5 U.S.C. § 3384 — Regulations

Page 435 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 3384 title may be separated involuntarily from the service if the Secretary determines that the sep- aration of the controller is necessary in the in- terest of— (1) aviation safety; (2) the efficient control of air traffic; or (3) the preservation of the physical or men- tal health of the controller. Chapter 75 of this title does not apply to a deter- mination or action under this section. Separa- tion under this section shall not become final, without the consent of the controller, until the last day of the second month following the day the controller receives a notification of the de- termination by the Secretary under this section, or, if a review is requested under section 3383 of this title, the last day of the month in which a final decision is issued by a board of review under section 3383(c) of this title, whichever is later. A controller who is to be separated under this section is entitled to training under section 3381 of this title. Separation of such a controller who elects to receive training under section 3381 shall not become final until the last day of the month following the completion of his training. (Added Pub. L. 92–297, § 3(a), May 16, 1972, 86 Stat. 142; 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 in provisions preceding par. (1) substituted ‘‘Secretary determines’’ for ‘‘Secretary of Transportation determines’’. 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. § 3383. Determinations; review procedures (a) An air traffic controller subject to a deter- mination by the Secretary under section 3381(a) or section 3382 of this title, shall be furnished a written notice of the determination and the rea- sons therefor, and a notification that the con- troller has 15 days after the receipt of the notifi- cation within which to file a written request for reconsideration of the determination. Unless the controller files such a request within the 15 days, or unless the determination is rescinded by the Secretary within the 15 days, the deter- mination shall be final. (b) If the Secretary does not rescind his deter- mination within 15 days after his receipt of the written request filed by the controller under subsection (a) of this section, the Secretary shall immediately convene a board of review, consisting of— (1) a person designated by the controller; (2) a representative of the Executive agency in which the controller is employed designated by the Secretary; and (3) a representative of the Merit Systems Protection Board, designated by the Chair- man, who shall serve as chairman of the board of review. (c) The board of review shall review evidence supporting and inconsistent with the determina- tion of the Secretary and, within a period of 30 days after being convened, shall issue its find- ings and furnish copies thereof to the Secretary and the controller. The board may approve or rescind the determination of the Secretary. A decision by the board under this subsection is final. The Secretary shall take such action as may be necessary to carry out the decision of the board. (d) Except as provided under section 3382 of this title, the review procedure of this section is in addition to any other review or appeal proce- dures provided under any other provision of law, but is the sole and exclusive administrative remedy available to a controller within the Ex- ecutive agency in which such controller is em- ployed. (Added Pub. L. 92–297, § 3(a), May 16, 1972, 86 Stat. 143; amended Pub. L. 95–454, title IX, § 906(a)(6), Oct. 13, 1978, 92 Stat. 1225; Pub. L. 96–347, § 1(b), (c)(2), (3), 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—Subsec. (a). Pub. L. 96–347, § 1(b), substituted ‘‘Secretary under’’ for ‘‘Secretary of Transportation under’’. Subsec. (b)(2). Pub. L. 96–347, § 1(c)(2), substituted ‘‘the Executive agency in which the controller is em- ployed’’ for ‘‘the Department of Transportation’’. Subsec. (d). Pub. L. 96–347, § 1(c)(3), substituted ‘‘with- in the Executive agency in which such controller is em- ployed’’ for ‘‘within the Department of Transpor- tation’’. 1978—Subsec. (b)(3). Pub. L. 95–454 substituted ‘‘Merit Systems Protection Board’’ for ‘‘Civil Service Commis- sion’’. 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 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 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. § 3384. Regulations The Secretary is authorized to issue regula- tions to carry out the provisions of this sub- chapter. 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