5 U.S.C. § 3392 — General appointment provisions

Page 436 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 3385 (Added Pub. L. 92–297, § 3(a), May 16, 1972, 86 Stat. 143; amended Pub. L. 96–347, § 1(b), Sept. 12, 1980, 94 Stat. 1150.) Editorial Notes REFERENCES IN TEXT For definition of Secretary, referred to in text, see section 2109 of this title. AMENDMENTS 1980—Pub. L. 96–347 substituted ‘‘Secretary’’ for ‘‘Sec- retary of Transportation’’. Statutory Notes and Related Subsidiaries 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 Section effective on 90th day after May 16, 1972, see section 10 of Pub. L. 92–297, set out as a note under sec- tion 3381 of this title. § 3385. Effect on other authority This subchapter shall not limit the authority of the Secretary to reassign temporarily an air traffic controller to other duties with or with- out notice, in the interest of the safe or efficient separation and control of air traffic or the phys- ical or mental health of a controller; or to reas- sign permanently or separate a controller under any other provision of law. (Added Pub. L. 92–297, § 3(a), May 16, 1972, 86 Stat. 143; amended Pub. L. 96–347, § 1(b), Sept. 12, 1980, 94 Stat. 1150.) Editorial Notes REFERENCES IN TEXT For definition of Secretary, referred to in text, see section 2109 of this title. AMENDMENTS 1980—Pub. L. 96–347 substituted ‘‘Secretary’’ for ‘‘Sec- retary of Transportation’’. Statutory Notes and Related Subsidiaries 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 Section effective on 90th day after May 16, 1972, see section 10 of Pub. L. 92–297, set out as a note under sec- tion 3381 of this title. SUBCHAPTER VIII—APPOINTMENT, RE- ASSIGNMENT, TRANSFER, AND DEVELOP- MENT IN THE SENIOR EXECUTIVE SERV- ICE Editorial Notes PRIOR PROVISIONS A prior subchapter VIII, added Pub. L. 95–437, § 3(a), Oct. 10, 1978, 92 Stat. 1056, which related to part-time career employment opportunities, was redesignated as chapter 34 of this title by Pub. L. 95–454, title IX, § 906(c)(1)(A), Oct. 13, 1978, 92 Stat. 1226. § 3391. Definitions For the purpose of this subchapter, ‘‘agency’’, ‘‘Senior Executive Service position’’, ‘‘senior ex- ecutive’’, ‘‘career appointee’’, ‘‘limited term ap- pointee’’, ‘‘limited emergency appointee’’, ‘‘non- career appointee’’, and ‘‘general position’’ have the meanings set forth in section 3132(a) of this title. (Added Pub. L. 95–454, title IV, § 403(a), Oct. 13, 1978, 92 Stat. 1161.) Editorial Notes PRIOR PROVISIONS A prior section 3391, added Pub. L. 95–437, § 3(a), Oct. 10, 1978, 92 Stat. 1056, which related to definitions for part-time career employment opportunities, was re- numbered as section 3401 of this title by Pub. L. 95–454, title IX, § 906(c)(1)(B), Oct. 13, 1978, 92 Stat. 1226. Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section effective 9 months after Oct. 13, 1978, and con- gressional review of provisions of sections 401 through 412 of Pub. L. 95–454, see section 415(a)(1), (b) of Pub. L. 95–454, set out as an Effective Date note under section 3131 of this title. § 3392. General appointment provisions (a) Qualification standards shall be established by the head of each agency for each Senior Exec- utive Service position in the agency— (1) in accordance with requirements estab- lished by the Office of Personnel Management, with respect to standards for career reserved positions, and (2) after consultation with the Office, with respect to standards for general positions. (b) Not more than 30 percent of the Senior Ex- ecutive Service positions authorized under sec- tion 3133 of this title may at any time be filled by individuals who did not have 5 years of cur- rent continuous service in the civil service im- mediately preceding their initial appointment to the Senior Executive Service, unless the President certifies to the Congress that the lim- itation would hinder the efficiency of the Gov- ernment. In applying the preceding sentence, any break in service of 3 days or less shall be disregarded. (c)(1) If a career appointee is appointed by the President, by and with the advice and consent of the Senate, to a civilian position in the execu- tive branch which is not in the Senior Executive Service, and the rate of basic pay payable for which is equal to or greater than the rate pay- able for level V of the Executive Schedule, the career appointee may elect (at such time and in such manner as the Office may prescribe) to con- tinue to have the provisions of this title relating to basic pay, performance awards, awarding of ranks, severance pay, leave, and retirement apply as if the career appointee remained in the Senior Executive Service position from which he was appointed. Such provisions shall apply in lieu of the provisions which would otherwise apply— (A) to the extent provided under regulations prescribed by the Office, and Page 437 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 3393 (B) so long as the appointee continues to serve under such Presidential appointment. (2) An election under paragraph (1) may also be made by any career appointee who is ap- pointed to a civilian position in the executive branch— (A) which is not in the Senior Executive Service; and (B) which is covered by the Executive Sched- ule, or the rate of basic pay for which is fixed by statute at a rate equal to 1 of the levels of the Executive Schedule. An election under this paragraph shall remain effective so long as the appointee continues to serve in the same position. (d) Appointment or removal of a person to or from any Senior Executive Service position in an independent regulatory commission shall not be subject, directly or indirectly, to review or approval by any officer or entity within the Ex- ecutive Office of the President. (Added Pub. L. 95–454, title IV, § 403(a), Oct. 13, 1978, 92 Stat. 1161; amended Pub. L. 101–335, § 7(a), July 17, 1990, 104 Stat. 325.) Editorial Notes REFERENCES IN TEXT The Executive Schedule, referred to in subsec. (c), is set out as section 5311 et seq. of this title. PRIOR PROVISIONS A prior section 3392, added Pub. L. 95–437, § 3(a), Oct. 10, 1978, 92 Stat. 1056, which related to the establish- ment of part-time career employment programs, was renumbered as section 3402 of this title by Pub. L. 95–454, title IX, § 906(c)(1)(B), Oct. 13, 1978, 92 Stat. 1226. AMENDMENTS 1990—Subsec. (c). Pub. L. 101–335 designated existing provisions as par. (1), redesignated former pars. (1) and (2) as subpars. (A) and (B), respectively, and added par. (2). Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1990 AMENDMENT Pub. L. 101–335, § 7(b)(1), July 17, 1990, 104 Stat. 325, provided that: ‘‘The amendments made by this section [amending this section] shall take effect on the date of enactment of this Act [July 17, 1990].’’ EFFECTIVE DATE Section effective 9 months after Oct. 13, 1978, and con- gressional review of provisions of sections 401 through 412 of Pub. L. 95–454, see section 415(a)(1), (b) of Pub. L. 95–454, set out as an Effective Date note under section 3131 of this title. ELECTION BY PERSONS PREVIOUSLY APPOINTED; RETROACTIVE PERFORMANCE AWARDS Pub. L. 101–335, § 7(b)(2), (3), July 17, 1990, 104 Stat. 325, as amended by Pub. L. 102–378, § 7(a), Oct. 2, 1992, 106 Stat. 1359, provided that: ‘‘(2) ELECTION BY PERSONS PREVIOUSLY APPOINTED.— The Office of Personnel Management shall prescribe regulations (including procedures and deadlines) under which an election under section 3392(c)(2) of title 5, United States Code (as amended by this section) may be made by any individual who— ‘‘(A) on the date of enactment of this Act [July 17, 1990], is serving in a civilian position in the executive branch which— ‘‘(i) is not in the Senior Executive Service; and ‘‘(ii) satisfies section 3392(c)(2)(B) of such title 5 (as so amended); ‘‘(B) was appointed to that position on or after No- vember 1, 1986, and has served continuously in such position since then; ‘‘(C) was a career appointee (within the meaning of section 3132(a)(4) of such title 5) immediately before having been so appointed; and ‘‘(D) was not, based on such individual’s appoint- ment to the position described in subparagraph (A), eligible to make an election under section 3392(c) of such title 5 (as then in effect). An election under this paragraph shall be effective as of the date of appointment to the position described in subparagraph (A). ‘‘(3) RETROACTIVE PERFORMANCE AWARDS.—If an indi- vidual elects under paragraph (2) to continue to be sub- ject to performance awards, the head of the agency in which such individual is serving shall determine wheth- er to grant retroactive performance awards for any fis- cal years prior to fiscal year 1991 to such individual, and the amount of any such awards, without regard to the provisions of subsection (b) of section 5383 of title 5, United States Code, and subsections (b) and (c) of section 5384 of such title. Before granting an award, the head of the agency shall make a written determination that the individual’s performance during the fiscal year for which the award is given was at least fully success- ful, and shall consider the recommendation of the agen- cy’s performance review board with respect to the award. No such award for performance during any fiscal year may be less than 5 percent nor more than 15 per- cent of the individual’s rate of basic pay as of the end of such fiscal year.’’ [Pub. L. 102–378, § 7(b), Oct. 2, 1992, 106 Stat. 1359, pro- vided that: ‘‘The amendment made by subsection (a) [enacting section 7(b)(3) of Pub. L. 101–335, set out above] shall be effective as if enacted as a part of sec- tion 7 of the Thrift Savings Plan Technical Amend- ments Act of 1990 [Pub. L. 101–335].’’] § 3393. Career appointments (a) Each agency shall establish a recruitment program, in accordance with guidelines which shall be issued by the Office of Personnel Man- agement, which provides for recruitment of ca- reer appointees from— (1) all groups of qualified individuals within the civil service; or (2) all groups of qualified individuals wheth- er or not within the civil service. (b) Each agency shall establish one or more executive resources boards, as appropriate, the members of which shall be appointed by the head of the agency from among employees of the agency or commissioned officers of the uni- formed services serving on active duty in such agency. The boards shall, in accordance with merit staffing requirements established by the Office, conduct the merit staffing process for ca- reer appointees, including— (1) reviewing the executive qualifications of each candidate for a position to be filled by a career appointee; and (2) making written recommendations to the appropriate appointing authority concerning such candidates. (c)(1) The Office shall establish one or more qualifications review boards, as appropriate. It is the function of the boards to certify the exec- utive qualifications of candidates for initial ap- pointment as career appointees in accordance with regulations prescribed by the Office. Of the