5 U.S.C. § 5365 — Regulations

Page 616 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 5364 ‘‘(2) CONVERSION RULES.— ‘‘(A) INDIVIDUALS RECEIVING A RETAINED RATE OR A RATE GREATER THAN THE MAXIMUM RATE FOR THE GRADE.—Subject to any regulations the Office of Per- sonnel Management may prescribe, an employee under a covered pay schedule who, on the day before the effective date of this section, is receiving a re- tained rate under section 5363 of title 5, United States Code, or is receiving under similar authority a rate of basic pay that is greater than the maximum rate of basic pay payable for the grade of the employee’s po- sition shall have that rate converted as of the effec- tive date of this section, and the employee shall be considered to be receiving a retained rate under sec- tion 5363 of such title (as amended by this section). The newly applicable retained rate shall equal the formerly applicable retained rate as adjusted to in- clude any applicable locality-based payment under section 5304 of title 5, United States Code, or similar provision of law. ‘‘(B) DEFINITION.—For purposes of this paragraph, the term ‘covered pay schedule’ has the meaning given such term by section 5361 of title 5, United States Code.’’ EFFECTIVE DATE OF 1993 AMENDMENT Amendment by Pub. L. 103–89 effective Nov. 1, 1993, see section 3(c) of Pub. L. 103–89, set out as a note under section 3372 of this title. 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. § 5364. Remedial actions Under regulations prescribed by the Office of Personnel Management, the Office may require any agency— (1) to report to the Office information with respect to vacancies (including impending va- cancies); (2) to take such steps as may be appropriate to assure employees receiving benefits under section 5362 or 5363 of this title have the oppor- tunity to obtain necessary qualifications for the selection to positions which would mini- mize the need for the application of such sec- tions; (3) to establish a program under which em- ployees receiving benefits under section 5362 or 5363 of this title are given priority in the consideration for or placement in positions which are equal to their retained grade or pay; and (4) to place certain employees, notwith- standing the fact their previous position was in a different agency, but only in cir- cumstances in which the Office determines the exercise of such authority is necessary to carry out the purpose of this section. (Added Pub. L. 95–454, title VIII, § 801(a)(1), Oct. 13, 1978, 92 Stat. 1220.) Editorial Notes PRIOR PROVISIONS A prior section 5364, Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 473, which related to miscellaneous positions in the executive branch, was renumbered section 5374 of this title by Pub. L. 95–454, title VIII, § 801(a)(3)(A)(ii), Oct. 13, 1978, 92 Stat. 1221. § 5365. Regulations (a) The Office of Personnel Management shall prescribe regulations to carry out the purpose of this subchapter. (b) Under such regulations, the Office may provide for the application of all or portions of the provisions of this subchapter (subject to any conditions or limitations the Office may estab- lish)— (1) to any individual reduced to a grade of a covered pay schedule from a position not sub- ject to this subchapter; (2) to individuals to whom such provisions do not otherwise apply; and (3) to situations the application to which is justified for purposes of carrying out the mis- sion of the agency or agencies involved. Individuals with respect to whom authority under paragraph (2) may be exercised include in- dividuals who are moved without a break in service of more than 3 days from employment in nonappropriated fund instrumentalities of the Department of Defense or the Coast Guard de- scribed in section 2105(c) to employment in the Department of Defense or the Coast Guard, re- spectively, that is not described in section 2105(c). (Added Pub. L. 95–454, title VIII, § 801(a)(1), Oct. 13, 1978, 92 Stat. 1220; amended Pub. L. 101–508, title VII, § 7202(f), Nov. 5, 1990, 104 Stat. 1388–336; Pub. L. 108–411, title III, § 301(a)(6), Oct. 30, 2004, 118 Stat. 2317.) Editorial Notes PRIOR PROVISIONS A prior section 5365, added Pub. L. 91–34, § 1(a), June 30, 1969, 83 Stat. 41; amended Pub. L. 94–183, § 2(20), Dec. 31, 1975, 89 Stat. 1058, which related to the police force of National Zoological Park, was renumbered section 5375 of this title by Pub. L. 95–454, title VIII, § 801(a)(3)(A)(ii), Oct. 13, 1978, 92 Stat. 1221. AMENDMENTS 2004—Subsec. (b). Pub. L. 108–411 inserted ‘‘(subject to any conditions or limitations the Office may estab- lish)’’ after ‘‘provisions of this subchapter’’ in introduc- tory provisions. 1990—Subsec. (b). Pub. L. 101–508 inserted at end ‘‘In- dividuals with respect to whom authority under para- graph (2) may be exercised include individuals who are moved without a break in service of more than 3 days from employment in nonappropriated fund instrumen- talities of the Department of Defense or the Coast Guard described in section 2105(c) to employment in the Department of Defense or the Coast Guard, respec- tively, that is not described in section 2105(c).’’ Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2004 AMENDMENT Amendment by Pub. L. 108–411 effective on the first day of the first applicable pay period beginning on or after the 180th day after Oct. 30, 2004, with provisions relating to conversion rules, see section 301(d) of Pub. L. 108–411, set out as a note under section 5363 of this title. EFFECTIVE DATE OF 1990 AMENDMENT Amendment by Pub. L. 101–508 applicable with re- spect to any individual who, on or after Jan. 1, 1987, moves from employment in nonappropriated fund in- strumentality of Department of Defense or Coast Page 617 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 5371 Guard, that is described in section 2105(c) of this title, to employment in Department or Coast Guard, that is not described in section 2105(c), or who moves from em- ployment in Department or Coast Guard, that is not described in section 2105(c), to employment in non- appropriated fund instrumentality of Department or Coast Guard, that is described in section 2105(c), see section 7202(m)(1) of Pub. L. 101–508, set out as a note under section 2105 of this title. TRANSFER OF FUNCTIONS For transfer of authorities, functions, personnel, and assets of the Coast Guard, including the authorities and functions of the Secretary of Transportation relat- ing thereto, to the Department of Homeland Security, and for treatment of related references, see sections 468(b), 551(d), 552(d), and 557 of Title 6, Domestic Secu- rity, and the Department of Homeland Security Reor- ganization Plan of November 25, 2002, as modified, set out as a note under section 542 of Title 6. § 5366. Appeals (a)(1) In the case of the termination of any benefits available to an employee under this subchapter on the grounds such employee de- clined a reasonable offer of a position the grade or pay of which was equal to or greater than his retained grade or pay, such termination may be appealed to the Office of Personnel Management under procedures prescribed by the Office. (2) Nothing in this subchapter shall be con- strued to affect the right of any employee to ap- peal— (A) under section 5112(b) or 5346(c) of this title, or otherwise, any reclassification of a position; or (B) under procedures prescribed by the Office of Personnel Management, any reduction-in- force action. (b) For purposes of any appeal procedures (other than those described in subsection (a) of this section) or any grievance procedure nego- tiated under the provisions of chapter 71 of this title— (1) any action which is the basis of an indi- vidual’s entitlement to benefits under this subchapter, and (2) any termination of any such benefits under this subchapter, shall not be treated as appealable under such ap- peals procedures or grievable under such griev- ance procedure. (Added Pub. L. 95–454, title VIII, § 801(a)(1), Oct. 13, 1978, 92 Stat. 1221.) SUBCHAPTER VII—MISCELLANEOUS PROVISIONS Editorial Notes AMENDMENTS 1978—Pub. L. 95–454, title VIII, § 801(a)(3)(A)(i), Oct. 13, 1978, 92 Stat. 1221, redesignated former subchapter VI as VII. § 5371. Health care positions (a) For the purposes of this section, ‘‘health care’’ means direct patient-care services or serv- ices incident to direct patient-care services. (b) The Office of Personnel Management may, with respect to any employee described in sub- section (c), provide that 1 or more provisions of chapter 74 of title 38 shall apply— (1) in lieu of any provision of chapter 51 or 61, subchapter V of chapter 55, or any other provision of this chapter; or (2) notwithstanding any lack of specific au- thority for a matter with respect to which chapter 51 or 61, subchapter V of chapter 55, or this chapter, relates. (c) Authority under subsection (b) may be ex- ercised with respect to any employee holding a position— (1) to which chapter 51 applies, excluding any Senior Executive Service position and any position in the Federal Bureau of Investiga- tion and Drug Enforcement Administration Senior Executive Service; and (2) which involves health care responsibil- ities. (Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 473, § 5361; renumbered § 5371 and amended Pub. L. 95–454, title VIII, § 801(a)(3)(A)(ii), title IX, § 906(a)(2), Oct. 13, 1978, 92 Stat. 1221, 1224; Pub. L. 101–509, title V, § 529 [title II, § 205(A)], Nov. 5, 1990, 104 Stat. 1427, 1456; Pub. L. 102–378, § 2(31), Oct. 2, 1992, 106 Stat. 1350.) HISTORICAL AND REVISION NOTES Derivation U.S. Code Revised Statutes and Statutes at Large .................. 5 U.S.C. 1162(b). Oct. 4, 1961, Pub. L. 87–367, § 202 ‘‘Sec. 2(b)’’, 75 Stat. 790. Oct. 11, 1962, Pub. L. 87–793, § 1001(a)(1), 76 Stat. 863. The authority to fix rates of pay is added on author- ity of former section 1161, which is carried into section 3104. 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 defi- nitions applicable and the style of this title as outlined in the preface to the report. Editorial Notes AMENDMENTS 1992—Subsec. (b). Pub. L. 102–378 substituted ‘‘chapter 74’’ for ‘‘chapter 73’’ in introductory provisions and in- serted ‘‘subchapter V of chapter 55,’’ after ‘‘61,’’ in pars. (1) and (2). 1990—Pub. L. 101–509 amended section generally, sub- stituting designated provisions directing that Office of Personnel Management may provide that chapter 73 of title 38 provisions apply to certain health care profes- sionals for undesignated text authorizing agency heads to fix pay rates for scientific and professional positions at between GS–16 and GS–18 rates. 1978—Pub. L. 95–454, § 906(a)(2), substituted ‘‘Office of Personnel Management’’ for ‘‘Civil Service Commis- sion’’. Statutory Notes and Related Subsidiaries 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 1978 AMENDMENT Amendment by section 906(a)(2) of Pub. L. 95–454 ef- fective 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.