functions of the Office under this subsection may not be delegated.

(c) When three or more names of preference eligibles are on a reemployment list appropriate for the position to be filled, a nominating or appointing authority may appoint from a register of eligibles established after examination only an individual who qualifies as a preference eligible under section 2108(3)(C)–(G) of this title. (Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 421; Pub. L. 90–83, $1(8), Sept. 11, 1967, 81 Stat. 197; Pub. L. 95-454, title III, $ 307(d), title IX, $ 906(a)(2), (3), Oct. 13, 1978, 92 Stat. 1148, 1224.)

EFFECTIVE DATE OF 1978 AMENDMENT Amendment by Pub. L. 95–454 effective 90 days after Oct. 13, 1978, see section 907 of Pub. L. 95–454, set out as a note under section 1101 of this title.

SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 2302, 3110, 3318, 3320, 9510 of this title; title 22 section 1438.

5 U.S.C. 857 (less 1st

sentence, 2d proviso, and last sentence).

Jan. 16, 1883, ch. 27, $2(2)2,

22 Stat. 404. June 27, 1944, ch. 287, 88

(less 1st sentence, 2d proviso, and last sentence),

58 Stat. 389. Aug. 14, 1953, ch. 485, 82, 67

Stat. 582. June 27, 1944, ch. 287, $15 (less Ist

sentence), 58 Stat. 391.

The word "authority” is substituted for “officer" in recognition of the several appointing authorities named in section 2105(a)(1).

In subsection (a), the provisions of former section 633(2)2 are merged in the requirement of former section 857, since the certificate must be of the three highest on the register and the nominating or appointing employee may select one of the three.

In subsection (c), the prohibition in former section 864 is restated in positive form. The words “an individual who qualifies as a preference eligible under section 2108(3)(B)-(F)” are substituted for "ten-point preference eligibles”.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

$3318. Competitive service; selection from cer

tificates (a) The nominating or appointing authority shall select for appointment to each vacancy from the highest three eligibles available for appointment on the certificate furnished under section 3317(a) of this title, unless objection to one or more of the individuals certified is made to, and sustained by, the Office of Personnel Management for proper and adequate reason under regulations prescribed by the Office.

(b)(1) If an appointing authority proposes to pass over a preference eligible on a certificate in order to select an individual who is not a preference eligible, such authority shall file written reasons with the Office for passing over the preference eligible. The Office shall make the reasons presented by the appointing authority part of the record of the preference eligible and may require the submission of more detailed information from the appointing authority in support of the passing over of the preference eligible. The Office shall determine the sufficiency or insufficiency of the reasons submitted by the appointing authority, taking into account any response received from the preference eligible under paragraph (2) of this subsection. When the Office has completed its review of the proposed passover, it shall send its findings to the appointing authority and to the preference eligible. The appointing authority shall comply with the findings of the Office.

(2) In the case of a preference eligible described in section 2108(3)(C) of this title who has a compensable service-connected disability of 30 percent or more, the appointing authority shall at the same time it notifies the Office under paragraph (1) of this subsection, notify the preference eligible of the proposed passover, of the reasons therefor, and of his right to respond to such reasons to the Office within 15 days of the date of such notification. The Office shall, before completing its review under paragraph (1) of this subsection, require a demonstration by the appointing authority that the passover notification was timely sent to the preference eligible's last known address.

(3) A preference eligible not described in paragraph (2) of this subsection, or his representative, shall be entitled, on request, to a copy of

(A) the reasons submitted by the appointing authority in support of the proposed passover, and

1978—Subsec. (a). Pub. L. 95–454, $ 906(a)(2), (3), substituted “Office of Personnel Management” and “Office” for “Civil Service Commission” and “Commi sion”, respectively.

Subsec. (b). Pub. L. 95–454, § 307(d), designated existing provisions as par. (1), substituted provisions respecting authority of the Office with respect to the selection procedures applicable, for provisions respecting authority of the Commission with respect to the selection procedures applicable, and added pars. (2) to (4).

1967–Subsec. (c). Pub. L. 90–83 substituted “section 2108(3)(C)-(G)” for “section 2108(3)(B)-(F).” See Historical and Revision Notes under section 3305 of this title.

EFFECTIVE DATE OF 1978 AMENDMENT Amendment by Pub. L. 95454 effective 90 days after Oct. 13, 1978, see section 907 of Pub. L. 95–454, set out as a note under section 1101 of this title.

SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 2302, 3320, 9510 of this title; title 22 section 1438.

Page 21

Repeal effective 90 days after Oct. 13, 1978, see section 907 of Pub. L. 95 454, set out as an Effective Date of 1978 Amendment note under section 1101 of this title.

ASSISTANCE OF UNITED STATES CIVIL SERVICE COMMIS

SION IN DEVELOPING MERIT SYSTEM FOR DISTRICT OF COLUMBIA

Pub. L. 93–198, title VII, $734, Dec. 24, 1973, 87 Stat. 823, authorized the United States Civil Service Commission to advise and assist the District of Columbia Mayor and Council in the further development of the merit system or systems required by the District of Columbia charter, which was approved on May 7, 1974, and authorized the Commission to enter into agreements with the District government to make available its registers of eligibles as a recruiting source to fill District positions as needed, with the costs of any specific services furnished by the Civil Service Commission to be compensated for under the provisions of section 685a of former Title 31, Money and Finance (31 U.S.C. 1537].

$ 3320. Excepted service; government of the Dis

trict of Columbia; selection The nominating or appointing authority shall select for appointment to each vacancy in the excepted service in the executive branch and in the government of the District of Columbia from the qualified applicants in the same manner and under the same conditions required for the competitive service by sections 3308–3318 of this title. This section does not apply to an appointment required by Congress to be confirmed by, or made with the advice and consent of, the Senate.

Amendm Oct. 13, 197 A note und

(Pub. L. 89-554, Sept. 6, 1966, 80 Stat. 422.)

HISTORICAL AND REVISION NOTES

Section lated to competiti

$3321. Competitive service; probationary period

(a) The President may take such action, including the issuance of rules, regulations, and directives, as shall provide as nearly as conditions of good administration warrant for a period of probation

(1) before an appointment in the competitive service becomes final; and

(2) before initial appointment as a supervisor or manager becomes final. (b) An individual

(1) who has been transferred, assigned, or promoted from a position to a supervisory or managerial position, and

(2) who does not satisfactorily complete the probationary period under subsection (a)(2) of

this section, shall be returned to a position of no lower grade and pay than the position from which the individual was transferred, assigned, or promoted. Nothing in this section prohibits an agency from taking an action against an individual serving a probationary period under subsection (a)(2) of this section for cause unrelated to supervisory or managerial performance.

(c) Subsections (a) and (b) of this section shall not apply with respect to appointments in the Senior Executive Service or the Federal Bureau of Investigation and Drug Enforcement Administration Senior Executive Service. (Pub. L. 89-554, Sept. 6, 1966, 80 Stat. 422; Pub. L. 95–454, title III, 9303(a), Oct. 13, 1978, 92 Stat. 1146; Pub. L. 100–325, $2(d), May 30, 1988, 102 Stat. 581.)

Former sections 858 and 869 are combined and restated for clarity and to conform to section 3318(a). The word "authority” is substituted for “officer" in recognition of the several appointing authorities named in section 2105(a)(1). The words "shall select for appointment to each vacancy in the expected service in the executive branch and in the government of the District of Columbia from the qualified applicants in the same manner and under the same conditions required for the competitive service by sections 3308-3318 of this title" are substituted for "In the unclassified Federal, and District of Columbia, civil service, and in all other positions and employment hereinbefore referred to in (c) of section 851 of this title ... shall make selection from the qualified applicants in accordance with the provisions of this chapter". The reference to the excepted service "in the executive branch" is substituted for the exception of the legislative and judicial branches in former section 869. Former section 869 did not prohibit the application of those provisions of the Act of June 27, 1944, which relate to the competitive service in the legislative or judicial branch by reason of the specific provisions of section 311 of the Act of June 10, 1921, as amended (31 U.S.C. 52); 28 U.S.C. 602; and Executive Order No. 67 of June 13, 1895. The reference to appointments of postmasters is omitted from this section since those referred to are in the competitive service. The application of former section 869 to the remainder of the Act of June 27, 1944, is covered by the sections into which the remainder is carried (see Table I).

This section merely continues, and does not in any way change, the requirements in former section 858 relative to the selection of applicants for positions in the excepted service. Under this section, the Federal Bureau of Investigation and other agencies having positions in the excepted service will continue to fill those positions in the same manner that they have been filled under former section 858. Such excepted appointments are appointments authorized to be made without regard to the statutes, rules, and regulations governing appointments in the competitive service and this is not changed.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

hal in the Di

ble moita Daisin ment

The authority of the President to prescribe rules is added on authority of former section 633(1), which is carried into section 3302. Wording is changed because in practice an appointment is not made after probation, The words “or employment” are omitted as included within “appointment”.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

EFFECTIVE DATE OF 1978 AMENDMENT Amendment by Pub. L. 95 454 effective 90 days after Oct. 13, 1978, see section 907 of Pub, L. 95–454, set out as a note under section 1101 of this title.

law judges appointed under section 3105 of this title shall apply to or with respect to administrative law judges reappointed under such section pursuant to the first sentence of this paragraph.

(c) Notwithstanding subsection (a) of this tion, a member of the Foreign Service retired under section 812 of the Foreign Service Act of 1980 is not barred by reason of his retired status from employment in a position in the civil service for which he is qualified. An annuitant so reemployed serves at the will of the appointing authority.

(d) Notwithstanding subsection (a) of this section, the Chief of Engineers of the Army, under section 569a of title 33, may employ a retired employee whose expert assistance is needed in connection with river and harbor or flood control works. There shall be deducted from the pay of an employee so reemployed an amount equal to the annuity or retired pay allocable to the period of actual employment. (Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 422; Pub. L. 96-465, title II, § 2314(a), Oct. 17, 1980, 94 Stat. 2167; Pub. L. 98–224, 82, Mar. 2, 1984, 98 Stat. 47; Pub. L. 102–378, 82(10), Oct. 2, 1992, 106 Stat. 1347.)

SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 3302, 4303, 7512, 9510 of this title.

HISTORICAL AND REVISION NOTES

June 30, 1932, ch. 314, $ 204,

47 Stat. 404. July 31, 1956, ch. 804, 8401

“Sec. 13(a)”, 70 Stat. 757. Sept. 8, 1960, Pub. L. 86–723,

$ 10(d), 74 Stat. 832. June 20, 1938, ch. 535, $5, 52

Stat. 805.

$ 3323. Automatic separations; reappointment; re

employment of annuitants (a) An individual who reaches the retirement age prescribed for automatic separation applicable to him may not be continued in the civil service or in the government of the District of Columbia. An individual separated on account of age under a statute or regulation providing for retirement on account of age is not eligible for appointment in the civil service or in the government of the District of Columbia. The President, when in his judgment the public interest so requires, may except an individual from this subsection by Executive order. This subsection does not apply to an individual named by a statute providing for the continuance of the individual in the civil service or in the government of the District of Columbia.

(b)(1) Notwithstanding other statutes, an annuitant, as defined by section 8331 or 8401, receiving annuity from the Civil Service Retirement and Disability Fund is not barred by reason of his retired status from employment in an appointive position for which the annuitant is qualified. An annuitant so reemployed, other than an annuitant reappointed under paragraph (2) of this subsection, serves at the will of the appointing authority.

(2) Subject to such regulations as the Director of the Office of Personnel Management may prescribe, any annuitant to whom the first sentence of paragraph (1) of this subsection applies and who has served as an administrative law judge pursuant to an appointment under section 3105 of this title may be reappointed an administrative law judge under such section for a specified period or for such period as may be necessary for such administrative law judge to conduct and complete the hearing and disposition of one or more specified cases. The provisions of this title that apply to or with respect to administrative

In subsection (a), the words “On and after July 1, 1932” are omitted as executed. The words "heretofore or hereafter" are omitted as unnecessary. The words "in the civil service" are substituted for "civilian service in any branch or service of the United States Government” and “to any appointive office, position, or employment under the United States” in view of the definition of “civil service" in section 2101.

In subsection (b), the words “receiving annuity from the Civil Service Retirement and Disability Fund” are substituted for “heretofore or hereafter retired under this chapter". The word "authority” is substituted for “officer" in recognition of the several appointing authorities named in section 2105(a)(1).

In subsection (c), the words "Notwithstanding subsection (a) of this section" are substituted for “Notwithstanding the provisions of sections 62 and 715a of title 5” to reflect the codification of former section 715a in subsection (a) of this section and in view of the repeal of section 62 of title 5 by $ 402(a)(7) of the Act of Aug. 19, 1964, Pub. L. 88_448, 78 Stat. 492. The words "heretofore or hereafter" and "hereafter” are omitted as unnecessary. The words “in a position in the civil service" are substituted for "in Federal Government service in any appointive position" in view of the definition of "civil service" in section 2101. The word "authority” is substituted for “officer” in recognition of the several appointing authorities named in section 2105(a)(1).

In subsection (d), the words “Notwithstanding subsection (a) of this section” are substituted for "The provisions of section 715a of title 5 shall not be so construed as to prevent” to reflect the codification of former section 715a in subsection (a) of this section, and to conform to the style of this section. The words "under section 569a of title 33” are substituted for "under agreement as authorized by sections 569a, 584a

AMENDMENTS 1992—Subsec. (b)(1). Pub. L. 102–378 substituted “annuitant, as defined by section 8331 or 8401," for "annuitant as defined by section 8331 of this title''.

1984-Subsec. (b). Pub. L. 98–224 designated existing provisions as par. (1), substituted “the annuitant" for "he" and inserted “, other than an annuitant reappointed under paragraph (2) of this subsection,”', and added par. (2).

1980-Subsec. (c). Pub. L. 96-465 substituted “member of the Foreign Service retired under section 812 of the Foreign Service Act of 1980” for “Foreign Service officer retired under section 1001 or 1002 of title 22 or a Foreign Service staff officer or employee retired under section 1063 of title 22''.

In subsection (a), the words "in GS-16, 17, and 18" are substituted for “in grades 16, 17, and 18 of the General Schedule".

In subsection (a)(2), the words “by the President" are coextensive with and substituted for “by the President alone or by the President by and with the advice and consent of the Senate".

In subsection (a)(4)(A), the words “Office of Emergency Planning” are substituted for "Office of Defense Mobilization” on authority of 1958 Reorg. Plan No. 1, $2(a), effective July 1, 1958, 72 Stat. 1799, as amended Aug. 26, 1958, Pub. L. 85-763, 72 Stat. 861, and Sept. 22, 1961, Pub. L. 87–296, 75 Stat. 630. Reference to "President's Advisory Committee on Government Organization” is omitted since the Committee was abolished by Executive Order No. 10917, February 10, 1961.

In subsection (a)(4)(B), the words “'Emergency Fund for the President' by the Treasury, Post Office, and Executive Office Appropriation Act, 1966" are substituted for “'Emergency Fund for the President, National Defense' by the General Government Matters Appropriation Act, 1959'' to reflect the heading and title of the current appropriation Act.

Subsection (b) is added on authority of former sections 1072 and 1072a, which are carried into section 5115.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

EFFECTIVE DATE OF 1980 AMENDMENT Amendment by Pub. L. 96-465 effective Feb. 15, 1981, except as otherwise provided, see section 2403 of Pub. L. 96-465, set out as an Effective Date note under section 3901 of Title 22, Foreign Relations and Intercourse.

SECTION REFERRED TO IN OTHER SECTIONS

this te Eter,

withou

the qe
the 03 lamere

b) tabolis

This section is referred to in title 22 sections 2386, 2512.

83324. Appointments to positions classified

above GS-15 (a) An appointment to a position classified above GS-15 pursuant to section 5108 may be made only on approval of the qualifications of the proposed appointee by the Office of Personnel Management. This section does not apply to a position

(1) to which appointment is made by the Chief Judge of the United States Tax Court;

(2) to which appointment is made by the President;

(3) to which appointment is made by the Librarian of Congress; or (4) the incumbent of which is paid from,

(A) appropriations for the Executive Office of the President under the heading "The White House Office”, “Special Projects”, “Council of Economic Advisers", or "National Security Council"; or

(B) funds appropriated to the President under the heading "Emergency Fund for the President” by the Treasury, Post Office, and Executive Office Appropriation Act, 1966, or a later statute making appropriations for

the same purpose. (b) The Office may prescribe regulations necessary for the administration of this section. (Pub. L. 89-554, Sept. 6, 1966, 80 Stat. 422; Pub. L. 90–83, § 1(10), Sept. 11, 1967, 81 Stat. 197; Pub. L. 95-454, title IX, $ 906(a)(2), (3), Oct. 13, 1978, 92 Stat. 1224; Pub. L. 96–54, $2(a)(17), Aug. 14, 1979, 93 Stat. 382; Pub. L. 101–509, title V, $ 529 [title I,

AMENDMENTS 1992—Pub. L. 102-378, 82(11)(A), substituted "GS-15” for “GA-15" in section catchline.

Subsec. (a)(1). Pub. L. 102–378, 82(11)(B), amended par. (1) generally. Prior to amendment, par. (1) read as follows: "provided for in section 5108(c)(2) of this title;":

1990—Pub. L. 101–509, $529 [title I, 5101(b)(9)(C)(ii)], which directed that “to positions classified above GA-15” be substituted for "at GS-16, 17, or 18” in section catchline, was executed by making the substitution for “at GS-16, 17, and 18", as the probable intent of Congress. Subsec. (a). Pub. L. 101-509,

$ 529 [title I, $ 101(b)(9)(C)(i)], substituted “classified above GS-15 pursuant to section 5108” for “in GS-16, 17, or 18".

1979–Subsec. (a)(4)(A). Pub. L. 96-54 struck out reference to Office of Emergency Planning.

1978–Subsecs. (a), (b). Pub. L. 95-454 substituted "Office of Personnel Management” for “Civil Service Commission” and “Office" for "Commission".

EFFECTIVE DATE OF 1992 AMENDMENT Amendment by Pub. L. 102–378 effective May 4, 1991, see section 9(b)(4) of Pub. L. 102-378, set out as a note under section 6303 of this title.

$3326. Appointments of retired members of the

armed forces to positions in the Department

of Defense (a) For the purpose of this section, “member" and “Secretary concerned” have the meanings given them by section 101 of title 37.

(b) A retired member of the armed forces may be appointed to a position in the civil service in or under the Department of Defense (including a nonappropriated fund instrumentality under the jurisdiction of the armed forces) during the period of 180 days immediately after his retirement only if

(1) the proposed appointment is authorized by the Secretary concerned or his designee for the purpose, and, if the position is in the competitive service, after approval by the Office of Personnel Management;

(2) the minimum rate of basic pay for the position has been increased under section 5305 of this title; or

(3) a state of national emergency exists. (c) A request by appropriate authority for the authorization, or the authorization and approval, as the case may be, required by subsection (b)(1) of this section shall be accompanied by a statement which shows the actions taken to assure that,

(1) full consideration, in accordance with placement and promotion procedures of the department concerned, was given to eligible career employees;

(2) when selection is by other than certification from an established civil service register, the vacancy has been publicized to give interested candidates an opportunity to apply;

(3) qualification requirements for the position have not been written in a manner designed to give advantage to the retired member; and

(4) the position has not been held open pending the retirement of the retired member. (Pub. L. 89-554, Sept. 6, 1966, 80 Stat. 423; Pub. L. 96–54, $2(a)(14), Aug. 14, 1979, 93 Stat. 382; Pub. L. 101-509, title V, 8529 [title I, § 101(b)(3)(A)], Nov. 5, 1990, 104 Stat. 1427, 1439.)

HISTORICAL AND REVISION NOTES

$3325. Appointments to scientific and profes

sional positions (a) Positions established under section 3104 of this title are in the competitive service. However, appointments to the positions are made without competitive examination on approval of the qualifications of the proposed appointee by the Office of Personnel Management or its designee for this purpose.

(b) This section does not apply to positions established under section 3104(c). (Pub. L. 89-554, Sept. 6, 1966, 80 Stat. 423; Pub. L. 95-454, title IX, $906(a)(2), Oct. 13, 1978, 92 Stat. 1224; Pub. L. 102-378, 82(12), Oct. 2, 1992, 106 Stat. 1347.)

In subsection (a), the words “or its designee” are substituted for “or such officers or agents as the Commission may designate”.

For repeal of the Act of Aug. 1, 1947, ch. 433, 61 Stat. 715, as amended, see revision note for section 3104.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

AMENDMENTS 1992~Subsec. (b). Pub. L. 102–378 substituted “section 3104(c)” for “section 3104(a)(7) of this title”.

1978–Subsec. (a). Pub. L. 95-454 substituted “Office of Personnel Management” for “Civil Service Commission".

In subsection (a), the definition of “armed forces” is omitted as unnecessary in view of the definition in section 2101.

In subsection (b), the words "position in the civil service" are substituted for "civilian office" in view of the definition of “civil service" in section 2101. The words “(including a nonappropriated fund instrumentality under the jurisdiction of the armed forces)” are added on authority of former section 3101(3).

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report,

AMENDMENTS 1990—Subsec. (b)(2). Pub. L. 101–509 substituted “5305" for "5303".

EFFECTIVE DATE OF 1978 AMENDMENT Amendment by Pub. L. 95-454 effective 90 days after Oct. 13, 1978, see section 907 of Pub. L. 95-454, set out as a note under section 1101 of this title.

1979—Subsec. (b)(1). Pub, L. 96-54 substituted "Office of Personnel Management” for “Civil Service Commission”.

SUSPENSION OF SECTION Pub. L. 101–510, div. A, title XII, § 1206(f), Nov. 5, 1990, 104 Stat. 1661, provided that; “Section 3326 of title 5, United States Code, shall not be in effect for the period beginning on the date of the enactment of this Act [Nov. 5, 1990] and ending two years after such date."

EFFECTIVE DATE OF 1990 AMENDMENT Amendment by Pub. L. 101-509 effective on such date as the President shall determine, but not earlier than 90 days, and not later than 180 days, after Nov. 5, 1990, see section 529 [title III, 8 305] of Pub. L. 101–509, set out as a note under section 5301 of this title.

EFFECTIVE DATE OF 1979 AMENDMENT Amendment by Pub. L. 96–54 effective July 12, 1979, see section 2(b) of Pub. L. 96–54, set out as a note under section 305 of this title.

$3327. Civil service employment information

(a) The Office of Personnel Management shall provide that information concerning opportunities to participate in competitive examinations conducted by, or under authority delegated by, the Office of Personnel Management shall be made available to the employment offices of the United States Employment Service.

(b) Subject to such regulations as the Office may issue, each agency shall promptly notify the Office and the employment offices of the United States Employment Service of

(1) each vacant position in the agency which is in the competitive service or the Senior Executive Service and for which the agency seeks applications from persons outside the Federal service, and

(2) the period during which applications will be accepted. As used in this subsection, "agency' means an agency as defined in section 5102(a)(1) of this title other than an agency all the positions in which are excepted by statute from the competitive service, (Added Pub. L. 95–454, title III, $ 309(a), Oct. 13, 1978, 92 Stat. 1151.)

of the Military Selective Service Act (50 U.S.C. App. 453); and

(2) who is not so registered or knowingly and willfully did not so register before the requirement terminated or became inapplicable to

the individual, shall be ineligible for appointment to a position in an Executive agency.

(b) The Office of Personnel Management, in consultation with the Director of the Selective Service System, shall prescribe regulations to carry out this section. Such regulations shall include provisions prescribing procedures for the adjudication of determinations of whether a failure to register was knowing and willful. Such procedures shall require that such a determination may not be made if the individual concerned shows by a preponderance of the evidence that the failure to register was neither knowing nor willful. Such procedures may provide that determinations of eligibility under the requirements of this section shall be adjudicated by the Executive agency making the appointment for which the eligibility is determined. (Added Pub. L. 99_145, title XVI, § 1622(a)(1), Nov. 8, 1985, 99 Stat. 777; amended Pub. L. 100–180, div. A, title XII, § 1249, Dec. 4, 1987, 101 Stat. 1167.)

AMENDMENTS 1987–Subsec. (b). Pub. L. 100–180 struck out "within the Office" after “for the adjudication” in second sentence and inserted at end “Such procedures may provide that determinations of eligibility under the requirements of this section shall be adjudicated by the Executive agency making the appointment for which the eligibility is determined."

SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in title 38 section 7403. $ 3329. Appointments of military reserve techni.

cians to positions in the competitive service (a) For the purpose of this section, the term "military reserve technician” has the meaning given the term "military technician (dual status)" by section 8401(30).

(b) The Secretary of Defense shall take such steps as may be necessary to ensure that, except as provided in subsection (d), any military reserve technician who is involuntarily separated from technician service, after completing at least 15 years of such service and 20 years of service creditable under section 12732 of title 10, by reason of ceasing to satisfy the condition described in section 8401(30)(B)1 shall, if appropriate written application is submitted within 1 year after the date of separation, be provided placement consideration in a position described in subsection (c) through a priority placement program of the Department of Defense.

(c)(1) The position for which placement consideration shall be provided to a former military technician under subsection (b) shall be a position

(A) in either the competitive service or the excepted service;

(B) within the Department of Defense; and

(C) in which the person is qualified to serve, taking into consideration whether the em

A prior section 3327, Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 424, which prescribed standards for determination of qualifications of postmasters, including experience in postal field service, seniority, length of service, level of difficulty and responsibility of work, attendance, awards and commendations, and performance rating, was repealed by Pub. L. 91-375, $ 6(c)(7)(A), Aug. 12, 1970, 84 Stat. 776. See section 1001 of Title 39, Postal Service.

EFFECTIVE DATE Section effective 90 days after Oct. 13, 1978, see section 907 of Pub. L. 95 454, set out as an Effective Date of 1978 Amendment note under section 1101 of this title.

SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 3304, 3330 of this title.

$ 3328. Selective Service registration (a) An individual,

(1) who was born after December 31, 1959, and is or was required to register under section 3

Page 22

intelligence activities, as determined by the President.

(b) The Office of Personnel Management shall establish and keep current a comprehensive list of all announcements of vacant positions in the competitive service within each agency that are to be filled by appointment for more than one year and for which applications are being (or will soon be) accepted from outside the agency's work force. (c) Included for any position listed shall be

(1) a brief description of the position, including its title, tenure, location, and rate of pay;

(2) application procedures, including the period within which applications may be submitted and procedures for obtaining additional information; and

(3) any other information which the Office considers appropriate.

(d) The list shall be available to members of the public.

(e) The Office shall prescribe such regulations as may be necessary to carry out this section. Any requirement under this section that agencies notify the Office as to the availability of any vacant positions shall be designed so as to avoid any duplication of information otherwise required to be furnished under section 3327 of this title or any other provision of law.

(f) The Office may, to the extent it determines appropriate, charge such fees to agencies for services provided under this section and for related Federal employment information. The Office shall retain such fees to pay the costs of providing such services and information. (Added Pub. L. 102-484, div. D, title XLIV, 8 4431(a), Oct. 23, 1992, 106 Stat. 2719, $3329; renumbered $ 3330 and amended Pub. L. 104-52, title IV, $ 4(1), Nov. 19, 1995, 109 Stat. 490; Pub. L. 104-106, div. A, title X, 81037(b)(1), Feb. 10, 1996, 110 Stat. 432.)

ployee in that position is required to be a member of a reserve component of the armed forces as a condition of employment.

(2) To the maximum extent practicable, the position shall also be in a pay grade or other pay classification sufficient to ensure that the rate of basic pay of the former military technician, upon appointment to the position, is not less than the rate of basic pay last received by the former military technician for technician service before separation. (d) This section shall not apply in the case of,

(1) an involuntary separation for cause on charges of misconduct or delinquency; or

(2) a technician who, as of the date of application under this section, is eligible for immediate (including for disability) or early retirement under subchapter III of chapter 83 or under chapter 84.

(e) The Secretary of Defense shall, in consultation with the Director of the Office of Personnel Management, prescribe such regulations as may be necessary to carry out this section. (Added Pub. L. 102-484, div. A, title V, $544(a), Oct. 23, 1992, 106 Stat. 2415; amended Pub. L. 104-106, div. A, title X, $ 1037(a), Feb. 10, 1996, 110 Stat. 431; Pub. L. 105–85, div. A, title XI, 81103, Nov. 18, 1997, 111 Stat. 1923; Pub. L. 106-398, 81 [[div. A), title X, $1087(f)(1)], Oct. 30, 2000, 114 Stat. 1654, 1654A-293.)

REFERENCES IN TEXT Section 8401(30) of this title, referred to in subsecs. (a) and (b), was amended generally by Pub. L. 106-65, div. A, title V, $522(c)(2), Oct. 5, 1999, 113 Stat. 597, and, as so amended, no longer contains a subpar. (B).

CODIFICATION Another section 3329 was renumbered section 3330 of this title.

AMENDMENTS 2000 Subsec. (a). Pub. L. 106–398, $1 [[div. A), title X, $ 1087(f)(1)(A)], substituted "the term 'military technician (dual status)'" for "such term”.

Subsec. (b). Pub. L. 106-398, $1 [[div. A), title X, $ 1087(f)(1)(B)], substituted "section 12732 of title 10" for "section 1332 of title 10”.

1997–Subsec, (b). Pub. L. 105–85 struck out "a position described in subsection (c) not later than 6 months after the date of the application” after “program of the Department of Defense”.

1996–Subsec. (b). Pub. L. 104-106, S1037(a)(1), substituted “be provided placement consideration in a position described in subsection (c) through a priority placement program of the Department of Defense" for "be offered”.

Subsec. (c). Pub. L. 104-106, 81037(a)(2), added subsec. (C) and struck out former subsec. (c) which read as follows: "The position to be offered shall be a position

“(1) in the competitive service; "(2) within the Department of Defense; “(3) for which the individual is qualified; and "(4) the rate of basic pay for which is not less than the rate last received for technician service before

separation." $3330. Government-wide list of vacant positions

(a) For the purpose of this section, the term "agency” means an Executive agency, excluding the General Accounting Office and any agency (or unit thereof) whose principal function is the conduct of foreign intelligence

or counter

1996—Pub. L. 104-106, which directed renumbering of the section 3329 of this title that was added by Pub. L. 102484, § 4431, as section 3330 of this title, could not be executed because of the intervening renumbering of that section by Pub. L. 104-52, $4(1)(A). See 1995 Amendment note below.

1995—Pub, L. 104–52, $4(1)(A), renumbered section 3329 of this title, relating to government-wide list of vacant positions, as this section.

Subsec. (f). Pub. L. 104–52, $4(1)(B), added subsec. (f). $ 3330a. Preference eligibles; administrative re

dress

(a)(1) A preference eligible who alleges that an agency has violated such individual's rights under any statute or regulation relating to veterans' preference may file a complaint with the Secretary of Labor.

(2)(A) A complaint under this subsection must be filed within 60 days after the date of the alleged violation.

(B) Such complaint shall be in writing, be in such form as the Secretary may prescribe, specify the agency against which the complaint is filed, and contain a summary of the allegations that form the basis for the complaint.

(3) The Secretary shall, upon request, provide technical assistance to a potential complainant

70-001p01 D-01 -- 28 : QL 3

(B) appropriate evidence of compliance with subparagraph (A) is included (in such form and manner as the Merit Systems Protection Board may prescribe) with the notice of appeal under this subsection.

(3) Upon receiving notification under paragraph (2)(A), the Secretary shall not continue to investigate or further attempt to resolve the complaint to which the notification relates.

(e)(1) This section shall not be construed to prohibit a preference eligible from appealing directly to the Merit Systems Protection Board from any action which is appealable to the Board under any other law, rule, or regulation, in lieu of administrative redress under this section.

(2) A preference eligible may not pursue redress for an alleged violation described in subsection (a) under this section at the same time the preference eligible pursues redress for such violation under any other law, rule, or regulation. (Added Pub. L. 105–339, 83(a), Oct. 31, 1998, 112 Stat. 3182.)

SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 3330b, 3330c of this title.

with respect to a complaint under this subsection.

(b)(1) The Secretary of Labor shall investigate each complaint under subsection (a).

(2) In carrying out any investigation under this subsection, the Secretary's duly authorized representatives shall, at all reasonable times, have reasonable access to, for purposes of examination, and the right to copy and receive, any documents of any person or agency that the Secretary considers relevant to the investigation.

(3) In carrying out any investigation under this subsection, the Secretary may require by subpoena the attendance and testimony of witnesses and the production of documents relating to any matter under investigation. In case of disobedience of the subpoena or contumacy and on request of the Secretary, the Attorney General may apply to any district court of the United States in whose jurisdiction such disobedience or contumacy occurs for an order enforcing the subpoena.

(4) Upon application, the district courts of the United States shall have jurisdiction to issue writs commanding any person or agency to comply with the subpoena of the Secretary or to comply with any order of the Secretary made pursuant to a lawful investigation under this subsection and the district courts shall have jurisdiction to punish failure to obey a subpoena or other lawful order of the Secretary as a contempt of court.

(c)(1)(A) If the Secretary of Labor determines as a result of an investigation under subsection (b) that the action alleged in a complaint under subsection (a) occurred, the Secretary shall attempt to resolve the complaint by making reasonable efforts to ensure that the agency specified in the complaint complies with applicable provisions of statute or regulation relating to veterans' preference.

(B) The Secretary of Labor shall make determinations referred to in subparagraph (A) based on a preponderance of the evidence.

(2) If the efforts of the Secretary under subsection (b) with respect to a complaint under subsection (a) do not result in the resolution of the complaint, the Secretary shall notify the person who submitted the complaint, in writing, of the results of the Secretary's investigation under subsection (b).

(d)(1) If the Secretary of Labor is unable to resolve a complaint under subsection (a) within 60 days after the date on which it is filed, the complainant may elect to appeal the alleged violation to the Merit Systems Protection Board in accordance with such procedures as the Merit Systems Protection Board shall prescribe, except that in no event may any such appeal be brought

(A) before the 61st day after the date on which the complaint is filed; or

(B) later than 15 days after the date on which the complainant receives written notification from the Secretary under subsection (c)(2).

(2) An appeal under this subsection may not be brought unless

(A) the complainant first provides written notification to the Secretary of such complainant's intention to bring such appeal; and

§ 3330b. Preference eligibles; judicial redress

(a) In lieu of continuing the administrative redress procedure provided under section 3330a(d), a preference eligible may elect, in accordance with this section, to terminate those administrative proceedings and file an action with the appropriate United States district court not later than 60 days after the date of the election.

(b) An election under this section may not be made

(1) before the 121st day after the date on which the appeal is filed with the Merit Systems Protection Board under section 3330a(d);

(2) after the Merit Systems Protection Board has issued a judicially reviewable decision on the merits of the appeal.

(c) An election under this section shall be made, in writing, in such form and manner as the Merit Systems Protection Board shall by regulation prescribe. The election shall be effective as of the date on which it is received, and the administrative proceeding to which it relates shall terminate immediately upon the receipt of such election. (Added Pub. L. 105–339, $3(a), Oct. 31, 1998, 112 Stat. 3184.)

SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 3330c of this title. $ 3330c. Preference eligibles; remedy

(a) If the Merit Systems Protection Board (in a proceeding under section 3330a) or a court (in a proceeding under section 3330b) determines that an agency has violated a right described in section 3330a, the Board or court (as the case may be) shall order the agency to comply with such provisions and award compensation for any

loss of wages or benefits suffered by the individual by reason of the violation involved. If the Board or court determines that such violation was willful, it shall award an amount equal to backpay as liquidated damages.

(b) A preference eligible who prevails in an action under section 3330a or 3330b shall be awarded reasonable attorney fees, expert witness fees, and other litigation expenses. (Added Pub. L. 105–339, $3(a), Oct. 31, 1998, 112 Stat. 3184.)

Dec. 11, 1926, Ch. 4, si, 44

Stat. 918. Mar. 2, 1927, ch. 284, 44 Stat.

1346. Sept. 23, 1950, ch. 1010, $10,

64 Stat. 987.

o resolraai I relate

COMSTEN appealizat Cection 3x slable to o or regalecia uder this

SUBCHAPTER 11-OATH OF OFFICE

An individual, except the President, elected or appointed to an office of honor or profit in the civil service or uniformed services, shall take the following oath: "I, AB, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.” This section does not affect other oaths required by law. (Pub. L. 89-554, Sept. 6, 1966, 80 Stat. 424.)

The section is restated for clarity and conciseness. The term "officer” is coextensive with and substituted for “Each individual appointed hereafter as a civil officer of the United States by the President, by and with the advice and consent of the Senate, or by the President alone, or by a court of law, or by the head of a department” in view of the definition of “officer” in section 2104.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 5507 of this title; title 22 section 4001; title 42 section 211. $ 3333. Employee affidavit; loyalty and striking

against the Government (a) Except as provided by subsection (b) of this section, an individual who accepts office or employment in the Government of the United States or in the government of the District of Columbia shall execute an affidavit within 60 days after accepting the office or employment that his acceptance and holding of the office or employment does not or will not violate section 7311 of this title. The affidavit is prima facie evidence that the acceptance and holding of office or employment by the affiant does not or will not violate section 7311 of this title.

(b) An affidavit is not required from an individual employed by the Government of the United States or the government of the District of Columbia for less than 60 days for sudden emergency work involving the loss of human life or the destruction of property. This subsection does not relieve an individual from liability for violation of section 7311 of this title. (Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 424.)

R.S. $ 1757. May 13, 1884, ch. 46, $82, 3, 23

Stat. 22.

All but the quoted language in R.S. $1757 is omitted as obsolete since R.S. $1757 was originally an alternative oath to the oath prescribed in R.S. $ 1756 which oath was repealed by the Act of May 13, 1884, ch. 46, 82, 23 Stat. 22. The words "An individual, except the President, ... in the civil service or uniformed services” are substituted for “any person ... either in the civil, military, or naval service, except the President of the United States”. The second sentence of former section 16 is changed to read, “This section does not affect other oaths required by law.”.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 2903, 2904, 2905, 2906, 3332 of this title; title 2 section 64-1; title 10 sections 578, 603, 626, 12201, 14309; title 14 sections 273, 735; title 22 section 2504; title 33 section 854a-2; title 42 sections 1971, 4954. § 3332. Officer affidavit; no consideration paid

for appointment An officer, within 30 days after the effective date of his appointment, shall file with the oath of office required by section 3331 of this title an affidavit that neither he nor anyone acting in his behalf has given, transferred, promised, or paid any consideration for or in the expectation or hope of receiving assistance in securing the appointment. (Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 424.)

Aug. 9, 1955, ch. 690, 92, 69

Stat. 624. June 29, 1956, ch. 479, $3 (as

applicable to the Act of Aug. 9, 1955, ch. 690, $2, 69 Stat. 624), 70 Stat. 453.

The section is restated for clarity and to conform to the style of section 3332.

In subsection (a), the words “after August 9, 1955" are omitted as executed. The words “if the affidavit is executed prior to acceptance of such office or employment” are omitted as unnecessary. The words "From and after July 1, 1956”, appearing in the Act of June 29, 1956, are omitted as executed.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in title 22 section 4001; title 39 section 410.

SUBCHAPTER III-DETAILS, VACANCIES,

AND APPOINTMENTS

(1) the term “base closure law" means

(A) section 2687 of title 10;

(B) title II of the Defense Authorization Amendments and Base Closure and Realignment Act (10 U.S.C. 2687 note); and

(C) the Defense Base Closure and Realignment Act of 1990 (10 U.S.C. 2687 note); and (2) the term "military installation"

(A) in the case of an installation covered by section 2687 of title 10, has the meaning given such term in subsection (e)(1) of such section;

(B) in the case of an installation covered by the Act referred to in subparagraph (B) of paragraph (1), has the meaning given such term in section 209(6) of such Act; and

(C) in the case of an installation covered by the Act referred to in subparagraph (C) of that paragraph, has the meaning given such

term in section 2910(4) of such Act. (Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 424; Pub. L. 104-106, div. A, title X, $1033(a), Feb. 10, 1996, 110 Stat. 429.)

Fa restri aployees tle: positL

AMENDMENTS 1998-Pub. L. 105–277, div. C, title I, § 151(c)(2), Oct. 21, 1998, 112 Stat. 2681-616, substituted “DETAILS, VACANCIES, AND APPOINTMENTS” for “DETAILS” as subchapter heading. ANNUAL REPORT TO CONGRESS ON EMPLOYEES OR MEM

BERS OF ARMED SERVICES DETAILED TO EXECUTIVE AGENCIES; EXEMPTIONS

Pub. L. 103-329, title VI, $ 619, Sept. 30, 1993, 108 Stat. 2420, which directed each Executive agency detailing personnel submit an annual report to Senate and House Committees on Appropriations on all employees or members of armed services detailed to Executive agencies, listing grade, position, and offices of each person detailed and agency to which each such person was detailed, with exemptions for certain intelligence agencies, 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. Similar provisions were contained in the following prior appropriations acts:

Pub. L. 103–123, title VI, $617, Oct. 28, 1993, 107 Stat. 1263.

Pub. L. 102-393, title VI, $ 619, Oct. 6, 1992, 106 Stat. 1769; repealed by Pub. L. 104-66, title III, $3001(h), Dec. 21, 1995, 109 Stat. 734.

Pub. L. 102–141, title VI, § 619, Oct. 28, 1991, 105 Stat. 871.

Pub. L. 101–509, title VI, 8616, Nov. 5, 1990, 104 Stat. 1474.

Pub. L. 101–136, title VI, $616, Nov. 3, 1989, 103 Stat, 819.

Pub. L. 100_440, title VI, 8 616, Sept. 22, 1988, 102 Stat. 1754.

Pub. L. 100–202, $101(m) [title VI, 8 621], Dec. 22, 1987, 101 Stat. 1329-390, 1329–427.

aploping Pub. L. 103 TRE 31, MC

SUBCHAPTER REFERRED TO IN OTHER SECTIONS This subchapter referred to in title 42 section 6635.

The words “Executive department” are substituted for “department” as the definition of "department” applicable to this section is coextensive with the definition of “Executive department” in section 101.

The words “or military department” are inserted to preserve the application of the source law. Before enactment of the National Security Act Amendments of 1949 (63 Stat. 578), the Department of the Army, the Department of the Navy, and the Department of the Air Force were Executive departments. The National Security Act Amendments of 1949 established the Department of Defense as an Executive Department including the Department of the Army, the Department of the Navy, and the Department of the Air Force as military departments, not as Executive departments. However, the source law for this section, which was in effect in 1949, remained applicable to the Secretaries of the milltary departments by virtue of section 12(g) of the National Security Act Amendments of 1949 (63 Stat. 591), which is set out in the reviser's note for section 301.

The word “detail” is coextensive with and is substituted for "alter the distribution”. The word "clerks" is omitted as included in "employees”. The words "as he may find it necessary and proper to do” and “from time to time" are omitted as surplusage.

This section was part of title IV of the Revised Statutes. The Act of July 26, 1947, ch, 343, 5201(d), as added Aug. 10, 1949, ch. 412, 84, 63 Stat. 579 (former 5 U.S.C. 171–1), which provides "Except to the extent inconsistent with the provisions of this Act (National Security Act of 1947], the provisions of title IV of the Revised Statutes as now or hereafter amended shall be applicable to the Department of Defense” is omitted from this title but is not repealed.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

REFERENCES IN TEXT Section 209(6) of such Act, referred to in subsec. (C)(2)(B), means section 209(6) of Pub. L. 100-526, which is set out as a note under section 2687 of Title 10, Armed Forces.

Section 2910(4) of such Act, referred to in subsec. (c)(2)(C), means section 2910(4) of Pub. L. 101-510, which is set out as a note under section 2687 of Title 10.

$3341. Details; within Executive or military de

partments (a) The head of an Executive department or military department may detail employees among the bureaus and offices of his department, except employees who are required by law to be exclusively engaged on some specific work.

(b)(1) Details under subsection (a) of this section may be made only by written order of the head of the department, and may be for not more than 120 days. These details may be renewed by written order of the head of the department, in each particular case, for periods not exceeding 120 days.

(2) The 120-day limitation in paragraph (1) for details and renewals of details does not apply to the Department of Defense in the case of a detail

(A) made in connection with the closure or realignment of a military installation pursuant to a base closure law or an organizational restructuring of the Department as part of a reduction in the size of the armed forces or the civilian workforce of the Department; and

(B) in which the position to which the employee is detailed is eliminated on or before the date of the closure, realignment, or restructuring. (c) For purposes of this section

(1) without reimbursement to the United States by the international organization; or

(2) with agreement by the international organization to reimburse the United States for all or part of the pay, travel expenses, and allowances payable during the detail, and the reimbursement shall be credited to the appropriation, fund, or account used for paying the amounts reimbursed.

(e) An employee detailed under subsection (b) of this section may be paid or reimbursed by an international organization for allowances or expenses incurred in the performance of duties required by the detail, without regard to section 209 of title 18. (Pub. L. 89-554, Sept. 6, 1966, 80 Stat. 425; Pub. L. 91–175, pt. V, $ 502(a), Dec. 30, 1969, 83 Stat. 825.)

HISTORICAL AND REVISION NOTES

TRANSFER OF APPROPRIATED FUNDS; FUNDING OF

DETAILED EMPLOYEES For restriction on availability of funds for salaries of employees reassigned on temporary detail basis to another position without independent approval by head of employing department or agency, see section 515(3) of Pub. L. 103–333, set out as a note under section 1301 of Title 31, Money and Finance.

SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 9510 of this title; title 15 section 652; title 42 section 5667g-2. [83342. Repealed. Pub. L. 102-378, $2(13)(A), Oct.

2, 1992, 106 Stat. 1347] Section, added Pub, L. 101-416, $2(a)(1), Oct. 12, 1990, 104 Stat. 902, related to Federal participants in executive exchange programs.

A prior section 3342, Pub. L. 89-554, Sept. 6, 1966, 80 Stat. 425, which prohibited details of employees from field service to Executive department in District of Columbia except for temporary duty, details specifically provided for by law, or detailing of one employee from Bureau of Customs for duty in District of Columbia, was repealed by Pub. L. 89-762, $1(a), Nov. 5, 1966, 80 Stat. 1312.

Aug. 28, 1958, Pub. L. 85–795,

$2, 72 Stat. 959. Aug. 28, 1958, Pub. L. 85–795,

$3, 72 Stat. 959.

In subsection (a)(2), the words “without a change of position from the agency by which he is employed to an international organization” are substituted for "without the employee's transfer from the Federal agency by which he is employed” to eliminate the necessity of carrying into this section the definition of "transfer”. appearing in former section 2331(5).

In subsection (e), the words “section 209 of title 18" are substituted for “section 1914 of title 18" on authority of the Act of Oct. 23, 1962, Pub. L. 87–849, 82, 76 Stat. 1126.

Other definitions appearing in former section 2331 are omitted from this section as inappropriate but are carried into section 3581.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

AMENDMENTS 1969-Subsec. (b). Pub. L. 91-175 substituted “5” for “3” and inserted provision enabling President, regarding an agency employee detailed to an international organization for 5 years, to extend the 5-year period for up to an additional 3 years.

DETAILS TO INTERNATIONAL ORGANIZATIONS For provisions concerning the providing for details of Federal employees to international organizations and the delegation of Presidential authority, concerning the extension of a detail under this section, to the Secretary of State, see Ex. Ord. No. 11552, Aug. 24, 1970, 35 F.R. 13569, set out as a note under section 3584 of this title.

SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 3584 of this title; title 26 section 3121; title 42 section 410.

EFFECTIVE DATE OF REPEAL Section repealed effective Oct. 1, 1991, see section 9(b)(3) of Pub. L. 102-378, set out as an Effective Date of 1992 Amendment note under section 6303 of this title. $ 3343. Details; to international organizations (a) For the purpose of this section

(1) "agency", "employee", and “international organization” have the meanings given them by section 3581 of this title; and

(2) “detail” means the assignment or loan of an employee to an international organization without a change of position from the agency by which he is employed to an international organization. (b) The head of an agency may detail, for a period of not more than 5 years, an employee of his agency to an international organization which requests services, except that under special circumstances, where the President determines it to be in the national interest, he may extend the 5-year period for up to an additional 3 years.

(c) An employee detailed under subsection (b) of this section is deemed, for the purpose of preserving his allowances, privileges, rights, seniority, and other benefits, an employee of the agency from which detailed, and he is entitled to pay, allowances, and benefits from funds available to that agency. The authorization and payment of these allowances and other benefits from appropriations

available therefor is deemed to comply with section 5536 of this title.

(d) Details may be made under subsection (b) of this section

$ 3344. Details; administrative law judges

An agency as defined by section 551 of this title which occasionally or temporarily is insufficiently staffed with administrative law judges appointed under section 3105 of this title may use administrative law judges selected by the Office of Personnel Management from and with the consent of other agencies. (Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 425; Pub. L. 95–251, $2(a)(1), (b)(2), Mar. 27, 1978, 92 Stat. 183;

Page 23

Pub. L. 95 454, title IX, 8 906(a)(2), Oct. 13, 1978, 92 Stat. 1224.)

HISTORICAL AND REVISION NOTES

tinh su
tire date of

"C) CER mits to t1

ulter the e

woich sac

date, the

date shall

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

AMENDMENTS 1978Pub. L. 95 454 substituted “Office of Personnel Management" for "Civil Service Commission'.

Pub. L. 95–251 substituted references to administrative law judges for references to hearing examiners in section catchline and wherever appearing in text.

EFFECTIVE DATE OF 1978 AMENDMENT Amendment by Pub. L. 95 454 effective 90 days after Oct. 13, 1978, see section 907 of Pub. L. 95 454, set out as a note under section 1101 of this title.

21. Ord. A I'Lereby soi Labo minated is of the te absence Sretary di labor. The Assis Labor SL Pri (1) in Ender (Der up bs oro sh desig under of th

SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 559, 1305 of this title; title 15 sections 1541, 1715; title 29 section 661; title 30 section 823; title 31 section 3801; title 42 sections 2000e-4, 3608, 3787.

(A) during the 365-day period preceding the date of the death, resignation, or beginning of inability to serve, such person

(i) did not serve in the position of first assistant to the office of such officer; or

(ii) served in the position of first assistant to the office of such officer for less than 90 days; and

(B) the President submits a nomination of such person to the Senate for appointment to such office.

(2) Paragraph (1) shall not apply to any person if—

(A) such person is serving as the first assistant to the office of an officer described under subsection (a);

(B) the office of such first assistant is an office for which appointment is required to be made by the President, by and with the advice and consent of the Senate; and

(C) the Senate has approved the appointment of such person to such office.

(c)(1) Notwithstanding subsection (a)(1), the President (and only the President) may direct an officer who is nominated by the President for reappointment for an additional term to the same office in an Executive department without a break in service, to continue to serve in that office subject to the time limitations in section 3346, until such time as the Senate has acted to confirm or reject the nomination, notwithstanding adjournment sine die.

(2) For purposes of this section and sections 3346, 3347, 3348, 3349, 3349a, and 3349d, the expiration of a term of office is an inability to perform the functions and duties of such office. (Added Pub. L. 105–277, div. C, title I, § 151(b), Oct. 21, 1998, 112 Stat. 2681-611.)

REFERENCES IN TEXT The General Schedule, referred to in subsec. (a)(3)(B), is set out under section 5332 of this title.

PRIOR PROVISIONS A prior section 3345, Pub. L. 89-554, Sept. 6, 1966, 80 Stat. 425; Pub. L. 100–398, 37(a)(1), (2), Aug. 17, 1988, 102 Stat. 988, provided for details to office of head of Executive agency or military department, prior to repeal by Pub. L. 105-277, div. C, title I, 9151(b), (d)(1), Oct. 21, 1998, 112 Stat. 2681-611, 2681–616, effective 30 days after Oct. 21, 1998.

the same taken thei This or lze 17,

§ 3345. Acting officer

(a) If an officer of an Executive agency (including the Executive Office of the President, and other than the General Accounting Office) whose appointment to office is required to be made by the President, by and with the advice and consent of the Senate, dies, resigns, or is otherwise unable to perform the functions and duties of the office

(1) the first assistant to the office of such officer shall perform the functions and duties of the office temporarily in an acting capacity subject to the time limitations of section 3346;

(2) notwithstanding paragraph (1), the President (and only the President) may direct a person who serves in an office for which appointment is required to be made by the President, by and with the advice and consent of the Senate, to perform the functions and duties of the vacant office temporarily in an acting capacity subject to the time limitations of section 3346; or

(3) notwithstanding paragraph (1), the President (and only the President) may direct an officer or employee of such Executive agency to perform the functions and duties of the vacant office temporarily in an acting capacity, subject to the time limitations of section 3346, if

(A) during the 365-day period preceding the date of death, resignation, or beginning of inability to serve of the applicable officer, the officer or employee served in a position in such agency for not less than 90 days; and

(B) the rate of pay for the position described under subparagraph (A) is equal to or greater than the minimum rate of pay payable for a position at GS-15 of the General

Schedule. (b)(1) Notwithstanding subsection (a)(1), a person may not serve as an acting officer for an office under this section, if

EFFECTIVE DATE Pub. L. 105–277, div. C, title I, § 151(d), Oct. 21, 1998, 112 Stat. 2681-616, provided that:

“(1) EFFECTIVE DATE.--Subject to paragraph (2), this section (enacting this section and sections 3346 to 3349d of this title, repealing former sections 3345 to 3349 of this title, and enacting provisions set out as a note under section 3301 of this title) and the amendments made by this section shall take effect 30 days after the date of enactment of this section (Oct. 21, 1998). "(2) APPLICATION.

“(A) IN GENERAL.- This section shall apply to any office that becomes vacant after the effective date of this section.

"(B) IMMEDIATE APPLICATION OF TIME LIMITATION.“ Notwithstanding subparagraph (A), for any office vacant on the effective date of this section, the time limitations under section 3346 of title 5, United States Code (as amended by this section) shall apply to such office. Such time limitations shall apply as

though such office first became vacant on the effective date of this section.

"(C) CERTAIN NOMINATIONS.-If the President submits to the Senate the nomination of any person after the effective date of this section for an office for which such person had been nominated before such date, the next nomination of such person after such date shall be considered a first nomination of such person to that office for purposes of sections 3345 through 3349 and section 3349d of title 5, United States Code (as amended by this section).” EX. ORD. No. 10513. DESIGNATION OF OFFICERS TO ACT AS

SECRETARY OF LABOR Ex. Ord. No. 10513, Jan. 19, 1954, 19 F.R. 369, provided: I hereby authorize and direct the Assistant Secretaries of Labor and the Solicitor of Labor, in the order designated as hereinafter provided, to perform the duties of the office of the Secretary of Labor in case of the absence, sickness, resignation, or death of both the Secretary of Labor and the Under [Deputy] Secretary of Labor.

The Assistant Secretaries of Labor and the Solicitor of Labor shall act as Secretary of Labor as herein provided (1) in such order as the Secretary of Labor (or the Under [Deputy) Secretary when acting as Secretary) may by order designate from time to time, or (2) if no such designation order is in effect at the time, in the order of the respective dates of their commissions, or in the event that two or more of their commissions bear the same date, in the order in which they shall have taken their oath of office.

This order supersedes Executive Order No. 9968 of June 17, 1948, entitled “Designation of Certain Officers To Act as Secretary of Labor.”

DWIGHT D. EISENHOWER. Ex. ORD. NO. 11274. ORDER OF SUCCESSION-DEPARTMENT

OF HOUSING AND URBAN DEVELOPMENT Ex. Ord. No. 11274, Mar. 30, 1966, 31 F.R. 5243, as amended by Pub. L. 101-509, title V, $529 [title I, $112(c)], Nov. 5, 1990, 104 Stat. 1427, 1454, provided: By virtue of the authority vested in me by Section 179 of the Revised Statutes (5 U.S.C. 6) and Section 301 of Title

of the United States Code, and as President of the United States, it is ordered as follows:

1. In the event of a vacancy in the Office of the Secretary of Housing and Urban Development or during the absence or disability of the Secretary, the Deputy Secretary shall act as Secretary of Housing and Urban Development.

2. During any period when, by reason of absence, disability, or vacancy in office, neither the Secretary nor the Deputy Secretary is available to exercise the powers or perform the duties of the Office of the Secretary, an Assistant Secretary or the General Counsel, in such order as the Secretary may from time to time prescribe, shall act as Secretary of Housing and Urban Development. If no such order of succession is in effect at that time, then they shall act in the order in which they shall have taken office as Assistant Secretaries or General Counsel. Ex. ORD. No. 11487. DESIGNATION OF OFFICERS OF THE DEPARTMENT OF THE INTERIOR TO ACT AS SECRETARY OF THE INTERIOR

Ex. Ord. No. 11487, Oct. 6, 1969, 34 F.R. 15593, as amended by Pub. L. 101-509, title V, $529 [title I, $112(c)], Nov. 5, 1990, 104 Stat. 1427, 1454, provided:

By virtue of the authority vested in me by [former] section 3347 of title 5 of the United States Code and section 301 of title 3 of the United States Code, and as President of the United States, it is ordered as follows:

SECTION 1. During any period when by reason of absence, disability, or vacancy in office, neither the Secretary of the Interior nor the Deputy Secretary of the Interior is available to exercise the powers or perform the duties of the office of Secretary, an Assistant Secretary of the Interior or the Solicitor of the Depart

ment of the Interior, in such order as the Secretary of the Interior may from time to time prescribe, shall act as Secretary. If no such order of succession is in effect at that time, they shall act as Secretary in the order in which they shall have taken office as Assistant Secretaries or Solicitor.

SEC. 2. This order supersedes Executive Order No. 10753 of February 15, 1958, entitled “Designation of certain officers of the Department of the Interior to act as Secretary of the Interior." EX. ORD. No. 11822. DESIGNATION OF OFFICERS OF THE

DEPARTMENT OF THE TREASURY TO ACT AS SECRETARY
OF THE TREASURY

Ex. Ord. No. 11822, Dec. 10, 1974, 39 F.R. 43275, provided:

By virtue of the authority vested in me by [former] section 3347 of title 5 and section 301 of title 3 of the United States Code and as President of the United States, it is ordered as follows:

SECTION 1. During any period when, by reason of absence, disability, or vacancy in office, either the Secretary of the Treasury or his Deputy Secretary is not available to exercise the powers or perform the duties of the office of Secretary, an officer from the Department of the Treasury appointed by the President-by and with the advice and consent of the Senate, in such order as the Secretary of the Treasury may from time to time prescribe_shall act as Secretary until the absence or the disability of the incumbent shall cease, or until a successor is appointed. If no such order of succession is in effect at that time, then such officers shall act as Secretary in the descending order of rank, as established by their offices being listed in sections 5314, 5315 or 5316 of title 5 of the United States Code and, at each level of the Executive Schedule, in the order which they shall have taken the oath as such officers.

SEC. 2. Executive Order No. 11680 of August 21, 1972, entitled "Designation of Certain Officers to Act as Secretary of the Treasury” is hereby revoked.

GERALD R. FORD. EX. ORD. No. 11880. DESIGNATION OF OFFICERS OF THE

DEPARTMENT OF COMMERCE TO ACT AS SECRETARY OF COMMERCE

Ex. Ord. No. 11880, Oct. 2, 1975, 40 F.R. 46089, as amended by Ex. Ord. No. 12608, Sept. 9, 1987, 52 F.R. 34617; Ex. Ord. No. 12998, Apr. 5, 1996, 61 F.R. 15873, provided:

By virtue of the authority vested in me by [former] section 3347 of Title 5 of the United States Code and section 301 of Title 3 of the United States Code, and as President of the United States, it is hereby ordered as follows:

SECTION 1. During any period when, by reason of absence, disability or vacancy in office, both the Secretary of Commerce and the Deputy Secretary of Commerce are not available to exercise the powers or perform the duties of the Office of Secretary, an Assistant Secretary of Commerce, the General Counsel of the Department of Commerce, or an officer of the Department of Commerce appointed by the President with the advice and consent of the Senate in such order as the Secretary of Commerce may from time to time prescribe, shall act as Secretary. If no such order of succession is in effect at that time, an Assistant Secretary or the General Counsel shall act as Secretary in the order in which they shall have taken office as Assistant Secretaries or General Counsel.

SEC. 2. The President may at any time, pursuant to law but without regard to the foregoing provisions of this order, direct that an officer, as defined in [former] 5 U.S.C. 3347, and specified by the President shall act as Secretary of Commerce.

SEC. 3. This Order supersedes Executive Order No. 11388 of January 15, 1968.

EX. ORD, No. 11957. DESIGNATION OF CERTAIN OFFICERS

OF THE DEPARTMENT OF AGRICULTURE TO ACT AS SEC-
RETARY OF AGRICULTURE. Ex. Ord. No. 11957, Jan. 13, 1977, 42 F.R. 3295, provided:

By virtue of the authority vested in me by (former] Section 3347 of Title 5 and section 301 of Title 3 of the United States Code, and as President of the United States of America, it is hereby ordered as follows:

SECTION 1. During any period when, by reason of absence, disability, or vacancy in office, both the Secretary of Agriculture and the Deputy Secretary of Agriculture are not available to exercise the powers or perform the duties of the Office of Secretary, the officers from the Department of Agriculture whose appointments are vested in the President, by and with the advice and consent of the Senate, shall act as Secretary in such order as the Secretary of Agriculture may from time to time prescribe. If no such order of succession is in effect at that time, then such officers shall act as Secretary in the descending order of rank, as established by the listing of their offices in Sections 5314, 5315 or 5316 of Title 5 of the United States Code and, at each level of the Executive Schedule, in the order in which they shall have taken oath as such officers.

SEC. 2. Executive Order No. 11793 of July 10, 1974, is hereby revoked.

GERALD R. FORD.

(1) In these instances, the designation of an Acting Secretary of the Navy applies only for the duration of the Secretary's absence or disability, and does not affect the authority of the Secretary to resume the powers of his office upon his return.

(2) In the event that the Secretary of the Navy is merely absent from this position, the Secretary of the Navy may continue to exercise the powers and fulfill the duties of his office during his absence, notwithstanding the provisions of this order.

(c) Precedence among those officers designated in paragraph (a) of this section who have the same date of appointment shall be determined by the Secretary of the Navy at the time that such appointments are made.

(d) Notwithstanding paragraph (a) and (b) of this section, an officer shall not act for or exercise the powers of the Secretary of the Navy under this order if that officer serves only in an acting capacity in the position that would otherwise entitle him to do so.

SEC. 2. Temporary Nature of Succession. Succession to act for and exercise the powers of the Secretary of the Navy pursuant to this order shall be on a temporary or interim basis and shall not have the effect of vacating the statutory appointment held by the successor.

WILLIAM J. CLINTON.

EX. ORD. NO. 12908. ORDER OF SUCCESSION OF OFFICERS

TO ACT AS SECRETARY OF THE ARMY

EX. ORD. No. 12343. DESIGNATION OF CERTAIN OFFICERS

TO ACT AS SECRETARY OF STATE Ex. Ord. No. 12343, Jan. 27, 1982, 47 F.R. 4225, provided:

By the authority vested in me as President of the United States of America by [former] Section 3347 of Title 5 and Section 301 of Title 3 of the United States Code, it is hereby ordered as follows:

SECTION 1. During any period when, by reason of absence, sability, or vacancy in office, neither the Secretary of State nor the Deputy Secretary of State, is available to exercise the powers or perform the duties of the Office of the Secretary, an officer from the Department of State who has been appointed by the President, by and with the advice and consent of the Senate, in such order as the Secretary of State may from time to time prescribe, shall act as Secretary. If no such order of succession is in effect at that time, then such officers shall act as Secretary in descending order of rank, as established by the listing of their offices in Sections 5314 or 5315 of Title 5 of the United States Code, and at each level of the Executive Schedule in the order in which they shall have taken the oath as such officers.

SEC, 2. The President may at any time, pursuant to law but without regard to the foregoing provisions of this Order, direct that an officer specified by the President shall act as Secretary of State. SEC. 3. Executive Order No. 10839 is revoked.

RONALD REAGAN.

Ex. Ord. No. 12908, Apr. 22, 1994, 59 F.R. 21907, provided:

By the authority vested in me as President by the Constitution and the laws of the United States of America, including [former] section 3347 of title 5, United States Code, it is hereby ordered as follows:

SECTION 1. Succession To Act as the Secretary of the Army.

(a) In the event of the death, permanent disability, or resignation of the Secretary of the Army, the incumbents holding the positions designated below, in the order indicated, shall act for and exercise the powers of the Secretary of the Army:

(1) The Under Secretary of the Army.

(2) The Assistant Secretaries and General Counsel of the Army, in the order fixed by their length of service as permanent appointees in such positions.

(3) The Chief of Staff of the Army. (b) In the event of the absence or temporary disability of the Secretary of the Army, the incumbents holding the Department of the Army positions designated in paragraph (a) of this section, in the order indicated, shall act for and exercise the powers of the Secretary of the Army.

(1) The designation of an Acting Secretary of the Army under this subsection applies only for the duration of the Secretary's absence or disability, and does not affect the authority of the Secretary to resume the powers of the Secretary's office.

(2) When the Secretary of the Army is temporarily absent from the position, the Secretary of the Army may continue to exercise the powers and fulfill the duties of his office during his absence, notwithstanding the provisions of this order.

(c) Precedence among those officers designated paragraph (a) of this section who have the same date of appointment shall be determined by the Secretary of the Army at the time that such appointments are made.

(d) Notwithstanding paragraphs (a) and (b) of this section, an officer shall not act for or exercise the powers of the Secretary of the Army under this order if that officer serves only in an acting capacity in the position that would otherwise entitle him to do so.

SEC. 2. Temporary Nature of Succession. Succession to act for and exercise the powers of the Secretary of the Army pursuant to this order shall be on a temporary or interim basis and shall not have the effect of vacating the statutory appointment held by the successor.

WILLIAM J. CLINTON.

EX. ORD. NO. 12879. ORDER OF SUCCESSION OF OFFICERS

TO ACT AS SECRETARY OF THE NAVY Ex. Ord. No. 12879, Nov. 8, 1993, 58 F.R. 59929, provided:

By the authority vested in me as President by the Constitution and the laws of the United States of America, including (former] section 3347 of title 5, United States Code, it is hereby ordered as follows:

SECTION 1. Succession to the Authority of the Secretary of the Navy.

(a) In the event of the death, permanent disability, or resignation of the Secretary of the Navy, the incumbents holding the positions designated below, in the order indicated, shall act for and exercise the powers of the Secretary of the Navy:

(1) The Under Secretary of the Navy.

(2) The Assistant Secretaries and General Counsel of the Navy, in the order fixed by their length of services as permanent appointees in such positions.

(3) The Chief of Naval Operations.
(4) The Commandant of the Marine Corps.

(b) In the event of the temporary absence or temporary disability of the Secretary of the Navy, the incumbents holding the Department of the Navy positions designated in paragraph (a) of this section, in the order indicated, shall act for and exercise the powers of the Secretary of the Navy.

(9) Deputy Under Secretary of Defense for Acquisition and Technology.

(10) Deputy Under Secretary of Defense for Policy.
(11) Director of Defense Research and Engineering.

(12) The Assistant Secretaries of Defense, the Director of Operational Test and Evaluation, and the General Counsel of the Department of Defense, in the order fixed by their length of service as permanent appointees in such positions.

(13) Under Secretaries of the Army, the Navy, and the Air Force, in the order fixed by their length of service as permanent appointees in such positions.

(14) Assistant Secretaries of the Army, the Navy, and the Air Force whose appointments are vested in the President, and General Counsels of the Army, the Navy, and the Air Force, in the order fixed by their length of service as permanent appointees in such positions.

(b) In the event of the temporary absence or temporary disability of the Secretary of Defense, the incumbents holding the Department of Defense positions designated in paragraph (a) of this section, in the order indicated, shall act for and exercise the powers of the Secretary of Defense as Acting Secretary of Defense.

(1) In these instances, the designation of an Acting Secretary of Defense applies only for the duration of the Secretary's absence or disability, and does not affect the authority of the Secretary to resume the powers of his office upon his return.

(2) In the event that the Secretary of Defense is temporarily absent from his position, the Secretary may continue to exercise the powers and fulfill the duties of this office during his absence, notwithstanding the provisions of this order.

(c) Precedence among those officers designated in paragraphs (a)(12)–(14) of this section who have the same appointment date shall be determined by the Secretary of Defense at the time that such appointments are made.

(d) Notwithstanding paragraphs (a) and (b) of this section, an officer shall not act for or exercise the powers of the Secretary of Defense under this order if that officer serves only in an acting capacity in the position that would otherwise entitle him to do so.

SEC. 2. Temporary Nature of Succession. Succession to act for and exercise the powers of the Secretary of Defense pursuant to this order shall be on a temporary or interim basis and shall not have the effect of vacating the statutory appointment held by the successor.

SEC. 3. Revocation of Prior Executive Order. Executive Order No. 12787 of December 31, 1991, is hereby revoked.

WILLIAM J. CLINTON. SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 3346, 3347, 3348, 3349, 3349b, 3349C, 33490, 5535 of this title; title 7 section 2211; title 28 section 508.

Ex. ORD. No. 12909. ORDER OF SUCCESSION OF OFFICERS

TO ACT AS SECRETARY OF THE AIR FORCE Ex. Ord. No. 12909, Apr. 22, 1994, 59 F.R. 21909, provided:

By the authority vested in me as President by the Constitution and the laws of the United States of America, including (former] section 3347 of title 5, United States Code, it is hereby ordered as follows:

SECTION 1. Succession To Act as the Secretary of the Air Force.

(a) In the event of the death, permanent disability, or resignation of the Secretary of the Air Force, the incumbents holding the positions designated below, in the order indicated, shall act for and exercise the powers of the Secretary of the Air Force:

(1) The Under Secretary of the Air Force. (2) The Assistant Secretaries and General Counsel of the Air Force, in the order fixed by their length of service as permanent appointees in such positions.

(3) The Chief of Staff of the Air Force. (b) In the event of the absence or temporary disability of the Secretary of the Air Force, the incumbents holding the Department of the Air Force positions designated in paragraph (a) of this section, in the order indicated, shall act for and exercise the powers of the Secretary of the Air Force.

(1) The designation of an Acting Secretary of the Air Force applies only for the duration of the Secretary's absence or disability, and does not affect the authority of the Secretary to resume the powers of the Secretary's office.

(2) In the event that the Secretary of the Air Force is temporarily absent from the position, the Secretary of the Air Force may continue to exercise the powers and fulfill the duties of his office during the absence, notwithstanding the provisions of this order.

(c) Precedence among those officers designated in paragraph (a) of this section who have the same date of appointment shall be determined by the Secretary of the Air Force at the time that such appointments are made.

(d) Notwithstanding paragraphs (a) and (b) of this section, an officer shall not act for or exercise the powers of the Secretary of the Air Force under this order if that officer serves only in an acting capacity in the position that would otherwise entitle him to do so.

SEC. 2. Temporary Nature of Succession. Succession to act for and exercise the powers of the Secretary of the Air Force pursuant to this order shall be on a temporary or interim basis and shall not have the effect of vacating the statutory appointment held by the successor.

WILLIAM J. CLINTON. EX. ORD. NO. 13000. ORDER OF SUCCESSION OF OFFICERS

TO ACT AS SECRETARY OF DEFENSE Ex. Ord. No. 13000, Apr. 24, 1996, 61 F.R. 18483, provided:

By the authority vested in me as President by the Constitution and the laws of the United States of America, including (former] section 3347 of title 5, United States Code, it is hereby ordered as follows:

SECTION 1. Succession to Act as the Secretary of Defense. (a) In the event of the death, permanent disability, or resignation of the Secretary of Defense, the incumbents holding the Department of Defense positions designated below, in the order indicated, shall act for and exercise the powers of the Secretary of Defense as Acting Secretary of Defense: (1) Deputy Secretary of Defense. (2) Secretary of the Army. (3) Secretary of the Navy. (4) Secretary of the Air Force. (5) Under Secretary of Defense for Acquisition and Technology [now Under Secretary of Defense for Acquisition, Technology, and Logistics). (6) Under Secretary of Defense for Policy. (7) Under Secretary of Defense (Comptroller). (8) Under Secretary of Defense for Personnel and

(a) Except in the case of a vacancy caused by sickness, the person serving as an acting officer as described under section 3345 may serve in the office

(1) for no longer than 210 days beginning on the date the vacancy occurs; or

(2) subject to subsection (b), once a first or second nomination for the office is submitted to the Senate, from the date of such nomination for the period that the nomination is pending in the Senate.

(b)(1) If the first nomination for the office is rejected by the Senate, withdrawn, or returned to the President by the Senate, the person may continue to serve as the acting officer for no more than 210 days after the date of such rejection, withdrawal, or return.

(2) Notwithstanding paragraph (1), if a second nomination for the office is submitted to the Senate after the rejection, withdrawal, or return of the first nomination, the person serving as the acting officer may continue to serve

(A) until the second nomination is confirmed; or

(B) for no more than 210 days after the second nomination is rejected, withdrawn, or returned.

(c) If a vacancy occurs during an adjournment of the Congress sine die, the 210-day period under subsection (a) shall begin on the date that the Senate first reconvenes. (Added Pub. L. 105–277, div. C, title I, § 151(b), Oct. 21, 1998, 112 Stat. 2681-612.)

PRIOR PROVISIONS A prior section 3346, Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 426, provided for details to subordinate offices, prior to repeal by Pub. L. 105–277, div. C, title I, § 151(b), (d)(1), Oct. 21, 1998, 112 Stat. 2681-611, 2681–616, effective 30 days after Oct. 21, 1998. See section 3345 of this title.

EFFECTIVE DATE Section effective 30 days after Oct. 21, 1998, and applicable to any office that becomes vacant after such effective date, with certain exceptions, see section 151(a) of Pub. L. 105–277, set out as a note under section 3345 of this title.

SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 3345, 3347, 3348, 3349, 3349a, 3349b, 3349c, 33490, 5535 of this title. $ 3347. Exclusivity

(a) Sections 3345 and 3346 are the exclusive means for temporarily authorizing an acting official to perform the functions and duties of any office of an Executive agency (including the Executive Office of the President, and other than the General Accounting Office) for which appointment is required to be made by the President, by and with the advice and consent of the Senate, unless

(1) a statutory provision expressly

(A) authorizes the President, a court, or the head of an Executive department, to designate an officer or employee to perform the functions and duties of a specified office temporarily in an acting capacity; or

(B) designates an officer or employee to perform the functions and duties of a specified office temporarily in an acting capacity; or

(2) the President makes an appointment to fill a vacancy in such office during the recess of the Senate pursuant to clause 3 of section 2 of article II of the United States Constitution.

(b) Any statutory provision providing general authority to the head of an Executive agency (including the Executive Office of the President, and other than the General Accounting Office) to delegate duties statutorily vested in that agency head to, or to reassign duties among, officers or employees of such Executive agency, is not a statutory provision to which subsection (a)(1) applies. (Added Pub. L. 105–277, div. C, title I, § 151(b), Oct. 21, 1998, 112 Stat. 2681-613; amended Pub. L. 106-31, title V, $ 5011, May 21, 1999, 113 Stat. 112.)

(a) In this section

(1) the term "action" includes any agency action as defined under section 551(13); and

(2) the term “function or duty” means any function or duty of the applicable office that

(A)(i) is established by statute; and

(ii) is required by statute to be performed by the applicable officer (and only that officer); or

(B)(i)(I) is established by regulation; and

(II) is required by such regulation to be performed by the applicable officer (and only that officer); and

(ii) includes a function or duty to which clause (i)(I) and (II) applies, and the applicable regulation is in effect at any time during the 180-day period preceding the date on

which the vacancy occurs. (b) Unless an officer or employee is performing the functions and duties in accordance with sections 3345, 3346, and 3347, if an officer of an Executive agency (including the Executive Office of the President, and other than the General Accounting Office) whose appointment to office is required to be made by the President, by and with the advice and consent of the Senate, dies, resigns, or is otherwise unable to perform the functions and duties of the office

(1) the office shall remain vacant; and

(2) in the case of an office other than the office of the head of an Executive agency (including the Executive Office of the President, and other than the General Accounting Office), only the head of such Executive agency may perform any function or duty of such office.

(c) If the last day of any 210-day period under section 3346 is a day on which the Senate is not in session, the second day the Senate is next in session and receiving nominations shall be deemed to be the last day of such period.

(d)(1) An action taken by any person who is not acting under section 3345, 3346, or 3347, or as provided by subsection (b), in the performance of any function or duty of a vacant office to which this section and sections 3346, 3347, 3349, 3349a,

Page 24

ited physician, the preference eligible is physically able to perform efficiently the duties of

the position. This section does not apply to an appointment required by Congress to be confirmed by, or made with the advice and consent of, the Senate. (Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 427; Pub. L. 94–183, 82(5), Dec. 31, 1975, 89 Stat. 1057; Pub. L. 95–454, title IX, $906(a)(2), (3), Oct. 13, 1978, 92 Stat. 1224.)

HISTORICAL AND REVISION NOTES

(A) any political subdivision, instrumentality, or authority of a State or States as defined in subparagraph (A) of paragraph (1);

(B) any general or special purpose agency of such a political subdivision, instrumentality, or authority; and

(C) any Indian tribe, band, nation, or other organized group or community, including any Alaska Native village as defined in the Alaska Native Claims Settlement Act (85 Stat. 688), which is recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians and includes any tribal organization as defined in section 4 of the Indian Self-Determination and Education Assistance Act;

(3) "Federal agency" means an Executive agency, military department, a court of the United States, the Administrative Office of the United States Courts, the Library of Congress, the Botanic Garden, the Government Printing Office, the Congressional Budget Office, the United States Postal Service, the Postal Rate Commission, the Office of the Architect of the Capitol, the Office of Technology Assessment, and such other similar agencies of the legislative and judicial branches as determined appropriate by the Office of Personnel Management; and (4) “other organization” means

(A) a national, regional, State-wide, areawide, or metropolitan organization representing member State or local governments;

(B) an association of State or local public officials;

(C) a nonprofit organization which has as one of its principal functions the offering of professional advisory, research, educational, or development services, or related services, to governments or universities concerned with public management; or

(D) a federally funded research and devel

opment center. (Added Pub. L. 91-648, title IV, $402(a), Jan. 5, 1971, 84 Stat. 1920; amended Pub. L. 93-638, title I, § 104(a), formerly $105(a), Jan. 4, 1975, 88 Stat. 2208, renumbered § 104(a), Pub. L. 100-472, title II, $ 203(a), Oct. 5, 1988, 102 Stat. 2290; Pub. L. 95–454, title VI, $ 603(a), Oct. 13, 1978, 92 Stat. 1189; Pub. L. 100-472, title II, §203(b), Oct. 5, 1988, 102 Stat. 2290; Pub. L. 101–301, $2(c), May 24, 1990, 104 Stat. 207; Pub. L. 103-337, div. A, title X, 81068(a), Oct. 5, 1994, 108 Stat. 2852.)

REFERENCES IN TEXT The Alaska Native Claims Settlement Act, referred to in par. (2)(C), is Pub. L. 92-203, Dec. 18, 1971, 85 Stat. 688, as amended, which is classified generally to chapter 33 ($ 1601 et seq.) of Title 43, Public Lands. For complete classification of this Act to the Code, see Short Title note set out under section 1601 of Title 43 and Tables.

Section 4 of the Indian Self-Determination and Education Assistance Act, referred to in par. (2)(C), is classified to section 450b of Title 25, Indians.

AMENDMENTS 1994—Par. (4)(D). Pub. L. 103–337 added subpar. (D). 1990—Par. (2)(C). Pub. L. 101-301 substituted "section 4" for "section 4(m)”.

EFFECTIVE DATE OF 1978 AMENDMENT

Amendment by Pub. L. 95 454 effective 90 days after Oct. 13, 1978, see section 907 of Pub. L. 95–454, set out as a note under section 1101 of this title.

SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 2302 of this title; title 22 section 1438.

[$ 3364. Repealed. Pub. L. 94-183, $2(6), Dec. 31,

1975, 89 Stat. 1057] Section, Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 427, related to promotion to regular force of substitute employees in postal field service. SUBCHAPTER VI-ASSIGNMENTS TO AND

FROM STATES

SUBCHAPTER REFERRED TO IN OTHER SECTIONS This subchapter is referred to in title 22 sections 2514, 4081; title 41 section 419; title 42 section 11708.

For the purpose of this subchapter(1) "State” means

(A) a State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the Trust Territory of the Pacific Islands, and a territory or possession of the United States; and

(B) an instrumentality or authority of a State or States as defined in subparagraph (A) of this paragraph (1) and a Federal-State authority or instrumentality; (2) "local government” means

Page 25

visions of this subchapter governing an assign- chapter is deemed, during the assignment, to be ment of an employee of a State or local gov- eitherernment to a Federal agency.

(1) on detail to a regular work assignment in (Added Pub. L. 91-648, title IV, S 402(a), Jan. 5,

his agency; or 1971, 84 Stat. 1921; amended Pub. L. 93–638, title

(2) on leave without pay from his position in

the agency I, $ 104(k), (1), as added Pub. L. 100-472, title II, $203(f), Oct. 5, 1988, 102 at. 2290; Pub. L. 95 454, An employee assigned either on detail or on title VI, $ 603(b), (c), Oct. 13, 1978, 92 Stat. 1190; leave without pay remains an employee of his Pub. L. 98–146, title II, Nov. 4, 1983, 97 Stat. 946; agency. The Federal Tort Claims Act and any Pub. L. 103–89, $3(b)(1)(A), Sept. 30, 1993, 107 Stat. other Federal tort liability statute apply to an 981; Pub. L. 103–337, div. A, title X, 81068(b), Oct. employee so assigned. The supervision of the du5, 1994, 108 Stat. 2852.)

ties of an employee on detail may be governed

by agreement between the Federal agency and AMENDMENTS

the State or local government concerned. 1994—Subsec. (e). Pub. L. 103–337 added subsec. (e).

(b) The assignment of an employee of a Fed1993—Subsec. (d). Pub. L. 103-89 substituted "and ad

eral agency either on detail or on leave without ditional step-increases, as defined in chapter 53" for

pay to a State or local government under this "additional step-increases, merit pay, and cash awards, as defined in chapters 53 and 54".

subchapter may be made with or without reim1988Subsecs. (a), (d). Pub. L. 100–472 added Pub. L.

bursement by the State or local government for 93-638, $ 104(k), (1). See 1975 Amendment note below.

the travel and transportation expenses to or 1983—Subsec. (a). Pub. L. 98–146 inserted sentence pro- from the place of assignment and for the pay, or viding that, in the case of assignments made to Indian supplemental pay, or a part thereof, of the emtribes or tribal organizations as defined in section

ployee during assignment. Any reimbursements 3371(2)(C) of this title, the head of an executive agency

shall be credited to the appropriation of the may extend the period of assignment for any period of time where it is determined that this will continue to

Federal agency used for paying the travel and benefit both the executive agency and the Indian tribe

transportation expenses or pay. or tribal organization.

(c) For any employee so assigned and on leave 1978—Subsec. (a). Pub. L. 95 454, $ 603(b), (c)(1), sub

without paystituted “a Federal" for "an executive" wherever ap- (1) if the rate of pay for his employment by pearing, and in cl. (1) inserted provisions relating to a the State or local government is less than the noncareer appointee, limited term appointee, or lim- rate of pay he would have received had he conited emergency appointee, and an employee excepted tinued in his regular assignment in the agenfrom the competitive service.

cy, he is entitled to receive supplemental pay Subsec. (b). Pub. L. 95–454, $ 603(b), (c)(2)-(4), in cls. (1) and (2) substituted "a Federal” for “an executive”, and

from the agency in an amount equal to the difadded cls. (3) and (4).

ference between the State or local government Subsec. (c). Pub. L. 95–454, $ 603(c)(5), added subsec.

rate and the agency rate; (c).

(2) he is entitled to annual and sick leave to 1975-Subsec. (a). Pub. L. 93–638, $ 104(k), as added by the same extent as if he had continued in his Pub. L. 100_472, inserted at end “If the assigned em- regular assignment in the agency; and ployee fails to complete the period of assignment and

(3) he is entitled, notwithstanding other there is another employee willing and available to do

statutesso, the Secretary may assign the employee to complete

(A) to continuation of his insurance under the period of assignment and may execute an agree

chapter 87 of this title, and coverage under ment with the tribal organization with respect to the replacement employee. That agreement may provide

chapter 89 of this title or other applicable for a different period of assignment as may be agreed to authority, so long as he pays currently into by the Secretary and the tribal organization.”

the Employee's Life Insurance Fund and the Subsec. (d). Pub. L. 93–638, $ 104(1), as added by Pub. L. Employee's Health Benefits Fund or other 100-472, added subsec. (d).

applicable health benefits system (through EFFECTIVE DATE OF 1993 AMENDMENT

his employing agency) the amount of the

employee contributions; Section 3(c) of Pub. L. 103–89 provided that: “The amendments made by this section (amending this sec

(B) to credit the period of his assignment tion and sections 4501, 4502, 5302, 5332, 5334 to 5336, 5361

under this subchapter toward periodic stepto 5363, 5948, and 8473 of this title, sections 1602, 1732,

increases, retention, and leave accrual purand 1733 of Title 10, Armed Forces, and section 731 of poses, and, on payment into the Civil ServTitle 31, Money and Finance, repealing sections 4302a ice Retirement and Disability Fund or other and 5401 to 5410 of this title, and amending provisions applicable retirement system of the percentset out as a note under section 5304 of this title] shall

age of his State or local government pay, take effect as of November 1, 1993."

and of his supplemental pay, if any, that EFFECTIVE DATE OF 1978 AMENDMENT

would have been deducted from a like agenAmendment by Pub. L. 95–454 effective 90 days after

cy pay for the period of the assignment and Oct. 13, 1978, see section 907 of Pub. L. 95–454, set out as

payment by the Federal agency into the a note under section 1101 of this title.

fund or system of the amount that would

have been payable by the agency during the SECTION REFERRED TO IN OTHER SECTIONS

period of the assignment with respect to a This section is referred to in title 16 sections la-2,

like agency pay, to treat his service during 471j; title 25 section 450i.

that period as service of the type performed $ 3373. Assignment of employees to State or local in the agency immediately before his assign

ment; and governments

(C) for the purpose of subchapter I of chap(a) An employee of a Federal agency assigned

ter 85 of this title, to credit the service perto a State or local government under this sub- formed during the period of his assignment

Page 26

through 412 of Pub. L. 95 454, see section 415(a)(1), (b) of

REFERENCES IN TEXT Pub. L. 95–454, set out as an Effective Date note under section 3131 of this title.

The Executive Schedule, referred to in subsec. (c), is

set out as section 5311 et seq. of this title. $ 3392. General appointment provisions

PRIOR PROVISIONS (a) Qualification standards shall be established

A prior section 3392, added Pub. L. 95–437, $3(a), Oct. by the head of each agency for each Senior Exec- 10, 1978, 92 Stat. 1056, which related to the establishutive Service position in the agency,

ment of part-time career employment programs, was (1) in accordance with requirements estab- renumbered as section 3402 of this title by Pub. L. lished by the Office of Personnel Management,

95–454, title IX, 8 906(c)(1)(B), Oct. 13, 1978, 92 Stat. 1226. with respect to standards for career reserved

AMENDMENTS positions, and (2) after consultation with the Office, with

1990_Subsec. (c). Pub. L. 101-335 designated existing respect to standards for general positions.

provisions as par. (1), redesignated former pars. (1) and

(2) as subpars. (A) and (B), respectively, and added par. (b) Not more than 30 percent of the Senior Ex- (2). ecutive Service positions authorized under sec

EFFECTIVE DATE OF 1990 AMENDMENT tion 3133 of this title may at any time be filled by individuals who did not have 5 years of cur

Section 7(b)(1) of Pub. L. 101-335 provided that: “The rent continuous service in the civil service im

amendments made by this section (amending this secmediately preceding their initial appointment

tion) shall take effect on the date of enactment of this

Act [July 17, 1990].” to the Senior Executive Service, unless the President certifies to the Congress that the lim

ELECTION BY PERSONS PREVIOUSLY APPOINTED; itation would hinder the efficiency of the Gov

RETROACTIVE PERFORMANCE AWARDS ernment. In applying the preceding sentence, Section 7(b)(2), (3) of Pub. L. 101-335, as amended by any break in service of 3 days or less shall be Pub. L. 102–378, 87(a), Oct. 2, 1992, 106 Stat. 1359, prodisregarded.

vided that: (c)(1) If a career appointee is appointed by the

“(2) ELECTION BY PERSONS PREVIOUSLY APPOINTED.President, by and with the advice and consent of

The Office of Personnel Management shall. prescribe the Senate, to a civilian position in the execu

regulations (including procedures and deadlines) under tive branch which is not in the Senior Executive

which an election under section 3392(c)(2) of title 5,

United States Code (as amended by this section) may Service, and the rate of basic pay payable for

be made by any individual who which is equal to or greater than the rate pay- “(A) on the date of enactment of this Act (July 17, able for level V of the Executive Schedule, the 1990], is serving in a civilian position in the executive career appointee may elect (at such time and in branch whichsuch manner as the Office may prescribe) to con

"(i) is not in the Senior Executive Service; and tinue to have the provisions of this title relating

"(ii) satisfies section 3392(c)(2)(B) of such title 5 to basic pay, performance awards, awarding of

(as so amended); ranks, severance pay, leave, and retirement

“(B) was appointed to that position on or after No

vember 1, 1986, and has served continuously in such apply as if the career appointee remained in the

position since then; Senior Executive Service position from which he

“(C) was a career appointee (within the meaning of was appointed. Such provisions shall apply in section 3132(a)(4) of such title 5) immediately before lieu of the provisions which would otherwise having been so appointed; and apply

“(D) was not, based on such individual's appoint(A) to the extent provided under regulations

ment to the position described in subparagraph (A), prescribed by the Office, and

eligible to make an election under section 3392(c) of

such title 5 (as then in effect). (B) so long as the appointee continues to

An election under this paragraph shall be effective as serve under such Presidential appointment.

of the date of appointment to the position described in (2) An election under paragraph (1) may also

subparagraph (A). be made by any career appointee who is ap

“(3) RETROACTIVE PERFORMANCE AWARDS.-If an indi

vidual elects under paragraph (2) to continue to be subpointed to a civilian position in the executive

ject to performance awards, the head of the agency in branch

which such individual is serving shall determine wheth(A) which is not in the Senior Executive

er to grant retroactive performance awards for any fisService; and

cal years prior to fiscal year 1991 to such individual, (B) which is covered by the Executive Sched- and the amount of any such awards, without regard to ule, or the rate of basic pay for which is fixed the provisions of subsection (b) of section 5383 of title by statute at a rate equal to 1 of the levels of

5, United States Code, and subsections (b) and (c) of the Executive Schedule.

section 5384 of such title. Before granting an award, the

head of the agency shall make a written determination An election under this paragraph shall remain that the individual's performance during the fiscal year effective so long as the appointee continues to for which the award is given was at least fully successserve in the same position.

ful, and shall consider the recommendation of the agen(d) Appointment or removal of a person to or

cy's performance review board with respect to the

award. No such award for performance during any fiscal from any Senior Executive Service position in

year may be less than 5 percent nor more than 15 per, an independent regulatory commission shall not

cent of the individual's rate of basic pay as of the end be subject, directly or indirectly, to review or

of such fiscal year.” approval by any officer or entity within the Ex

[Pub. L, 102–378, $7(b), Oct. 2, 1992, 106 Stat. 1359, proecutive Office of the President.

vided that: “The amendment made by subsection (a)

[enacting section 7(b)(3) of Pub. L. 101-335, set out (Added Pub. L. 95–454, title IV, $ 403(a), Oct. 13,

above) shall be effective as if enacted as a part of sec1978, 92 Stat. 1161; amended Pub. L. 101–335, $ 7(a),

tion 7 of the Thrift Savings Plan Technical AmendJuly 17, 1990, 104 Stat. 325.)

ments Act of 1990 [Pub. L. 101–335]."']