5 U.S.C. § 5342 — Definitions; application

Page 601 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 5342 1 So in original. The word ‘‘or’’ probably should not appear. 2 So in original. Subsec. (a)(1) does not contain a subpar. (I). 220; Pub. L. 90–560, § 4, Oct. 12, 1968, 82 Stat. 997, pro- vided prevailing rate system for trades and crafts and is covered by sections 5343(c), (d) and 5349(a) of this title. Statutory Notes and Related Subsidiaries EFFECTIVE DATE Pub. L. 92–392, § 15(a), Aug. 19, 1972, 86 Stat. 575, pro- vided that: ‘‘The provisions of this Act [enacting this subchapter and section 5550 of this title, amending sec- tions 2105, 5337, 5541, 5544, 5548, 6101, 7154, and 8704 of this title, repealing section 6102 of this title, and enact- ing provisions set out as notes under sections 5341 and 5343 of this title and sections 4531 and 4571 of Title 2, The Congress] are effective on the first day of the first applicable pay period which begins on or after the nine- tieth day after the date of enactment of this Act [Aug. 19, 1972], except that, in the case of those employees re- ferred to in section 5342(a)(2)(B) and (C) of title 5, United States Code (as amended by the first section of this Act), such provisions are effective on the first day of the first applicable pay period which begins on or after the one hundred and eightieth day after such date of enactment or on such earlier date (not earlier than the ninetieth day after such date of enactment) as the Civil Service Commission may prescribe. Notwith- standing the provisions of this subsection, section 5343(e)(1)(D) and (E) and (e)(2)(C), as enacted by the first section of this Act, shall not be effective until the first day of the first pay period commencing after (1) the date on which the President ceases to exercise his authority under the Economic Stabilization Act of 1970 [formerly set out as a note under section 1904 of Title 12, Banks and Banking] to stabilize wages and salaries, or (2) April 30, 1973, whichever occurs first.’’ REPEALS Pub. L. 92–392, § 13, Aug. 19, 1972, 86 Stat. 575, provided that: ‘‘(a) All laws or parts of laws inconsistent with this Act [see Effective Date note above] are hereby repealed to the extent of such inconsistency. ‘‘(b) Subsection (a) of this section does not repeal or otherwise affect section 5102(d) of title 5, United States Code, section 305 of title 44 of such Code, or the provi- sions contained in section 180 of former title 31, United States Code.’’ § 5342. Definitions; application (a) For the purpose of this subchapter— (1) ‘‘agency’’ means an Executive agency; but does not include— (A) a Government controlled corporation; (B) the Tennessee Valley Authority; (C) the Virgin Islands Corporation; (D) the Atomic Energy Commission; (E) the Central Intelligence Agency; (F) the National Security Agency, Depart- ment of Defense; (G) the Bureau of Engraving and Printing, except for the purposes of section 5349 of this title; (H) the Government Accountability Office; or 1 (J) 2 the Defense Intelligence Agency, De- partment of Defense; or (K) the National Geospatial-Intelligence Agency, Department of Defense; (2) ‘‘prevailing rate employee’’ means— (A) an individual employed in or under an agency in a recognized trade or craft, or other skilled mechanical craft, or in an un- skilled, semiskilled, or skilled manual labor occupation, and any other individual, in- cluding a foreman and a supervisor, in a po- sition having trade, craft, or laboring experi- ence and knowledge as the paramount re- quirement; (B) an employee of a nonappropriated fund instrumentality described by section 2105(c) of this title who is employed in a recognized trade or craft, or other skilled mechanical craft, or in an unskilled, semiskilled, or skilled manual labor occupation, and any other individual, including a foreman and a supervisor, in a position having trade, craft, or laboring experience and knowledge as the paramount requirement; and (C) an employee of the Veterans’ Canteen Service, Department of Veterans Affairs, ex- cepted from chapter 51 of this title by sec- tion 5102(c)(14) of this title who is employed in a recognized trade or craft, or other skilled mechanical craft, or in an unskilled, semiskilled, or skilled manual labor occupa- tion, and any other individual, including a foreman and a supervisor, in a position hav- ing trade, craft, or labor experience and knowledge as the paramount requirement; and (3) ‘‘position’’ means the work, consisting of duties and responsibilities, assignable to a pre- vailing rate employee. (b)(1) Except as provided by paragraphs (2) and (3) of this subsection, this subchapter applies to all prevailing rate employees and positions in or under an agency. (2) This subchapter does not apply to employ- ees and positions described by section 5102(c) of this title other than by— (A) paragraph (7) of that section to the ex- tent that such paragraph (7) applies to em- ployees and positions other than employees and positions of the Bureau of Engraving and Printing; and (B) paragraph (14) of that section. (3) This subchapter, except section 5348, does not apply to officers and members of crews of vessels excepted from chapter 51 of this title by section 5102(c)(8) of this title. (c) Each prevailing rate employee employed within any of the several States or the District of Columbia shall be a United States citizen or a bona fide resident of one of the several States or the District of Columbia unless the Secretary of Labor certifies that no United States citizen or bona fide resident of one of the several States or the District of Columbia is available to fill the particular position. (Added Pub. L. 92–392, § 1(a), Aug. 19, 1972, 86 Stat. 564; amended Pub. L. 96–70, title III, § 3302(e)(1), Sept. 27, 1979, 93 Stat. 498; Pub. L. 96–191, § 8(d), Feb. 15, 1980, 94 Stat. 33; Pub. L. 97–468, title VI, § 615(b)(1)(D), Jan. 14, 1983, 96 Stat. 2578; Pub. L. 98–618, title V, § 502(b), Nov. 8, 1984, 98 Stat. 3303; Pub. L. 102–54, § 13(b)(1), June 13, 1991, 105 Stat. 274; Pub. L. 103–359, title V, § 501(h), Oct. 14, 1994, 108 Stat. 3429; Pub. L. 104–201, div. A, title XI, § 1122(a)(1), div. C, title XXXV, § 3548(a)(3)(A), Sept. 23, 1996, 110 Stat. Page 602 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 5343 2687, 2868; Pub. L. 108–271, § 8(b), July 7, 2004, 118 Stat. 814; Pub. L. 110–417, [div. A], title IX, § 931(a)(1), Oct. 14, 2008, 122 Stat. 4575.) Editorial Notes PRIOR PROVISIONS A prior section 5342, Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 471, provided for crews of vessels. Provisions similar to those comprising subsec. (b) of this section were contained in Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 471 (formerly classified to section 5342 of this title) prior to the general amendment of this sub- chapter by section 1(a) of Pub. L. 92–392. AMENDMENTS 2008—Subsec. (a)(1)(K). Pub. L. 110–417 substituted ‘‘National Geospatial-Intelligence Agency’’ for ‘‘Na- tional Imagery and Mapping Agency’’. 2004—Subsec. (a)(1)(H). Pub. L. 108–271 substituted ‘‘Government Accountability Office’’ for ‘‘General Ac- counting Office’’. 1996—Subsec. (a)(1). Pub. L. 104–201, § 3548(a)(3)(A), which directed amendment of subsec. (a)(1) by striking subpar. (G) and redesignating subpars. (H), (I), (J), (K), and (L) as (G), (H), (I), (J), and (K), respectively, was executed by striking subpar. (F), relating to the Pan- ama Canal Commission, and redesignating subpars. (G), (H), (I), (K), and (L) as (F), (G), (H), (J), and (K), respec- tively, to reflect the probable intent of Congress, be- cause subsec. (a)(1) does not contain a subpar. (J) and the amendments were included in a series of con- forming amendments relating to the Panama Canal. Subsec. (a)(1)(L). Pub. L. 104–201, § 1122(a)(1), sub- stituted ‘‘National Imagery and Mapping Agency’’ for ‘‘Central Imagery Office’’. 1994—Subsec. (a)(1)(J) to (L). Pub. L. 103–359 directed the amendment of subpar. (J) by striking out ‘‘or’’ at end which could not be executed because par. (1) does not contain a subpar. (J), added ‘‘or’’ at end of subpar. (K), and added subpar. (L). 1991—Subsec. (a)(2)(C). Pub. L. 102–54 substituted ‘‘De- partment of Veterans Affairs’’ for ‘‘Veterans’ Adminis- tration’’. 1984—Subsec. (a)(1)(I) to (K). Pub. L. 98–618 struck out ‘‘or’’ at end of subpar. (I), inserted ‘‘or’’ at end of sub- par. (J), and added subpar. (K). 1983—Subsec. (a)(1)(C) to (J). Pub. L. 97–468, eff. Jan. 5, 1985, struck out subpar. (C) which excluded the Alas- ka Railroad and redesignated subpars. (D) to (J) as (C) to (I), respectively. See Effective Date of 1983 Amend- ment note below. 1980—Subsec. (a)(1)(J). Pub. L. 96–191 added subpar. (J). 1979—Subsec. (a)(1)(G). Pub. L. 96–70 substituted ‘‘Commission’’ for ‘‘Company’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1996 AMENDMENT Amendment by section 1122(a)(1) of Pub. L. 104–201 ef- fective Oct. 1, 1996, see section 1124 of Pub. L. 104–201, set out as a note under section 193 of Title 10, Armed Forces. EFFECTIVE DATE OF 1983 AMENDMENT Amendment by Pub. L. 97–468 effective on date of transfer of Alaska Railroad to the State [Jan. 5, 1985], pursuant to section 1203 of Title 45, Railroads, see sec- tion 615(b) of Pub. L. 97–468. 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 Pub. L. 96–70 effective Oct. 1, 1979, see section 3304 of Pub. L. 96–70, set out as an Effective Date note under section 3601 of Title 22, Foreign Rela- tions and Intercourse. EFFECTIVE DATE Section effective on first day of first applicable pay period beginning on or after 90th day after Aug. 19, 1972, except that in the case of employees referred to in sub- sec. (a)(2)(B) and (C) section effective on first day of first applicable pay period beginning on or after 180th day after Aug. 19, 1972, or on such earlier date (not ear- lier than 90th day after Aug. 19, 1972) as Civil Service Commission may prescribe, see section 15(a) of Pub. L. 92–392, set out as a note under section 5341 of this title. ABOLITION OF ATOMIC ENERGY COMMISSION Atomic Energy Commission abolished and functions transferred by sections 5814 and 5841 of Title 42, The Public Health and Welfare. See, also, Transfer of Func- tions notes set out under those sections. DISSOLUTION OF VIRGIN ISLANDS CORPORATION Virgin Islands Corporation established to have suc- cession until June 30, 1969, unless sooner dissolved by Act of Congress, by act June 30, 1949, ch. 285, 63 Stat. 350, as amended (48 U.S.C. 1407 et seq.). Corporation ter- minated its program June 30, 1965, and dissolved July 1, 1966. Act June 30, 1949, was repealed by Pub. L. 97–357, title III, § 308(e), Oct. 19, 1982, 96 Stat. 1710. § 5343. Prevailing rate determinations; wage schedules; night differentials (a) The pay of prevailing rate employees shall be fixed and adjusted from time to time as near- ly as is consistent with the public interest in ac- cordance with prevailing rates. Subject to sec- tion 213(f) of title 29, the rates may not be less than the appropriate rates provided by section 206(a)(1) of title 29. To carry out this sub- section— (1) the Office of Personnel Management shall define, as appropriate— (A) with respect to prevailing rate employ- ees other than prevailing rate employees under paragraphs (B) and (C) of section 5342(a)(2) of this title, the boundaries of— (i) individual local wage areas for pre- vailing rate employees having regular wage schedules and rates; and (ii) wage areas for prevailing rate em- ployees having special wage schedules and rates; (B) with respect to prevailing rate employ- ees under paragraphs (B) and (C) of section 5342(a)(2) of this title, the boundaries of— (i) individual local wage areas for pre- vailing rate employees under such para- graphs having regular wage schedules and rates (but such boundaries shall not extend beyond the immediate locality in which the particular prevailing rate employees are employed); and (ii) wage areas for prevailing rate em- ployees under such paragraphs having spe- cial wage schedules and rates; (2) the Office of Personnel Management shall designate a lead agency for each wage area; (3) subject to paragraph (5) of this sub- section, and subsections (c)(1)–(3) and (d) of this section, a lead agency shall conduct wage surveys, analyze wage survey data, and de- velop and establish appropriate wage sched- ules and rates for prevailing rate employees;