5 U.S.C. § 5317 — Presidential authority to place positions

Page 583 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 5317 1453a of Title 43 and section 5315(18) of this title, see note set out under section 1453a of Title 43, Public Lands. 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 pre- ceding section 101 of Title 39, Postal Service. EFFECTIVE DATE OF 1968 AMENDMENTS Amendment by Pub. L. 90–623 intended to restate without substantive change the law in effect on Oct. 22, 1968, see section 6 of Pub. L. 90–623, set out as a note under section 5334 of this title. Amendment by Pub. L. 90–407 effective on first day of first calendar month which begins on or after July 18, 1968, see section 15(a)(4) of Pub. L. 90–407, set out as a note under section 5313 of this title. EFFECTIVE DATE OF 1967 AMENDMENT Amendment by Pub. L. 90–206 effective as of begin- ning of first pay period which begins on or after Dec. 16, 1967, see section 220(a)(3) of Pub. L. 90–206, set out as a note under section 603 of Title 28, Judiciary and Judi- cial Procedure. EFFECTIVE DATE OF 1966 AMENDMENT Amendment by Pub. L. 89–670 effective Apr. 1, 1967, as prescribed by President and published in Federal Reg- ister, see section 16(a), formerly § 15(a), of Pub. L. 89–670 and Ex. Ord. No. 11340, Mar. 30, 1967, 32 F.R. 5453. INDIAN CLAIMS COMMISSION Indian Claims Commission terminated on Sept. 30, 1978, pursuant to Pub. L. 94–465, § 2, Oct. 8, 1976, 90 Stat. 1990. COMMISSIONER OF PATENTS Commissioner of Patents redesignated Commissioner of Patents and Trademarks by Pub. L. 93–596, § 3, Jan. 2, 1975, 88 Stat. 1949, set out as a note under section 1 of Title 35, Patents. ADMINISTRATOR OF BONNEVILLE POWER ADMINISTRATION Bonneville Power Administration transferred to De- partment of Energy by section 7152 of Title 42, The Public Health and Welfare. GENERAL COUNSEL OF MILITARY DEPARTMENTS Pub. L. 100–456, div. A, title VII, § 703(b), Sept. 29, 1988, 102 Stat. 1996, which provided that, notwithstanding this section, the General Counsel of each of the mili- tary departments was to be paid at the highest rate of basic pay payable under section 5382 of this title, to a member of the Senior Executive Service, was repealed by Pub. L. 102–190, div. A, title IX, § 903(b), Dec. 5, 1991, 105 Stat. 1451. COMPENSATION OF DEPUTY ASSISTANT SECRETARY OF COMMERCE FOR COMMUNICATIONS AND INFORMATION Pub. L. 95–567, title I, § 106(c), Nov. 2, 1978, 92 Stat. 2409, provided that: ‘‘The position of Deputy Assistant Secretary of Commerce for Communications and Infor- mation, established in Department of Commerce Orga- nization Order Numbered 10–10 (effective March 26, 1978), shall be compensated at the rate of pay in effect from time to time for level V of the Executive Schedule under section 5316 of title 5, United States Code.’’ SUBVERSIVE ACTIVITIES CONTROL BOARD Subversive Activities Control Board, Chairman and Members of which were compensated under this sec- tion, ceased operation on June 3, 1973, as unfunded by Congress. SALARY INCREASES For adjustment of salaries under this section, see the executive order detailing the adjustment of certain rates of pay set out as a note under section 5332 of this title. For prior year salary increases per the recommenda- tion of the President, see Prior Salary Recommenda- tions notes under section 358 of Title 2, The Congress. For miscellaneous provisions dealing with adjust- ments of pay and limitations on use of funds to pay sal- aries in prior years, see notes under section 5318 of this title. Executive Documents TRANSFER OF FUNCTIONS Office of Emergency Preparedness, including offices of Director, Deputy Director, Assistant Directors, and Regional Directors, abolished and functions vested by law in Office of Emergency Preparedness or Director of Office of Emergency Preparedness transferred to Presi- dent by sections 1 and 3(a)(1) of 1973 Reorg. Plan No. 1, set out in the Appendix to this title. Environmental Science Services Administration in Department of Commerce, including offices of Adminis- trator and Deputy Administrator thereof, abolished by Reorg. Plan No. 4 of 1970, eff. Oct. 3, 1970, 35 F.R. 15627, 84 Stat. 2090, set out in the Appendix to this title, which created National Oceanic and Atmospheric Ad- ministration in Department of Commerce and trans- ferred personnel, property, records, and unexpended balances of funds of Environmental Science Services Administration to such newly created National Oceanic and Atmospheric Administration. Components of Envi- ronmental Science Services Administration thus trans- ferred included Weather Bureau [now National Weather Service], Coast and Geodetic Survey [now National Ocean Survey], Environmental Data Service, National Environmental Satellite Center, and ESSA Research Laboratories. Bureau of Narcotics and Dangerous Drugs, including office of Director thereof, in Department of Justice abolished by 1973 Reorg. Plan No. 2, eff. July 1, 1973, 38 F.R. 15932, 87 Stat. 1091, set out in the Appendix to this title, 1973 Reorg. Plan No. 2 also created in Department of Justice an agency to be known as Drug Enforcement Administration, with an Administrator and Deputy Ad- ministrator appointed by President with advice and consent of Senate. § 5317. Presidential authority to place positions at levels IV and V In addition to the positions listed in sections 5315 and 5316 of this title, the President, from time to time, may place in levels IV and V of the Executive Schedule positions held by not to exceed 34 individuals when he considers that ac- tion necessary to reflect changes in organiza- tion, management responsibilities, or workload in an Executive agency. Such an action with re- spect to a position to which appointment is made by the President by and with the advice and consent of the Senate is effective only at the time of a new appointment to the position. Notice of each action taken under this section shall be published in the Federal Register, ex- cept when the President determines that the publication would be contrary to the interest of national security. The President may not take action under this section with respect to a posi- tion the pay for which is fixed at a specific rate by this subchapter or by statute enacted after August 14, 1964. (Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 467; Pub. L. 89–670, § 10(d)(6), Oct. 15, 1966, 80 Stat. 948; Pub. L. 90–83, § 1(17), Sept. 11, 1967, 81 Stat. 199.) Page 584 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 5317 HISTORICAL AND REVISION NOTES 1966 ACT Derivation U.S. Code Revised Statutes and Statutes at Large .................. 5 U.S.C. 2211(f). Aug. 14, 1964, Pub. L. 88–426, § 303(f), 78 Stat. 421. The word ‘‘offices’’ is omitted as included in ‘‘posi- tions’’. The term ‘‘Executive agency’’ is substituted for ‘‘Federal department or agency’’ in view of the defini- tion in section 105. The words ‘‘after August 14, 1964’’ are substituted for ‘‘subsequent to the date of enact- ment of this Act’’. Standard changes are made to conform with the defi- nitions applicable and the style of this title as outlined in the preface to the report. 1967 ACT The amendment to 5 U.S.C. 5317 conforms to the style of title 5. Editorial Notes AMENDMENTS 1966—Pub. L. 89–670 increased from thirty to thirty- four the number of additional level IV and V positions authorized when necessary. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1966 AMENDMENT Amendment by Pub. L. 89–670 effective Apr. 1, 1967, as prescribed by President and published in Federal Reg- ister, see section 16(a), formerly § 15(a), of Pub. L. 89–670 and Ex. Ord. No. 11340, Mar. 30, 1967, 32 F.R. 5453. Executive Documents EXECUTIVE ORDER NO. 11189 Ex. Ord. No. 11189, Nov. 23, 1964, 29 F.R. 15855, which placed certain positions in levels IV and V of the Exec- utive Schedule, was revoked by Ex. Ord. No. 12060, May 15, 1978, 43 F.R. 21315. EXECUTIVE ORDER NO. 11195 Ex. Ord. No. 11195, Jan. 30, 1965, 30 F.R. 1169, which placed certain positions in levels IV and V of the Exec- utive Schedule, was revoked by Ex. Ord. No. 12060, May 15, 1978, 43 F.R. 21315. EXECUTIVE ORDER NO. 11861 Ex. Ord. 11861, May 21, 1975, 40 F.R. 22531, as amended by Ex. Ord. No. 11864, June 13, 1975, 40 F.R. 25579; Ex. Ord. No. 11872, July 21, 1975, 40 F.R. 30619; Ex. Ord. No. 11877, Sept. 2, 1975, 40 F.R. 40797; Ex. Ord. No. 11885, Oct. 15, 1975, 40 F.R. 48491; Ex. Ord. No. 11893, Dec. 31, 1975, 41 F.R. 1040; Ex. Ord. No. 11898, Jan. 14, 1976, 41 F.R. 2365; Ex. Ord. No. 11908, Mar. 18, 1976, 41 F.R. 11805; Ex. Ord. No. 11927, July 22, 1976, 41 F.R. 30583; Ex. Ord. No. 11976, Mar. 11, 1977, 42 F.R. 14081; Ex. Ord. No. 11983, May 4, 1977, 42 F.R. 23127; Ex. Ord. No. 11986, May 20, 1977, 42 F.R. 26407; Ex. Ord. No. 11995, June 8, 1977, 42 F.R. 29841; Ex. Ord. No. 11999, June 27, 1977, 42 F.R. 33255; Ex. Ord. No. 12025, Dec. 1, 1977, 42 F.R. 61447; Ex. Ord. No. 12035, Jan. 20, 1978, 43 F.R. 3073; Ex. Ord. No. 12060, May 15, 1978, 43 F.R. 21315; Ex. Ord. No. 12069, June 30, 1978, 43 F.R. 28973, which related to the placement of certain positions in levels IV and V, was revoked by Ex. Ord. No. 12076, Aug. 18, 1978, 43 F.R. 37161, formerly set out below. EXECUTIVE ORDER NO. 11864 Ex. Ord. No. 11864, June 13, 1975, 40 F.R. 25579, which placed the position of Adviser to the Secretary (Coun- selor, Economic Policy Board), Department of the Treasury, to terminate effective August 1, 1975, in level IV of the Executive Schedule was superseded by Ex. Ord. No. 11877, Sept. 2, 1975, 40 F.R. 40797. EXECUTIVE ORDER NO. 11995 Ex. Ord. No. 11995, June 8, 1977, 42 F.R. 29841, which placed the position of Executive Director, Federal Per- sonnel Management Systems Study, United States Civil Service Commission, in level V of the Executive Schedule, was revoked by Ex. Ord. No. 12060, May 15, 1978, 43 F.R. 21315. EXECUTIVE ORDER NO. 12076 Ex. Ord. No. 12076, Aug. 18, 1978, 43 F.R. 37161, as amended by Ex. Ord. No. 12099, Nov. 17, 1978, 43 F.R. 54191; Ex. Ord. No. 12111, Jan. 2, 1979, 44 F.R. 1071; Ex. Ord. No. 12119, Feb. 14, 1979, 44 F.R. 10039, which related to the placement of positions in levels IV and V of the Federal Executive Salary Schedule, was revoked by Ex. Ord. No. 12154, Sept. 4, 1979, 44 F.R. 51965, set out below. EX. ORD. NO. 12154. PLACEMENT OF POSITIONS IN LEVELS IV AND V Ex. Ord. No. 12154, Sept. 4, 1979, 44 F.R. 51965, as amended by Ex. Ord. No. 12199, Mar. 12, 1980, 45 F.R. 16441; Ex. Ord. No. 12236, Sept. 3, 1980, 45 F.R. 58805; Ex. Ord. No. 12237, Sept. 3, 1980, 45 F.R. 58807; Ex. Ord. No. 12422, May 20, 1983, 48 F.R. 23157; Ex. Ord. No. 12431, July 8, 1983, 48 F.R. 31849; Ex. Ord. No. 12608, Sept. 9, 1987, 52 F.R. 34617; Ex. Ord. No. 12678, Apr. 28, 1989, 54 F.R. 18872; Ex. Ord. No. 12679, June 23, 1989, 54 F.R. 27149; Ex. Ord. No. 12749, Feb. 4, 1991, 56 F.R. 4711; Ex. Ord. No. 12758, Apr. 5, 1991, 56 F.R. 14631; Ex. Ord. No. 12814, Sept. 10, 1992, 57 F.R. 42483; Ex. Ord. No. 12833, Jan. 19, 1993, 58 F.R. 5907; Ex. Ord. No. 12841, Mar. 9, 1993, 58 F.R. 13529; Ex. Ord. No. 12942, Dec. 12, 1994, 59 F.R. 64551; Ex. Ord. No. 13063, Sept. 30, 1997, 62 F.R. 51757, provided: By the authority vested in me as President by Sec- tion 5317 of Title 5 of the United States Code it is here- by ordered as follows: 1–1. EXECUTIVE SCHEDULE POSITIONS 1–101. The following positions are placed in level IV of the Executive Schedule: (a) Counselor to the Secretary, Department of the Treasury. (b) Deputy Under Secretary for International Labor Affairs, Department of Labor. (c) Administrator, Alcohol, Drug Abuse and Mental Health Administration, Department of Health and Human Services. (d) Executive Secretary of the National Security Council. (e) Administrator, Office of Juvenile Justice and De- linquency Prevention, Department of Justice. (f) Comptroller of the Department of Defense [now Under Secretary of Defense (Comptroller)]. (g) Assistant Secretary of the Air Force (1). (h) Director, Office for Victims of Crime, Department of Justice. (i) Director, Bureau of Justice Assistance, Depart- ment of Justice. (j) Director of the National Institutes of Health. (k) Members, Chemical Safety and Hazard Investiga- tion Board (5). (k)[(l)] Commissioner on Aging [now Assistant Sec- retary for Aging], Department of Health and Human Services[.] 1–102. The following positions are placed in level V of the Executive Schedule: (a) Deputy Assistant Secretary of Defense for Reserve Affairs, Department of Defense. (b) Executive Assistant and Counselor to the Sec- retary of Labor, Department of Labor. (c) Deputy Under Secretary for Education, Depart- ment of Education. (d) Deputy Under Secretary for Education, Depart- ment of Education. (e) Commissioner, Administration for Native Americans[.] Page 585 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 5318 1–2. GENERAL PROVISIONS 1–201. Nothing in this Order shall be deemed to termi- nate or otherwise affect the appointment, or to require the reappointment, of any occupant of any position listed in Section 1–1 of this Order who was the occupant of that position immediately prior to the issuance of this Order. 1–202. Executive Order No. 12076, as amended, is here- by revoked. § 5318. Adjustments in rates of pay (a) Subject to subsection (b), effective at the beginning of the first applicable pay period com- mencing on or after the first day of the month in which an adjustment takes effect under sec- tion 5303 of this title in the rates of pay under the General Schedule, the annual rate of pay for positions at each level of the Executive Sched- ule shall be adjusted by an amount, rounded to the nearest multiple of $100 (or if midway be- tween multiples of $100, to the next higher mul- tiple of $100), equal to the percentage of such an- nual rate of pay which corresponds to the most recent percentage change in the ECI (relative to the date described in the next sentence), as de- termined under section 704(a)(1) of the Ethics Reform Act of 1989. The appropriate date under this sentence is the first day of the fiscal year in which such adjustment in the rates of pay under the General Schedule takes effect. (b) In no event shall the percentage adjust- ment taking effect under subsection (a) in any calendar year (before rounding), in any rate of pay, exceed the percentage adjustment taking effect in such calendar year under section 5303 in the rates of pay under the General Schedule. (Added Pub. L. 94–82, title II, § 202(a), Aug. 9, 1975, 89 Stat. 419; amended Pub. L. 101–194, title VII, § 704(a)(2)(A), Nov. 30, 1989, 103 Stat. 1769; Pub. L. 101–509, title V, § 529 [title I, § 101(b)(4)(A)], Nov. 5, 1990, 104 Stat. 1427, 1439; Pub. L. 103–356, title I, § 101(3), Oct. 13, 1994, 108 Stat. 3411.) Editorial Notes REFERENCES IN TEXT The General Schedule, referred to in text, is set out under section 5332 of this title. Section 704(a)(1) of the Ethics Reform Act of 1989, re- ferred to in subsec. (a), is section 704(a)(1) of Pub. L. 101–194, which is set out below. AMENDMENTS 1994—Pub. L. 103–356 designated existing provisions as subsec. (a), substituted ‘‘Subject to subsection (b), ef- fective’’ for ‘‘Effective’’, and added subsec. (b). 1990—Pub. L. 101–509 substituted ‘‘5303’’ for ‘‘5305’’. 1989—Pub. L. 101–194 substituted ‘‘corresponds to the most recent percentage change in the ECI (relative to the date described in the next sentence), as determined under section 704(a)(1) of the Ethics Reform Act of 1989. The appropriate date under this sentence is the first day of the fiscal year in which such adjustment in the rates of pay under the General Schedule takes effect’’ for ‘‘corresponds to the overall average percentage (as set forth in the report transmitted to the Congress under such section 5305) of the adjustment in the rates of pay under the General Schedule’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1994 AMENDMENT Pub. L. 103–356, title I, § 101, Oct. 13, 1994, 108 Stat. 3410, provided that the amendment made by that sec- tion is effective as of Dec. 31, 1994. 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, § 305] of Pub. L. 101–509, set out as a note under section 5301 of this title. EFFECTIVE DATE OF 1989 AMENDMENT Pub. L. 101–194, title VII, § 704(b), Nov. 30, 1989, 103 Stat. 1769, provided that: ‘‘This section and the amend- ments made by this section [amending this section, section 4501 of Title 2, The Congress, section 104 of Title 3, The President, and section 461 of Title 28, Judiciary and Judicial Procedure, and enacting provisions set out as a note under this section] shall take effect on Janu- ary 1, 1991.’’ SALARY LEVELS OF SENIOR GOVERNMENT OFFICIALS Pub. L. 102–90, title I, § 6(a), Aug. 14, 1991, 105 Stat. 450, provided that: ‘‘The rate of pay for the offices referred to under section 703(a)(2)(B) of the Ethics Reform Act of 1989 [Pub. L. 101–194] (5 U.S.C. 5318 note) shall be the rate of pay that would be payable for each such office if the provisions of sections 703(a)(2)(B) and 1101(a)(1)(A) of such Act (5 U.S.C. 5318 note and 5305 note) had not been enacted.’’ Pub. L. 101–194, title VII, § 703, Nov. 30, 1989, 103 Stat. 1768, provided that: ‘‘(a) SALARY LEVELS.— ‘‘(1) EXECUTIVE POSITIONS.—Effective the first day of the first applicable pay period that begins on or after January 1, 1991, the rate of basic pay for posi- tions in the Executive Schedule shall be increased in the amount of 25 percent of their respective rates (as last in effect before the increase), rounded to the nearest multiple of $100 (or, if midway between mul- tiples of $100, to the next higher multiple of $100). ‘‘(2) LEGISLATIVE POSITIONS; OFFICE OF THE VICE PRESIDENT.— ‘‘(A) GENERALLY.—Effective the first day of the first applicable pay period that begins on or after January 1, 1991, the rate of basic pay for the offices and positions under subparagraphs (A) and (B) of section 225(f) of the Federal Salary Act of 1967 (2 U.S.C. 356(A) and (B)) shall be increased in the amount of 25 percent of their respective rates (as last in effect before the increase), rounded to the nearest multiple of $100 (or, if midway between multiples of $100, to the next higher multiple of $100), except as provided in subparagraph (B). ‘‘(B) EXCEPTIONS.—Nothing in subparagraph (A) shall affect the rate of basic pay for a Senator, the President pro tempore of the Senate, or the major- ity leader or the minority leader of the Senate. ‘‘(3) JUDICIAL POSITIONS.—Effective the first day of the first applicable pay period that begins on or after January 1, 1991, the rate of basic pay for the Chief Justice of the United States, an associate justice of the Supreme Court of the United States, a judge of a United States circuit court, a judge of a district court of the United States, and a judge of the United States Court of International Trade shall be in- creased in the amount of 25 percent of their respec- tive rates (as last in effect before the increase), rounded to the nearest multiple of $100 (or, if midway between multiples of $100, to the next higher multiple of $100). ‘‘(b) COORDINATION RULE.—If a pay adjustment under subsection (a) is to be made for an office or position as of the same date as any other pay adjustment affecting such office or position, the adjustment under sub- section (a) shall be made first.’’ REVISION IN METHOD BY WHICH ANNUAL PAY ADJUST- MENTS FOR CERTAIN EXECUTIVE, LEGISLATIVE, AND JUDICIAL POSITIONS ARE TO BE MADE Pub. L. 101–194, title VII, § 704(a), Nov. 30, 1989, 103 Stat. 1769, provided that: ‘‘(a) PERCENT CHANGE IN THE EMPLOYMENT COST INDEX.—