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Page:United States Statutes at Large Volume 92 Part 1.djvu/1193

 PUBLIC LAW 95-454—OCT. 13, 1978

92 STAT. 1139

the Director may as a matter of right intervene or otherwise participate in that proceeding before the Board. If the Director exercises his right to participate in a proceeding before the Board, he shall do so as early in the proceeding as practicable. Nothing in this title shall be construed to permit the Office to interfere with the independent decisionmaking of the Merit Systems Protection Board. "(2) The Board shall promptly notify the Director whenever the Notification. interpretation of any civil service law, rule, or regulation under the jurisdiction of the Office is at issue in any proceeding under this section. " (e)(1) Except as provided in section 7702 of this title, any decision Decisions. under subsection (b) of this section shall be final unless— "(A) a party to the appeal or the Director petitions the Board for review within 30 days after the receipt of the decision; or "(B) the Board reopens and reconsiders a case on its own motion. The Board, for good cause shown, may extend the 30-day period referred to in subparagraph (A) of this paragraph. One member of the Board may grant a petition or otherwise direct that a decision be reviewed by the full Board. The preceding sentence shall not apply if, by law, a decision of an administration law judge is required to be acted upon by the Board. "(2) The Director may petition the Board for a review under para- Petition for graph (1) of this subsection only if the Director is of the ©pinion that review, the decision is erroneous and will have a substantial impact on any civil service law, rule, or regulation under the jurisdiction of the Office. m-'Cfiih.^ss^h "(f) The Board, or an administrative law judge or other employee of the Board designated to hear a case, may— "(1) consolidate appeals filed by two or more appellants, or "(2) join two or more appeals filed by the same appellant and hear and decide them concurrently, if the deciding official or officials hearing the cases are of the opinion that the action could result in the appeals' being processed more expeditiously and would not adversely aifect any party, "(g)(1) Except as provided in paragraph (2) of this subsection, the Board, or an administrative law judge or other employee of the Board designated to hear a case, may require payment by the agency involved of reasonable attorney fees incurred by an employee or appli^/ \ cant for employment if the employee or applicant is the prevailing /'.-— iKi' party and the Board, administrative law judge, or other employee, as the case may be, determines that payment by the agency is warranted in the interest of justice, including any case in which a prohibited personnel practice was engaged in by the agency or any case in which the agency's action was clearly without merit. "(2") If an employee or applicant for employment is the prevailing party and the decision is based on a finding of discrimination prohibited under section 2302(b)(1) of this title, the payment of attorney Ante, p. 1114 fees shall be in accordance with the standards prescribed under section 706(k) of the Civil Rights Act of 1964 (42 U.S.C. 2000e^5(k)). "(h) The Board may, by regulation, provide for one or more alternative methods for settling matters subject to the appellate jurisdiction of the Board which shall be applicable at the election of an applicant for employment or of an employee who is not in a unit for which a labor organization is accorded exclusive recognition, and shall be in lieu of other procedures provided for under this section. A decision under such a method shall be final, unless the Board reopens

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text:
Page:United States Statutes at Large Volume 92 Part 1.djvu/1194

 92 STAT. 1140

.i(IIS;!! .iu Report to Congress.

Regulations.

5 USC 7702.

42 USC 2000e-16. .,

fijrj,,,

V

PUBLIC LAW 95-454—OCT. 13, 1978 and reconsiders a case at the request of the Office of Personnel Management under subsection (d) of this section. " (i)(l) Upon the submission of any appeal to the Board under this section, the Board, through reference to such categories of cases, or other means, as it determines appropriate, shall establish and announce publicly the date by which it intends to complete action on the matter. Such date shall assure expeditious consideration of the appeal, consistent with the interests of fairness and other priorities of the Board. If the Board fails to complete action on the appeal by the announced date, and the expected delay will exceed 30 days, the Board shall publicly announce the new date by which it intends to complete action on the appeal. "(2) Not later than March 1 of each year, the Board shall submit to the Congress a report describing the number of appeals submitted to it during the preceding calendar year, the number of appeals on which it completed action durina: that year, and the number of instances during that year in which it failed to conclude a proceeding by the date originally announced, together with an explanation of the reasons therefor. "(3) The Board shall by rule indicate any other category of significant Board action which the Board determines should be subject to the provisions of this subsection. "(4) It shall be the duty of the Board, an administrative law judge, or employee designated by the Board to hear any proceeding under this section to expedite to the extent practicable that proceeding. "(j) The Board may prescribe regulations to carry out the purpose of this section. "§ 7702. Actions involving discrimination "(a)(1) Notwithstanding any other provision of law, and except as provided in paragraph (2) of this subsection, in the case of any employee or applicant for employment who— "(A) has been effected by an action which the employee or applicant may appeal to the Merit Systems Protection Board, and "(B) alleges that a basis for the action was discrimination prohibited by— "(i) section 717 of the Civil Eights Act of 1964 (42 U.S.C. 2000e-16c), " (ii) section 6(d) of the Fair Labor Standards Act of 1938 (29 U.S.C. 206(d)), "(iii) section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 791), "(iv) sections 12 and 15 of the Age Discrimination in Employment Act of 1967 (29 U.S.C. 631,633a), or "(v) any rule, regulation, or policy directive prescribed under any provision of law described in clauses (i) through (iv) of this subparagraph, the Board shall, within 120 days of the filing of the appeal, decide both the issue of discrimination and the appealable action in accordance with the Board's appellate procedures under section 7701 of this title and this section. "(2) In any matter before an agency- which involves— "(A) any action described in paragraph (1)(A) of this subsection; and "(B) any issue of discrimination prohibited under any provision of law described in paragraph (1)(B) of this subsection;

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license: Creative Commons - Attribution Share-Alike - https://creativecommons.org/licenses/by-sa/4.0/


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Page:United States Statutes at Large Volume 92 Part 1.djvu/1195

 PUBLIC LAW 95-454—OCT. 13, 1978

92 STAT. 1141

the agency shall resolve such matter within 120 days. The decision of the agency in any such matter shall be a judicially reviewable action unless the employee appeals the matter to the Board under paragraph (1^ of this subsection. "(3) Any decision of the Board under paragraph (1) of this subsection shall be a judicially reviewable action as of— "(A) the date of issuance of the decision if the employee or applicant does not file a petition with the Equal Employment Opportunity Commission under subsection (b)(1) of this section, or "(B) the date the Commission determines not to consider the decision under subsection (b)(2) of this section. "(b)(1) An employee or applicant may, within 30 days after notice of the decision of the Board under subsection (a)(1) of this section, petition the Commission to consider the decision. " (2) The Commission shall, within 30 days after the date of the petition, determine whether to consider the decision. A determination of the Commission not to consider the decision may not be used as evidence with respect to any issue of discrimination in any judicial proceeding concerning that issue. "(3) If the Commission makes a determination to consider the decision, the Commission shall, within 60 days after the date of the determination, consider the entire record of the proceedings of the Board and, on the basis of the evidentiary record before the Board, as supplemented under paragraph (4) of this subsection, either— "(A) concur in the decision of the Board; or "(B) issue in writing another decision which differs from the decision of the Board to the extent that the Commission finds that, as a matter of law— " (i) the decision of the Board constitutes an incorrect interpretation of any provision of any law, rule, regulation, or policy directive referred to in subsection (a)(1)(B) of this section, or "(ii) the decision involving such provision is not supported by the evidence in the record as a whole. " (4) In considering any decision of the Board under this subsection, the Commission may refer the case to the Board, or provide on its own, for the taking (within such period as permits the Commission to make a decision within the 60-day period prescribed under this subsection) of additional evidence to the extent it considers.necessary to supplement the record. " (5)(A) If the Commission concurs pursuant to paragraph (3)(A) of this subsection in the decision of the Board, the decision of the Board shall be a judicially reviewable action. " (B) If the Commission issues any decision under paragraph (3)(B) of this subsection, the Commission shall immediately refer the matter to the Board. "(c) Within 30 days after receipt by the Board of the decision of the Commission under subsection (b)(5)(B) of this section, the Board shall consider the decision and— "(1) concur and adopt in whole the decision of the Commission; or "(2) to the extent that the Board finds that, as a matter of law. (A) the Commission decision constitutes an incorrect interpretation of any provision of any civil service law, rule, regulation or policy directive, or (B) the Commission decision involving

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text:
Page:United States Statutes at Large Volume 92 Part 1.djvu/1196

 92 STAT. 1142

PUBLIC LAW 95-454—OCT. 13, 1978

such provision is not supported by the evidence in the record as a whole— i " (i) reaffirm the initial decision of the Board; or "(ii) reaffirm the initial decision of the Board with such revisions as it determines appropriate. If the Board takes the action provided under paragraph (1), the decision of the Board shall be a judicially reviewable action. "(d)(1) If the Board takes any action under subsection (c)(2) of this section, the matter shall be immediately certified to a special panel described in paragraph (6) of this subsection. Upon certification, the Board shall, within 5 days (excluding Saturdays, Sundays, and holidays), transmit to the special panel the administrative record in the proceeding, including— " (A) the factual record compiled under this section, "(B) the decisions issued by the Board and the Commission under this section, and "(C) any transcript of oral arguments made, or legal briefs ' filed, before the Board or the Commission. "(2)(A) The special panel shall, within 45 days after a matter has been certified to it, review the administrative record transmitted to it and, on the basis of the record, decide the issues in dispute and issue a final decision which shall be a judicially reviewable action. "(B) The special panel shall give due deference to the respective expertise of the Board and Commission in making its decision. "(3) The special panel shall refer its decision under paragraph (2) of this subsection to the Board and the Board shall order any agency to take any action appropriate to carry out the decision. "(4) The special panel shall permit the employee or applicant who brought the complaint and the employing agency to appear before the panel to present oral arguments and to present written arguments with respect to the matter. "(5) Upon application by the employee or applicant, the Commission may issue such interim relief as it determines appropriate to mitigate any exceptional hardship the employee or applicant might otherwise incur as a result of the certification of any matter under this subsection, except that the Commission may not stay, or order any agency to leview on an interim basis, the action referred to in subsection (a)(1) of this section. Special panel. "(6)(A) Each time the Board takes any action under subsection (c)(2) of this section, a special panel shall be convened which shall consist of— "(i) an individual appointed by the President, by and with the advice and consent of the Senate, to serve for a term of 6 years as chairman of the special panel each time it is convened; "(ii) one member of the Board designated by the Chairman of the Board each time a panel is convenecf; and "(iii) one member of the Commission designated by the Chairman of the Commission each time a panel is convened. The chairman of the special panel may be removed by the President only for inefficiency, neglect of diity, or malfeasance in office. "(B) The chairman is entitled to pay at a rate equal to the maxi5 USC 5332 note, mum annual rate of basic pay payable under the General Schedule for each day he is engaged in the performance of official business on the work of the special panel. Administrative "{C) The Board and the Commission shall provide such adminisassistance. trative assistance to the special panel as may be necessary and, to the extent practicable, shall equally divide the costs of providing the administrative assistance.

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Page:United States Statutes at Large Volume 92 Part 1.djvu/1197

 PUBLIC LAW 95-454—OCT. 13, 1978

92 STAT. 1143

''(e)(1) Notwithstanding any other provision of law, if at any time after— " (A) the 120th day following the filing of any matter described in subsection (a)(2) of this section with an agency, there is no judicially reviewable action under this section or an appeal mider paragraph (2) of this subsection; "(B) the 120th day following the filing of an appeal with the Board under subsection (a)(1) of this section, there is no judicially reviewable action (unless such action is not as the result of the filing of a petition by the employee under subsection (b) (1) of this section); or •'*' "(C) the 180th day following the filing of a petition with the Equal Employment Opportunity Commission under subsection (b)(1) of this title, there is no final agency action under subsection (b), (c), or (d) of this section; an employee shall be entitled to file a civil action to the same extent and in the same manner as provided in section 717(c) of the Civil Rights Act of 1964 (42 U.S.C. 2000e-16(c)), section 15(c) of the Age ., Discrimination in Employment Act of 1967 (29 U.S.C. 633a (c)), or '"^' section 16(b) of the Fair Labor Standards Act of 1938 (29 U.S.C. 216(d)). "(2) If, at any time after the 120th day following the filing of any ' matter described in subsection (a)(2) of this section with an agency, there is no judicially reviewable action, the employee may appeal the matter to the Board under subsection (a)(1) of this section. " (3) Mothing in this section shall be construed to affect the right to trial de novo under any provision of law described in subsection (a) (1) of this section after a judicially reviewable action, including the decision of an agency under subsection (a)(2) of this section. "(f) In any case m which an employee is required to file any action, appeal, or petition under this section and the employee timely files the action, appeal, or petition with an agency other than the agency with which the action, appeal, or petition is to be filed, the employee shall be treated as having timely filed the action, appeal, or petition as of the date it is filed with the proper agency. "§ 7703. Judicial review of decisions of the Merit Systems Protec- 5 USC 7703. tion Board "(a)(1) Any employee or applicant for employment adversely affected or aggrieved by a final order or decision of the Merit Systems Protection Board may obtain judicial review of the order or decision. "(2) The Board shall be the named respondent in any proceeding brought pursuant to this subsection, unless the employee or applicant -li', •. "••for employment seeks review of a final order or decision issued by the Board under section 7701. In review of a final order or decision issued under section 7701, the agency responsible for taking the action appealed to the Board shall be the named respondent. ' (b)(1) Except as provided in paragraph (2) of this subsection, a petition to review a final order or final decision of the Board shall be filed in the Court of Claims or a United States court of appeals as provided in chapters 91 and 158, respectively, of title 28. Notwith- 28 USC 1491 et standing any other provision of law, any petition for review must be *^f > 2341 et scq. filed within 30 days after the date the petitioner received notice of the final order or decision of the Board. "(2) Cases of discrimination subject to the provisions of section 7702 of this title shall be filed under section 717(c) of the Civil Rights Act of 1964 (42 U.S.C. 2000e-16(c)), section 15(c) of the Age Discrimination in Employment Act of 1967 (29 U.S.C. 633a (c)), and

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Page:United States Statutes at Large Volume 92 Part 1.djvu/1198

 92 STAT. 1144

Petition,

PUBLIC LAW 95-454—OCT. 13, 1978

section 16(b) of the Fair Labor Standards Act of 1938, as amended (29 U.S.C. 216(b)), as applicable. Notwithstanding' any other provision of law, any such case filed under any such section must be filed within 30 days after the date the individual filing the case received notice of the judicially reviewable action under such section 7702. "(c) In any case filed in the United States Court of Claims or a United States court of appeals, the court shall review the record and hold unlawful and set aside any agency action, findings, or conclusions found to be— "(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; "(2) obtained without procedures required by law, rule, or regulation having been followed; or "(3) unsupported by substantial evidence; except that in the ca,se of discrimination brought under any section referred to in subsection (b)(2) of this section, the employee or applicant shall have the right to have the facts subject to trial de novo by the reviewing court. "(d) The Director of the Office of Personnel Management may obtain review of any final order or decision of the Board by filing a petition for judicial revieyr in the United States Court of Appeals for the District of Columbia if the Director determines, in his discretion, that the Board erred in interpreting a civil service law, rule, or regulation affecting personnel management and that the Board's decision will have a substantial impact on a civil service law, rule, regulation, or policy directive. If the Director did not intervene in a matter before the Board, the Director may not petition for review of a Board decision under this section unless the Director first petitions the Board for a reconsideration of its decision, and such petition is denied. In addition to the named respondent, the Board and all other parties to the proceedings before the Board shall have the right to appear in the proceeding before the Court of Appeals. The granting of the petition for judicial review shall be at the discretion of the Court of Appeals.". TECHNICAL AND CONFORMING

Ante, p. 1143.

AMENDMENTS

SEC. 206. Section 2342 of title 28, United States Code, is amended— (1) by striking out "and" at the end of paragraph (4), (2) by striking out the period at the end of paragraph (5) and inserting in lieu thereof "; and", and (3) by adding at the end thereof the following new paragraph: "(6) all final orders of the Merit Systems Protection Board except as provided for in section 7703(b) of title 5.". TITLE III—STAFFING VOLUNTEER SERVICE

5 USC 3111. "Student."

SEC. 301. (a) Chapter 31 of title 5, United States Code, is amended by adding at the end thereof the following new section: "§ 3111. Acceptance of volunteer service "(a) For the purpose of this section, 'student' means an individual who is enrolled, not less than half-time, in a high school, trade school, technical or vocational institute, junior college, college, university, or comparable recognized educational institution. An individual who is a student is deemed not to have ceased to be a student during an interim

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Page:United States Statutes at Large Volume 92 Part 1.djvu/1199

 PUBLIC LAW 95-454—OCT. 13, 1978

92 STAT. 1145

between school years if the interim is not more than 5 months and if such individual shows to the satisfaction of the Office of Personnel Management that the individual has a bona fide intention of continuing to pursue a course of study or t r a i n i n g in the same or different educational institution during the school semester (or other period into which the school year is divided) immediatelv after the interim. " (b) Notwithstanding section 3679(b) of fhe Revised Statutes (31 U.S.C. 6 6 5 (b)), the head of an agency may accept, subject to regulations issued by the Office, voluntary service for the United States if the service— " (1) is performed by a student, with the permission of the institution at which the student is enrolled, as part of an agency program established for the purpose of providing educational experiences for the student; " (2) is to be uncompensated; and " (3) will not be used to displace any employee. " (c) Any student who provides voluntary service under subsection (b) of this section shall not be considered a Federal employee for any purpose other than for purposes of chapter 81 of this title (relating to 5 USC 8101 compensation for injury) and sections 2671 through 2680 of title 28 et seq. (relating to to r t claims).". (b) The analysis of chapter 31 of title 5, United States Code, is amended by adding at the end thereof the following new item: "3111. Acceptance of volunteer service.". INTERPRETING ASSISTANTS FOR DEAF EMPLOYEES

SEC. 302. (a) Section 3102 of title 5, United States Code, is amended— (1) by redesignating paragraph (4) of subsection (a) as paragraph (5), by striking out " and " at the end of paragraph (3), and inserting after paragraph f3) the following new paragraph " (4) 'deaf employee' means an individual employed by an agency who, in accordance with regulations prescribed by the head of the agency, establishes to the satisfaction of the appropriate authority of the agency concerned that the employee has a hearing impairment, either permanent or temporary, so severe or disabling that the employment of an interpreting assistant or assistants for the employee is necessary or desirable to enable such employee to perform the work of the employee; and "; (2) in subsection (b), by inserting "and interpreting assistant or assistants for a deaf employee" after "or assistants for a blind employee", and amending the last sentence to read as follows: " A reading assistant or an interpreting assistant, other than the one employed or assigned under subsection (d) of this section, may receive pay for services performed by the assistant by and from the blind or deaf employee or a nonprofit organization, without I'egard to section 209 of title 18."; (3) in subsection (c), by inserting "or deaf" after "blind"; and (4) by inserting at the end thereof the following new subsection: " (d) The head of each agency may also employ or assign, subject to section 209 of title 18 and to the provisions of this title governing appointment and chapter 51 and subchapter III of chapter 53 of this title governing classification and pay, such reading assistants for blind employees and such interpreting assistants for deaf employees as may be necessary to enable such employees to perform their work.".

"Deaf employee."

'

5 USC 5101 et
 * «?•' ^331.

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Page:United States Statutes at Large Volume 92 Part 1.djvu/1200

 92 STAT. 1146

PUBLIC LAW 95-454—OCT. 13, 1978 (b)(1) The analysis of chapter 31 of title 5, United States Code, is amended by striking out the item relating to section 3102 and inserting in lieu thereof the following: "3102. Employment of reading assistants for blind employees and interpreting assistants for deaf employees.". (2) The heading for section 3102 of title 5, United States Code, is amended to read as follows: "§3102. Employment of reading assistants for blind employees and interpreting assistants for deaf employees". (c) Section 410(b)(1) of title 39, United States Code, is amended by inserting after "open meetings)" a comma and "3102 (employment of reading assistants for blind employees and interpreting assistants for deaf employees),". PROBATIONARY PERIOD

'

SFX. 303. (a) Section 3321 of title 5, United States Code, is amended to read as follows: "§3321. Competitive service; probationary period "(a) The President may take such action, including the issuance of I'ules, regulations, and directives, as shall provide as nearly as conditions of good administration warrant for a period of probation— "(1) before an appointment in the competitive service becomes final; and "(2) before initial appointment as a supervisor or manager becomes final. "(b) An individual— "(1) who has been transferred, assigned, or promoted from a position to a supervisory or managerial position, and "(2) who does not satisfactorily complete the probationary period under subsection (a)(2) of this section, shall be returned to a position of no lower grade and pay than the position from which the individual was transferred, assigned, or promoted. Nothing in this section prohibits an agency from taking an action against an individual serving a probationary period under subsection (a)(2) of this section for cause unrelated to supervisory or managerial performance. "(c) Subsections (a) and (b) of this section shall not apply with respect to appointments in the Senior Executive Service.". (b) The item in the analysis for chapter 33 of title 5, United States Code, is amended to read as follows: "3321. Competitive service; probationary period.". TRAINING

5 USC 5595. '

SEC. 304. Section 4103 of title 5, United States Code, is amended by inserting " (a) " before "In order to increase" and by adding at the end thereof the following new subsection: "(b)(1) Notwithstanding any other provision of this chapter, an agency may train any employee of the agency to prepare the employee for placement in another agency if the head of the agency determines that the employee will otherwise be separated under conditions which would entitle the employee to severance pay under section 5595 of this title. "(2) Before undertaking any training under this subsection, the head of the agency shall obtain verification from the Office of Person-

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Page:United States Statutes at Large Volume 92 Part 1.djvu/1201

 PUBLIC LAW 95-454—OCT. 13, 1978

92 STAT. 1147

nel Management that there exists a reasonable expectation of placement in another agency. " (3) i n selecting an employee for training under this subsection, the head of the agency shall consider— "(A) the extent to which the current skills, knowledge, and abilities of the employee may be utilized in the new position; "(B) the employee's capability to learn skills and acquire knowledge and abilities needed in the new position; and "(C) the benefits to the Government which would result from retaining the employee in the Federal service.", TRAVEL, TRANSPORTATION, AND SUBSISTENCE

SEC. 305. Section 5723(d) of title 5, United States Code, is amended by striking out "not". RETIREMENT

SEC. 306. Section 8336(d)(2) of title 5, United States Code, is amended to read as follows: "(2) voluntarily, during a period when the agency in which the employee is serving is undergoing a major reorganization, a major reduction in force, or a major transfer of function, as determined by the Office of Personnel Management, and the employee is serving in a geographic area designated by the Office;". VETERANS AND PREFERENCE ELIGIBLES

SEC. 307. (a) Effective beginning October 1, 1980, section 2108 of title 5, United States Code, is amended— (1) by striking out "and" at the end of paragraph (2); (2) by inserting in paragraph (3) after "means" the following: ", except as provided in paragraph (4) of this section"; (3) by striking out the period at the end of paragraph (3) and inserting in lieu thereof a semicolon; and (4) by adding at the end thereof the following new paragraphs: "(4) except for the purposes of chapters 43 and 75 of this title, 'preference eligible' does not include a retired member of the armed forces unless.— "(A) the individual is a disabled veteran; or "(B) the individual retired below the rank of major or its equivalent; and "(5) 'retired member of the armed forces' means a member or former member of the armed forces who is entitled, under statute, to retired, retirement, or retainer pay on account of service as a member.". (b)(1) Chapter 31 of title 5, United States Code, is amended by adding at the end thereof the following new section: "Under such regulations as the Office of Personnel Management shall prescribe, an agency may make a noncompetitive appointment leading to conversion to career or career-conditional employment of a disabled veteran who has a compensable service-connected disability of 30 percent or more." (2) The Director of the Office of Personnel Management shall include in the reports required by section 2014(d) of title 38, United States Code, the same type of information regarding the use of the
 * § 3112. Disabled veterans; noncompetitive appointment

39-194 O—80—pt. 1

76: QL3

Ante, p. 1131. Post, p. 1167. Ante, p. 1134.

"Retired member of the Armed Forces."

5 USC 3112.

38 USC 2014 note.

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Page:United States Statutes at Large Volume 92 Part 1.djvu/1202

 92 STAT. 1148

5 USC 2108.

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 * .|:i

PUBLIC LAW 95-454—OCT. 13, 1978 authority provided in section 3112 of title 5, United States Code (as added by paragraph (1) of this subsection), as is required by such section 2014 with respect to the use of the authority to make veterans readjustment appointments. (3) The analysis of chapter 31 of title 5, United States Code, is amended by adding at the end thereof the following new item: "3112. Disabled veterans; noncompetitive appointment.". (c) Section 3312 of title 5, United States Code, is amended— (1) by inserting " (a) " before " I n "; and (2) by adding at the end thereof the following new subsection: " (b) If an examining agency determines that, on the basis of evidence before it, a preference eligible under section 2108(3)(C) of this title who has a compensable service-connected disability of 30 percent or more is not able to fulfill the physical requirements of the position, the examining agency shall notify the Office of the determination and, at the same time, the examining agency shall notify the preference eligible of the reasons for the determination and of the r i g h t to respond, within 15 days of the date of the notification, to the Office. The Office shall require a demonstration by the appointing authority that the notification was timely sent to the preference eligible's last known address and shall, before the selection of any other person for the position, make a final determination on the physical ability of Ihe preference eligible to perform the duties of the position, taking into account any additional information provided in any such response. W h e n the Office has completed its review of the proposed disqualification on the basis of physical disability, it shall send its findings to the appointing authority and the preference eligible. The appointing authority shall comply with the findings of the Office. The functions of the Office under this subsection may not be delegated.". (d) Section 3318(b) of title 5, United States Code, is amended to read as follows: " (b)(1) If an appointing authority proposes to pass over a preference eligible on a certificate in order to select an individual who is not a preference eligible, such authority shall file written reasons with the Office for passing over the preference eligible. The Office shall make the reasons presented by the appointing authority part of the record of the preference eligible and may require the submission of more detailed information from the appointing authority in support of the passing over of the preference eligible. The Office shall determine the sufficiency or insufficiency of the reasons submitted by the appointing authority, taking into account any response received irom the preference eligible under paragraph (2) of this subsection. When the Office has completed its review of the proposed passover, it shall send its findings to the appointing authority and to the preference eligible. The appointing authority shall comply with the findings of the Office. " (2) I n the case of a preference eligible described in section 2108(3) (C) of this title who has a compensable service-connected disability of 30 percent or more, the appointing authority shall at the same time it notifies the Office under paragraph (1) of this STibsection, notify the preference eligible of the proposed passoA^er, of the reasons therefor, and of his right to respond to such reasons to the Office within 15 days of the date of such notification. The Office shall, before completing its review under paragraph (1) of this subsection, require a demonstration by the appointing authority that the passover notification was timely sent t« the preference eligible's last known address.

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Page:United States Statutes at Large Volume 92 Part 1.djvu/1203

 PUBLIC LAW 95-454—OCT. 13, 1978 "(3) A preference eligible not described in paragraph (2) of this subsection, or his representative, shall be entitled, on request, to a copy of— " (A) the reasons submitted by the appointing authority in support of the proposed passover, and "(B) the findings of the Office. "(4) In the case of a preference eligible described in paragraph (2) of this subsection, the functions of the Office under this subsection may not be delegated.". (e) Section 3502 of title 5, United States Code, is amended by striking out subsection (b) and inserting in lieu thereof the following new subsections: "(b) A preference eligible described in section 2108(3)(C) of this title who has a compensable service-connected disability of 30 percent or more and whose performance has not been rated unacceptable under a performance appraisal system implemented under chapter 43 of this title is entitled to be retained in preference to other preference eligibles. "(c) An employee who is entitled to retention preference and whose performance has not been rated unacceptable under a performance appraisal system implemented under chapter 43 of this title is entitled to be retained in preference to other competing employees.". (f) Section 3503 of title 5, United States Code, is amended by striking, out in subsection (a) and (b) "each preference eligible employee" and inserting in lieu thereof "each competing employee" both places it appears. (g) Section 3504 of title 5, United States Code, is amended— (1) by inserting " (a) " before "In"; and (2) by adding at the end thereof the following new subsection: "(b") If an examining agency determines that, on the basis of evidence before it, a preference eligible described in section 2108(3)(C) of this title who has a compensable service-connected disability of 30 percent or more is not able to fulfill the physical requirements of the position, the examining agency shall notify the Office of the determination and, at the same time, the examining agency shall notify the preference eligible of the reasons for the determination and of the right to respond, within 15 days of the date of the notification, to the Office. The Office shall require a demonstration by the appointing authority that the notification was timely sent to the preference eligible's last known address and shall, before the selection of any other person for the position, make a final determination on the physical ability of the preference eligible to perform the duties of the position, taking into account any additional information provided in the response. When the Office has completed its review of the proposed disqualification on the basis of physical disability, it shall send its findings to the appointing authority and the preference eligible. The appointing authority shall comply with the findings of the Office. The functions of the Office under this subsection may not be delegated.". (h)(1) Section 3319 of chapter 33 of title 5, United States Code, is repealed. (2) The analysis for chapter 33 of title 5, United States Code, is amended by striking out the item relating to section 3319. DUAL PAY FOR RETIRED MEMBERS OF THE UNIFORMED SERVICES

SEC. 308. (a) Section 5532 of title 5, United States Code, relating to retired officers of the uniformed services, is amended by redesignating subsections (c) and (d) as subsections (d) and (e) and by inserting after subsection (b) the following:

92 STAT. 1149

.>"•.-:

5 USC 2108. 5 USC 4301 et ^°^^' P- H^^-
 * ^9^'^'^' P- 1131.

Repeal,

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Page:United States Statutes at Large Volume 92 Part 1.djvu/1204

 92 STAT. 1150

PUBLIC LAW 95-454—OCT. 13, 1978

"(c)(1) If any member or former member of a uniformed service is receiving retired or retainer pay and is employed in a position the annual rate of basic pay for which, when combined with the member's annual rate of retired or retainer pay (reduced as provided under subsection (b) of this section), exceeds the rate of tjasic pay then cur5 USC 5316 note, rently paid for level V of the Executive Schedule, such member's retired or retainer pay shall be reduced by an amount computed under paragraph (2) of this subsection. The amounts of the reductions shall be deposited to the general fund of the Treasury of the United States. "(2) The amount of each reduction under paragraph (1) of this subsection allocable for any pay period in connection with employment in a position shall be equal to the retired or retainer pay allocable to the pay period (reduced as provided under subsection (b) of this section), except that the amount of the reduction may not result in— "(A) the amount of retired or retainer pay allocable to the pay period after being reduced, when combined with the basic pay tor the employment during the pay period, being at a rate less than the rate of basic pay then currently paid for level V of the Executive Schedule; or "(B) the amount of retired pay or retainer pay being reduced to an amount less than the amount deducted from the retired or retainer pay as a result of participation in any survivor's benefits in connection with the retired or retainer pay or veterans insurance programs.", (b) Section 5531 of title 5, United States Code is amended— (1) by striking out paragraph (1) and inserting in lieu thereof the following: "(1) 'meniber' has the meaning given such term by section 101 (23) of title 37;"; (2) by striking out the period at the end of paragraph (2) and inserting in lieu thereof "; and"; and "Retired or ^ (3) by adding at the end thereof the following new paragraph: retainer pay." "^g^ 'retired or retainer pay' means retired pay, as defined in 5 USC 8311. section 8311(3) of this title, determined without regard to subparagraphs (B) through (D) of such section 8311(3); except that such term does not include an annuity payable to an eligible beneficiary of a member or former member of a uniformed service 10 USC 1431 et under chapter 73 of title 10.". subsection (a), is amended— (1) by striking out "subsection (b) of"; (2) by striking out "or retirement" each place it appears and inserting in lieu thereof "or retainer"; (3) by striking out "a retired officer of a regular component of a uniformed service" and inserting in lieu thereof "a member or former member of a uniformed service who is receiving retired or retainer pay"; and ,• •. (4) in paragraph (1), by striking out "whose retirement was" and inserting in lieu thereof "whose retired or retainer pay is computed, in whole or in part,", (d) Section 5532(e) of title 5, United States Code, as amended by subsection (a), is amended to read as follows: "(e) The Office of Personnel Management may, during the 5-year Ante, p. 1111. period after the effective date of the Civil Service Eeform Act of 1978 authorize exceptions to the restrictions in subsections (a), (b), and (c) of this section ovA^ when necessary to meet special or emergency employment needs which result from a severe shortage of well quali-
 * «9(c) Section 5532(d) of title 5, United States Code, as amended by

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Page:United States Statutes at Large Volume 92 Part 1.djvu/1205

 PUBLIC LAW 95-454—OCT. 13, 1978

92 STAT. 1151

fied candidates in positions of medical officers which otherwise cannot be readily met. An exception granted by the office with respect to any individual shall terminate upon a break in service of 3 days or more.". (e) Section 5532(b) of title 5, United States Code, is amended by striking out "or retirement" each place it appears and inserting in lieu thcrGof 01" rct&'iiiGr' (f)(1) The heading for section 5532 of title 5, United States Code, is amended to read as follows: "§ 5532. Employment of retired members of the uniformed services; reduction in retired or retainer pay'*. (2) The item relating to section 5532 in the table of sections for chapter 55 of title 5, United States Code, is amended to read as follows: "5532. Employment of retired members of the uniformed services; reduction in retired or retainer pay.". (g)(1) Except as provided in paragraph (2) of this subsection, 5 USC 5532 note, the amendments made by this section shall apply only with respect to pay periods beginning after the effective date of this Act and only with respect to members of the uniformed services who first receive retired or retainer pay (as defined in section 5531(3) of title 5, United States Code (as amended by this section)), after the effective date of this Act. (2) Such amendments shall not apply to any individual employed in a position on the date of the enactment of this Act so long as the individual continues to hold any such position (disregarding any break in service of 3 days or less) if the individual, on that date, would have been entitled to retired or retainer pay but for the fact the individual does not satisfy any applicable age requirement. (3) The provisions of section 5532 of title 5, United States Code, as in effect immediately before the effective date of this Act, shall apply with respect to any retired officer of a regular component of the uniformed services who is receiving retired pay on or before such date, or any individual to whom paragraph (2) applies, in the same manner and to the same extent as if the preceding subsections of this section had not been enacted. CIVIL SERVICE EMPLOYMENT

INFORMATION

SEC. 309. (a) Chapter 33 of title 5, United States Code, is amended by adding at the end thereof the following new section: 5 USC 3327. "(a) The Office of Personnel Management shall provide that information concerning opportunities to participate in competitive examinations conducted by, or under authority delegated by, the Office of Personnel Management shall be made available to the employment offices of the United States Employment Service. "(b) Subject to such regulations as the Office may issue, each agency shall promptly notify the Office and the employment offices of the United States "Employment Service of— "(1) each vacant position in the agency which is in the competitive service or the Senior Executive Service and for which the agency seeks applications from persons outside the Federal service, and "(2) the period during which applications will be accepted. As used in this subsection, 'agency' means an agency as defined in sec- "Agency." tion 6102(a)(1) of this title other than an agency all the positions in 5 USC 5102. which are excepted by statute from the competitive service.".
 * § 3327. Civil service employment information

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Page:United States Statutes at Large Volume 92 Part 1.djvu/1206

 92 STAT. 1152

PUBLIC LAW 95-454—OCT. 13, 1978 (b) The table of sections for chapter 33 of title 5, United States Code, is amended by inserting after the item relating to section 3326 the following new item: "3327. Civil service employment information." MINORITY RECRUITMENT

PROGRAM

SEC. 310. Section 7151 of title 5, United States Code, is amended— (1) by striking out.the section heading and inserting in lieu thereof the following: "§7151. Antidiscrimination policy; minority recruitment program"; (2) by inserting after such section heading the following new subsection: "(a) For the purpose of this section— "Underrepres" (1) 'underrepresentation' means a situation in which the numentation." jjgj. of members of a minority group designation (determined by the Equal Employment Opportunity Commission in consultation with the Office of Personnel Management, on the basis of the policy set forth in subsection (b) of this section) within a category of civil service employment constitutes a lowei' percentage of the total number of employees within the employment category than the percentage that the minority constituted within the labor force of the United States, as determined under the most recent decennial or mid-decade census, or current population survey, under title 13, and "Category of civil " (2) 'category of civil service employment' means— service "(A) each grade of the General Schedule described in ^"jPWment," section 5104 of this title; 5 USC 5341 "(I^) 6^ch position subject to subchapter IV of chapter 53 of this title; "(C) such occupational, professional, or other groupings • ' (including occupational series) within the categories established under subparagraphs (A) and (B) of this paragraph as the Office determines appropriate."; (3) by inserting " (b)" before "It is the policy"; and (4) by adding at the end thereof the following new subsection: "(c) Not later than 180 days after the date of the enactment of the Ante, p. 1111. Civil Service Reform Act of 1978, the Office of Personnel Management shall, by regulation, implement a minority recruitment program which shall provide, to the maximum extent practicable— "(1) that each Executive agency conduct a continuing program for the recruitment of members of minorities for positions in the agency to carry out the policy set forth in subsection (b) in a manner designed to eliminate underrepresentation of minorities in the various categories of civil service employment within the Federal service, with special efforts directed at recruiting in minority communities, in educational institutions, and from other sources from which minorities can be recruited; and " (2) that the Office conduct a continuing program of— " (A) assistance to agencies in carrying, out programs under paragraph (1) of this subsection, and "(B) evaluation and oversight and such recruitment pro' grams to determine their effectiveness in eliminating such .£Olt..fcH.ic j • minority underrepresentation.

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Page:United States Statutes at Large Volume 92 Part 1.djvu/1207

 PUBLIC LAW 95-454—OCT. 13, 1978

92 STAT. 1153

"(d) Not later than 60 days after the date of the enactment of the Civil Service Reform Act of 1978, the Equal Employment Opportu- Ante, p. 1111. nity Commission shall— "(1) establish the guidelines proposed to be used in carrying Proposed out the program required under subsection (c) of this section; and guidelines. "(2) make determinations of underrepresentation which are Determinations. proposed to be used initially under such program; and "(3) transmit to the Executive agencies involved, to the Office Transmittal to of Personnel Management, and to the Congress the determinations Executive agencies. made under paragraph (2) of this subsection. " (e) Not later than January 31 of each year, the Office shall prepare Report to and transmit to each House of the Congress a report on the activities Congress. of the Office and of Executive agencies under subsection (c) of this section, including the affirmative action plans submitted under section 717 of the Civil Rig;hts Act of 1964 (42 U.S.C. 2000e-16), the personnel data file maintained by the Office of Personnel Management, and any other data necessary to evaluate the effectiveness of the program for each category of civil service employment and for each minority group designation, for the preceding fiscal year, together with recommendations for administrative or legislative action the Office considers appropriate.". TEMPORARY EMPLOYMENT

LIMITATION

SEC. 311. (a) The total number of civilian employees in the executive branch, on September 30, 1979, on September 30, 1980, and on September 30, 1981, shall not exceed the number of such employees on September 30, 1977. (b)(1) For the purpose of this section, "civilian employees in the executive branch" means all civilian employees within the executive branch of the Government (other than in the United States Postal Service or the Postal Rate Commission), whether employed on a fulltime, part-time, or intermittent basis and whether employed on a direct hire or indirect hire basis. (2)(A) Such term does not include individuals participating in special employment programs established for students and disadvantaged youth. (B) The total number of individuals participating in such programs shall not at any time exceed 60,000. (c) In applying the limitation of subsection (a) — (1) part-time civilian employees in excess of the number of part-time civilian employees in the executive branch employed on September 30, 1977, may be counted as a fraction which is determined by dividing 40 hours into the average number of hours of such employees' regularly scheduled workweek; and (2) the number of civilian employees in the executive branch on September 30, 1977, shall be determined on the basis of the number of such employees as set forth in the Monthly Report of Civilian Employment published by the Civil Service Commission. (d)(1) The provisions of this section shall not apply during a time of war or during a period of national emergency declared by the Congress or the President, (2)(A) Subject to the limitation of subparagraph (B) of this paragraph, the President may authorize employment of civilian employees in excess of the limitation of subsection (a) if he deems that such action is necessary in the public interest.

5 USC 3101 note.

"Civilian employees in the executive branch." .aVsK

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Page:United States Statutes at Large Volume 92 Part 1.djvu/1208

 92 STAT. 1154

Regulations. Termination.

PUBLIC LAW 95-454—OCT. 13, 1978

(B) The President may not, under this paragraph, increase the maximum number of civilian employees in the executive branch by more than the percentage increase of the population of the United States since September 30, 1978, as estimated by the Bureau of the Census. (e) The President shall provide that no increase occurs in the procurement of personal services by contract by reason of the enactment of this section except in cases in which it is to the financial advantage of the Government to do so. (f) The President shall prescribe regulations to carry out the purposes of this section. (g) The provisions of this section shall terminate on January 31, 1981. TITLE IV—SENIOE EXECUTIVE SERVICE GENERAL PROVISIONS

5 USC 2101a. Post, p. 1155.

Ante, p. 1147.

SEC. 401. (a) Chapter 21 of title 5, United States Code, is amended by inserting after section 2101 the following new section: "§ 2101a. The Senior Executive Service "The 'Senior Executive Service' consists of Senior Executive Service positions (as defined in section 3132(a)(2) of this title).". (b) Section 2102(a)(1) of title 5, United States Code, is amended— (1) by striking out "and" at the end of subparagraph (A); (2) by adding "and" at the end of subparagraph (B); and (3) by adding at the end thereof the following new subparagraph: "(C) positions in the Senior Executive Service;". (c) Section 2103(a) of title 5, United States Code, is amended by inserting before the period at the end thereof the following: "or the Senior Executive Service". (d) Section 2108(5) of title 5, United States Code (as amended in section 307 of this Act), is further amended— (1) by striking out the period at the end thereof and inserting in lieu thereof a semicolon; and (2) by adding at the end thereof the following: "but does not include applicants for, or members of, the Senior Executive Service.". (e) The analysis for chapter 21 of title 5, United States Code, is amended by inserting after the item relating to section 2101 the following new item: "2101a. The Senior Executive Service.". AUTHORITY FOR

Ante, p. 1147.

EMPLOYMENT

SEC. 402. (a) Chapter 31 of title 5, United States Code, is amended by inserting after section 3112 (as added by section 307(b) of this Act), the following new subchapter: "SUBCHAPTER II—THE SENIOR EXECUTIVE SERVICE

5 USC 3131.

«§ 3131. The Senior Executive Service "It is the purpose of this subchapter to establish a Senior Executive Service to ensure that the executive management of the Government of the United States is responsive to the needs, policies, and goals

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Page:United States Statutes at Large Volume 92 Part 1.djvu/1209

 PUBLIC LAW 95-454—OCT. 13, 1978

92 STAT. 1155

of the Nation and otherwise is of the highest quality. The Senior Executive Service shall be administered so as to— " (1) provide for a compensation system, including salaries, benefits, and incentives, and for other conditions of employment, designed to attract and retain highly competent senior executives; "(2) ensure that compensation, retention, and tenure are contingent on executive success which is measured on the basis of individual and organizational performance (including such factors as improvements in efficiency, productivity, quality of work or service, cost efficiency, and timeliness of performance and success in meeting equal employment opportunity goals); "(3) assure that senior executives are accountable and responsible for the effectiveness and productivity of employees under them; "(4) recognize exceptional accomplishment; "(5) enable the head of an agency to reassign senior executives to best accomplish the agency's mission; " (6) provide for severance pay, early retirement, and placement assistance for senior executives who are removed from the Senior Executive Service for nondisciplinary reasons; "(7) protexit senior executives from arbitrary or capricious actions; "(8) provide for program continuity and policy advocacy in the management of public programs; n,. / p/^ "(9) maintain a merit personnel system free of prohibited personnel practices: "(10) ensure accountability for honest, economical, and efficent Government; "(11) ensure compliance with all applicable civil service laws, rules, and regulations, including those related to equal employment opportunity, political activity, and conflicts of interest; "(12) provide for the initial and continuing systematic development of highly competent senior executives; "(13) provide for an executive system which is guided by the public interes*^ and free from improper political interference; and "(14) appoint career executives to fill Senior Executive Service positions to the extent practicable, consistent with the effective and efficient implementation of agency policies and responsibilities. «§ 3132. Definitions and exclusions 5 USC 3132. "(a) For the purpose of this subchapter— "(1) 'agency' means an Executive agency, except a Government corporation and the General Accounting Office, but does not include— "(A) any agency or unit thereof excluded from coverage by the President under subsection (c) of this section; or "(B) the Federal Bureau of TnvevStigation, the Central Intelligence Agency, the Defense Intelligence Agency, the National Security Agency, as determined by the President, an Executive agency, or unit thereof, whose principal function is the conduct of foreign intelligence or counterintelligence activities;

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Page:United States Statutes at Large Volume 92 Part 1.djvu/1210

 92 STAT. 1156

PUBLIC LAW 95-454—OCT. 13, 1978

"(2) 'Senior Executive Service position' means any position in an agency which is in GS-16, IT, or 18 of the General 5 USC 5332 note. Schedule or in level IV or V of the Executive Schedule, or an 5 USC 5315, equivalent position, which is not required to be filled by an ^^^^appointment by the President by and with the advice and consent of the Senate, and in which an employee— " (A) directs the work of an organizational unit; " (B) is held accountable for the success of one or more specific programs or projects; ' " ( ^) monitors progress toward organizational goals and periodically evaluates and makes appropriate adjustments to such goals; " (D) supervises the work of employees other than personal assistants; or " (E) otherwise exercises important policy-making, policydetermining, or other executive functions; but does not include— "(i) any position in the Foreign Service of the United •' States; "(ii) an administrative law judge position under section 3105 of this title; or " (iii) any position in the Drug Enforcement Administration which is excluded from the competitive service under section 201 of the Crime Control Act of 1976 (5 U.S.C. 5108 28use509note. note; 90 Stat. 2425); "(3) 'senior executive' means a member of the Senior Executive Service; " (4) 'career appointee' means an individual in a Senior Executive Service position whose appointment to the position or previous appointment to another Senior Executive Service position was based on approval by the Office of Personnel Management of the executive qualifications of such individual; "(5) 'limited term appointee' means an individual appointed under a nonrenewable appointment for a term of 3 years or less to a Senior Executive Service position the duties of which will expire at the end of such term; "(6) 'limited emergency appointee' means an individual appointed under a nonrenewable appointment, not to exceed 18 months, to a Senior Executive Service position established to meet .2t.l.-':>>'.•' / a bona fide, unanticipated, urgent need; "(7) 'noncareer appointee' means an individual in a Senior > Executive Service position who is not a career appointee, a limited term appointee, or a limited emergency appointee; "(8) 'career reserved position' means a position which is required to be filled by a career appointee and which is designated under subsection (b) of this section; and "(9) 'general position' means any position, other than a career reserved position, which may be filled by either a career appointee, noncareer appointee, limited emergency appointee, or limited term appointee. Criteria and "(b)(1) For the purpose of paragraph (8) of subsection (a) of regulations. this Section, the Office shall prescribe the criteria and regulations governing the desismation of career reserved positions. The criteria and regulations shall provide that a position shall be designated as a career

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Page:United States Statutes at Large Volume 92 Part 1.djvu/1211

 PUBLIC LAW 95-454—OCT. 13, 1978

92 STAT. 1157

reserved position only if the filling of the position by a career appointee is necessary to ensure impartiality, or the public's confidence in the impartiality, of the Government. The head of each agency shall be responsible for designating career reserved positions in such agency in accordance with such criteria and regulations. "(2) The Office shall periodically review general positions to determine whether the positions should be designated as career reserved. If the Office determines that any such position should be so designated, it shall order the agency to make the designation. "(3) Notwithstanding the provisions of any other law, any position to be designated as a Senior Executive Service position (except a position in the Executive Office of the President) which— "(A) is under the Executive Schedule, or for which the rate of basic pay is determined by reference to the Executive Schedule, and "(B) on the day before the date of the enactment of the Civil Service Reform Act of 1978 was specifically required under section 2102 of this title or otherwise required by law to be in the competitive service, shall be designated as a career reserved position if the position entails direct responsibility to the public for the management or operation of particular government programs or functions. "(4) Not later than March 1 of each year, the head of each agency shall publish in the Federal Register a list of positions in the agency which were career reserved positions during the preceding calendar year. "(c) An agency may file an application with the Office setting forth reasons why it, or a unit thereof, should be excluded from the coverage of this subchapter. The Office shall— "(1) review the application and stated reasons, "(2) undertake a review to determine whether the agency or unit should be excluded from the coverage of this subchapter, and "(3) upon completion of its review, recommend to the President whether the agency or unit should be excluded from the coverage of this subchapter. If the Office recommends that an agency or unit thereof be excluded from the coverage of this subchapter, the President may, on written determination, make the exclusion for the period determined by the President to be appropriate. "(d) Any agency or unit which is excluded from coverage under subsection (c) of this section shall make a sustained effort to oring its personnel system into conformity with the Senior Executive Service to the extent practicable. "(e) The Office may at any time recommend to the President that any exclusion previously granted to an agency or unit thereof under subsection (c) of this section be revoked. Upon recommendation of the Office, the President ma^ revoke, by written determination, any exclusion made under subsection (c) of this section. "(f) I f "(1) any agency is excluded under subsection (c) of this section, or "(2) any exclusion is revoked under subsection (e) of this section, the Office shall, within 30 days after the action, transmit to the Congress written notice of the exclusion or revocation.

Review.

5 USC 5311.

Ante, p. 1111.

Publication in Federal Register.

Application for exclusion coverage.

I:}.q -.itin

Exclusion or revocation.

Written notice, transmittal to Congress.

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Page:United States Statutes at Large Volume 92 Part 1.djvu/1212

 92 STAT. 1158 5 USC 3133.

Written request to OPM.

^ '

,

Ante, p. 1119. Post, p. 1175.

PUBLIC LAW 95-454—OCT. 13, 1978 " (a) During each even-numbered calendar year, each agency shall— "(1) examine its needs for Senior Executive Service positions for each of the 2 j&scal years beginning after such calendar year; and "(2) submit to the Office of Personnel Management a written request for a specific number of Senior Executive Service positions for each of such fiscal years. "(b) Each agency request submitted under subsection (a) of this section shall— "(1) be based on the anticipated type and extent of program activities and budget requests of the agency for each of the 2 fiscal years involved, and such other factors as may be prescribed from time to time by the Office; and "(2) identify, by position title, positions which are proposed to be designated as or removed from designation as career reserved positions, and set forth justifications for such proposed actions. "(c) The Office of Personnel Management, in consultation with the Office of Management and Budget, shall review the request of each agency and shall authorize, for each of the 2 fiscal years covered by requests required under subsection (a) of this section, a specific number of Senior Executive Service positions for each agency. "(d)(1) The Office of Personnel Management may, on a written request of an agency or on its own initiative, make an adjustment in the number of positions authorized for any agency. Each agency request under this paragraph shall be submitted in such form, and shall be based on such factors, as the Office shall prescribe. "(2) The total number of positions in the Senior Executive Service may not at any time during any fiscal year exceed 105 percent of the total number of positions authorized under subsection (c) of this section for such fiscal year, "(e)(1) Not later than July 1, 1979, and from time to time thereafter as the Director of the Office of Personnel Management finds appropriate, the Director shall establish, by rule issued in accordance with section 1103(b) of this title, the number of positions out of the total number of positions in the Senior Executive Service, as authorized by this section or section 413 of the Civil Service Reform Act of 1978, which are to be career reserved positions. Except as provided in paragraph (2) of this subsection, the number of positions required by this subsection to be career reserved positions shall not be less than the number of the positions then in the Senior Executive Service which, before the date of such Act, were authorized to be filled only through competitive civil service examination. "(2) The Director may, by rule, designate a number of career reserved positions which is less than the number required by paragraph (1) of this subsection only if the Director determines such lesser number necessary in order to designate as general positions one or more positions (other than positions described in section 3132(b)(3) of this title) which— "(A) involve policymaking responsibilities which require the advocacy or management of programs of the President and support of controversial aspects of such programs;
 * § 3133. Authorization of positions; authority for appointment

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Page:United States Statutes at Large Volume 92 Part 1.djvu/1213

 PUBLIC LAW 95-454—OCT. 13, 1978 "(B) involve significant participation in the major political policies of the President; or "(C) require the senior executives in the positions to serve as personal assistants of, or advisers to, Presidential appointees. The Director shall provide a full explanation for his determination in each case. " (a) During each calendar year, each agency shall— " (1) examine its needs for employment of noncareer appointees for the fiscal year beginning in the following year; and "(2) submit to the Office of Personnel Management, in accordance with regulations prescribed by the Office, a written request for authority to employ a specific number of noncareer appointees for such fiscal year. "(b) The number of noncareer appointees in each agency shall be determined annually by the Office on the basis of demonstrated need of the agency. The total number of noncareer appointees in all agencies may not exceed 10 percent of the total number of Senior Executive Service positions in all agencies. "(c) Subject to the 10 percent limitation of subsection (b) of this section, the Office may adjust the number of noncareer positions authorized for any agency under subsection (b) of this section if emergency needs arise that were not anticipated when the original authorizations were made. "(d) The number of Senior Executive Service positions in any agency which are filled by noncareer appointees may not at any time exceed the greater of— "(1) 25 percent of the total number of Senior Executive Service positions in the agency; or "(2) the number of positions in the agency which were filled on the date of the enactment of the Civil Service Reform Act of 1978 by— "(A) noncareer executive assignments under subpart F of part 305 of title 5, Code of Federal Regulations, as in effect on such date, or "(B) appointments to level IV or V of the Executive Schedule which were not required on such date to be made by and with the advice and consent of the Senate. This subsection shall not apply in the case of any agency having fewer than 4 Senior Executive Service positions. " (e) The total number of limited emergency appointees and limited term appointees in all agencies may not exceed 5 percent of the total number of Senior Executive Service positions in all agencies. "§3135. Biennial report " (a) The Office of Persomiel Management shall submit to each House of the Congress, at the time the budget is submitted by the President to the Congress during each odd-numbered calendar year, a report on the Senior Executive Service. The report shall include— "(1) the number of Senior Executive Service positions authorized for the then current fiscal year, in the aggregate and by agency, and the projected number of Senior Executive Service positions to be authorized for the next two fiscal years, in the aggregate and by agency;
 * ^§3134. Limitations on noncareer and limited appointments

92 STAT. 1159

5 USC 3134.

5 CFR 305.101 et seq.

5 USC 5315, 5316

5 USC 3135. Report to Congress.

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Page:United States Statutes at Large Volume 92 Part 1.djvu/1214

 92 STAT. 1160

• ^

Report to Congress.

5 USC 3136.

^- i ^ ' '•• '

PUBLIC LAW 95-454—OCT. 13, 1978 "(2) the authorized number of career appointees and noncareer appointees, in the agg^regate and by agency, for the then current fiscal year; "(3) the position titles and descriptions of Senior Executive Service positions desigjiated for the then current fiscal year; "(4) a description of each exclusion in effect under section 3132(c) of this title during the preceding fiscal year; "(5) the number of career appointees, limited term appointees, limited emergency appointees, and noncareer appointees, in the aggregate and by agency, employed during the preceding fiscal year; " (6) the percentage of senior executives at each pay rate, in the aggregate and by agency, employed at the end of the preceding fiscal year; "(7) the distribution and amount of performance awards, in the aggregate and by agency, paid during the preceding fiscal (8) the estimated number of career reserved positions which, during the two fiscal years following the then current fiscal year, will become general positions and the estimated number of general positions which during such two fiscal years, will become career reserved positions; and "(9) such other information regarding the Senior Executive Service as the Office considers appropriate. " (b) The Office of Personnel Management shall submit to each House of the Congress, at the time the budget is submitted to the Congress during each even-numbered calendar year, an interim report showing changes in matters required to be reported under subsection (a) of this section. «§ 3136. Regulations "The Office of Personnel Management shall prescribe regulations to carry out the purpose of this subchapter.", (b) Section 3109 of title 5, United States Code, is amended by inserting at the end thereof the following new subsection: "(c) Positions in the Senior Executive Service may not be filled under the authority of subsection (b) of this section.". (c) The analysis for chapter 31 of title 5, United States Code, is amended— (1) by striking out the heading for chapter 31 and inserting in lieu thereof the following: "CHAPTER 31—AUTHORITY FOR EMPLOYMENT

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"SUBCHAPTER I—EMPLOYMENT A U T H O R I T I E S "; and (2) by inserting at the end thereof the following: "Sec. "3131. "3132. "3133. "3134. "3135. "3136.

"SUBCHAPTER II—THE SENIOR EXECUTIVE SERVICE The Senior Executive Service. Definitions and exclusions. Authorization of positions; authority for appointment. Limitations on noncareer and limited appointments. Biennial report. Regulations.".

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Page:United States Statutes at Large Volume 92 Part 1.djvu/1215

 PUBLIC LAW 95-454—OCT. 13, 1978 EXAMINATION, CERTIFICATION, AND

92 STAT. 1161

APPOINTMENT

SEC. 403. (a) Chapter 33 of title 5, United States Code, is amended by adding at the end thereof the following new subchapter: "SUBCHAPTER VIII—APPOINTMENT, REASSIGNMENT, TRANSFER, AND DEVELOPMENT IN THE SENIOR EXECUTIVE SERVICE "§3391. Definitions "For the purpose of this subchapter, 'agency', 'Senior Executive Service position', 'senior executive', 'career appointee', 'limited term appointee', 'limited emergency appointee', 'noncareer appointee', and 'general position' have the meanings set forth in section 3132(a) of this title. "§3392. General appointment provisions "(a) Qualification standards shall be established by the head of each agency for each Senior Executive Service position in the agency— "(1) in accordance with requirements established 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 Executive Service positions authorized under section 3133 of this title may at any time be filled by individuals who did not have 5 years of current continuous service in the civil service immediately preceding their initial appointment to the Senior Executive Service, unless the President certifies to the Congress that the limitation would hinder the efficiency of the Government. In applying the preceding sentence, any break in service of 3 days or less shall be disregarded. "(c) 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 executive 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 payable 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 continue 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— " (1) to the extent provided under regulations prescribed by the Office, and "(2) so long as the appointee continues to serve under such Presidential appointment. "(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 Executive Office of the President. «§ 3393. Career appointments " (a) Each agency shall establish a recruitment program, in accordance with guidelines which shall be issued by the Office of Personnel

5 USC 3391.

Ante, p. 1155. 5 USC 3392. Qualification standards, establishment.

^«^e, p. 1158

5 USC 5316.

5 USC 3393. Recruitment program.

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Page:United States Statutes at Large Volume 92 Part 1.djvu/1216

 92 STAT. 1162

Executive resources boards, establishment.

Review boards, establishment.

Career appointees, criteria.

Probationary period requirement.

Publication in Federal Register.

5 USC 3394.

PUBLIC LAW 9 5 - 4 5 4 ^ 0 C T. 13, 1978 Management, which provides for recruitment of career appointees from— " (1) all groups of qualified individuals within the civil service; or "(2) all groups of qualified individuals whether 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. The boards shall, in accordance with merit staffing requirements established by the Office, conduct the merit staffing process for career 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 executive qualifications of candidates for initial appointment as career appointees in accordance with regulations prescribed by the Office. Of the members of each board more than one-half shall be appointed from among career appointees. Appointments to such boards shall be made on a non-partisan basis, the sole selection criterion being the professional knowledge of public management and knowledge of the appropriate occupational fields of the intended appointee. "(2) The Office shall, in consultation with the various qualification review boards, prescribe criteria for establishing executive qualifications for appointment of career appointees. The criteria shall provide for— "(A) consideration of demonstrated executive experience; "(B) consideration of successful participation in a career executive development program which is approved by the Office; and "(C) sufficient flexibility to allow for the appointment of individuals who have speciail or unique qualities which indicate a likelihood of executive success and who would not otherwise be eligible for appointment. "(d) An individual's initial appointment as a career appointee shall become final only after the individual has served a 1-year probationary period as a, career appointee. " (e) Each career appointee shall meet the executive qualifications of the position to which appointed, as determined in writing by the appointing authority. "(f) The title of each career reserved position shall be published in the Federal Register. ''§ 3394. Noncareer and limited appointments "(a) Each noncareer appointee, limited term appointee, and limited emergency appointee shall meet the qualifications of the position to which appointed, as determined in writing by the appointing authority. " (b) An individual may not be appointed as a limited term appointee or as a limited emergency appointee without the prior approval of the exercise of such appointing authority by the Office of Personnel Management.

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Page:United States Statutes at Large Volume 92 Part 1.djvu/1217

 PUBLIC LAW 95-454—OCT. 13, 1978

92 STAT. 1163

"§ 3395. Reassignment and transfer within the Senior Executive 5 USC 3395. Service " (a)(l) A career appointee in an agency— "(A) may, subject to paragraph (2) of this subsection, be reassigned to any Senior Exe<jutiv6 Service position in the same agency for which the appointee is qualified; and "(B) may transfer to a Senior Executive Service position in another agency for which the appointee is qualified, with the approval of the agency to which the appointee transfers. "(2) A career appointee may be reassigned to any Senior Executive Service position only if the career appointee receives a written notice of the reassignment at least 15 days in advance of such reassignment. "(b)(1) Notwithstanding section 3394(b) of this title, a limited emergency appointee may be reassigned to another Senior Executive Service position in the same agency established to meet a b(ma fide, unanticipated, urgent need, except that the appointee may not serve in one or more positions in such agency under such appointment in excess of 18 months. "(2) Notwithstanding section 3394(b) of this title, a limited term appointee may be reassigned to another Senior Executive Service position in the same agency the duties of which will expire at the end of a term of 3 years or less, except that the appointee may not serve in one or more positions in the agency under such appointment in excess of 3 years. "(c) A limited term appointee or a limited emergency appointee may not be appointed to, or continue to hold, a position under such an appointment if, within the preceding 48 months, the individual has served more than 36 months, in the aggregate, under any combination of such types of appointment. "(d) A noncareer appointee in an agency— "(1) may be reassigned to any general position in the agency for which the appointee is qualified; and ' '' "(2) may transfer to a general position in another agency with the approval of the agency to which the appointee transfers. "(e)(1) Except as provided in paragraph (2) of this subsection, a career appointee in an agency may not be involuntarily reassigned— "(A) within 120 days after an appointment of the head of the agency; or "(B) within 120 days after the appointment in the agency of the career appointee's most immediate supervisor who— " (i) is a noncareer appointee; and "(ii) has the authority to reassign the career appointee. "(2) Paragraph (1) of this subsection does not apply with respect to— "(A) any reassignment under section 4314(b)(3) of this title; Post, p. 1169. or "(B) any disciplinary action initiated before an appointment referred to in paragraph (1) of this subsection. "§ 3396. Development for and within the Senior Executive Service 5 USC 3396. "(a) The Office of Personnel Management shall establish programs for the systematic development of candidates for the Senior Executive j Service and for the continuing development of senior executives, or requiio agoncios to establish such programs which meet criteria prescribed by the Office.

9-194 O—80—pt. 1

77: QU

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Page:United States Statutes at Large Volume 92 Part 1.djvu/1218

 92 STAT. 1164 . y;,

.

PUBLIC LAW 95-454—OCT. 13, 1978

"(b) The Office shall assist agencies in the establishment of programs required under subsection (a) of this section and shall monitor the implementation of the programs. If the Office finds that any agency's program under subsection (a) of this section is not in compliance with the criteria prescribed under such subsection, it shall require the agency to take such corrective action as may be necessary to bring the program into compliance with the criteria. Sabbatical grant. " (c)(1) The head of an agency may grant a sabbatical to any carreer appointee for not to exceed 11 months in order to permit the appointee to engage in study or uncompensated work experience which will contribute to the appointee's development and eJ0fectiveness. A sabbatical shall not result m loss of, or reduction in, pay, leave to which the career appointee is otherwise entitled, credit for time or service, or performance or efficiency rating. The head of the agency may authorize in accordance with chapter 57 of this title such travel expenses (including 5 USC 5701. per diem allowances) as the head of the agency may determine to be essential for the study or experience. Exclusions. "(2) A sabbatical under this subsection may not be granted to any career appointee— " (A) more than once in any 10-year period; . " (^) unless the appointee has completed 7 years of service— "(i) in one or more positions in the Senior Executive 1 r, ^ Service; ^ " (ii) in one or more other positions in the civil service the level of duties and responsibilities of which are equivalent to the level of duties and responsibilities of positions in the Senior Executive Service; or " (iii) in any combination of such positions, except that not less than 2 years of such 7 years of service must be in the Senior Executive Service; and "(C) if the appointee is eligible for voluntary retirement with a right to an innnediate annuity under section 8336 of this title. Post, p. 1175. 5 USC 3373. Any period of assignment under section 3373 of this title, relating to assignments of employees to State and local governments, shall not be considered a period of service for the purpose of subparagraph (B) of this paragraph. eondition for "(3)(A) Any career appointee in an agency may be granted a sabacceptance. batical under this subsection only if the appointee agrees, as a condition of accepting the sabbatical, to serve in the civil service upon the completion of the sabbatical for a period of 2 consecutive years. "(B) Each agreement required under subparagraph (A) of this paragraph shall provide that in the event the career appointee fails to carry out the agreement (except for good and sufficient reason as determined by the head of the agency who granted the sabbatical) the appointee shall be liable to the United States for payment of all S>bii expenses (including salary) of the sabbatical. The amount shall be treated as a debt due the United States. "(d) The Office shall encourage and assist individuals to improve „ „,, their skills and increase their contribution by service in a variety of '..; j€ J agencies as well as by accepting temporary placements in State or local governments or in the private sector. 5 USC 3397. «§ 3397. Regulations "The Office of Personnel Management shall prescribe regulations to carry out the purpose of this subchapter.".

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Page:United States Statutes at Large Volume 92 Part 1.djvu/1219

 PUBLIC LAW 95-454—OCT. 13, 1978

92 STAT. 1165

(b) The analysis for chapter 33 of title 5, United States Code, is amended by inserting after the item relating to section 3385 the following: "SUBCHAPTER VIII—APPOINTMENT, REASSIGNMENT, TRANSFER, AND DEVELOPMENT IN THE SENIOR EXECUTIVE SERVICE "Sec.

"3391. "3392. "3393. "3394. "3395. "3396. "3397.

Definitions. General appointment provisions. Career appointments. Noncareer and limited appointments. Reassignment and transfer witliin the Senior Executive Service. Development for and within the Senior Executive Service. Regulations.". RETENTION PREFERENCE

SEC. 404. (a) Section 3501(b) of title 6, United States Code, is amended by striking out the period at the end thereof and inserting in lieu thereof: "or to a member of the Senior Executive Service.". (b) Chapter 35 of title 5, United States Code, is amended by adding at the end thereof the following new subchapter:

,

"SUBCHAPTER V—KEMOVAL, REINSTATEMENT, AND GUARANTEED PLACEMENT IN THE SENIOR EXECUTIVE SERVICE "§ 3591. Definitions 5 USC 3591. "For the purpose of this subchapter, 'agency', 'Senior Executive Service position', 'senior executive', 'career appointee', 'limited term appointee', 'limited emergency appointee', 'noncareer appointee', and 'general position' have the meanings set forth in section 3132(a) of this title.

Ante, p. 1155.

5 USC 3592. "(a) Except as provided in subsection (b) of this section, a career appointee may be removed from the Senior Executive Service to a civil service position outside of the Senior Executive Service— "(1) during the 1-year period of probation under section 3393 (d) of this title, or ^»te, p. 1161. "(2) at any time for less than fully successful executive performance as determined under subchapter II of chapter 43 of this title.
 * § 3592. Removal from the Senior Executive Service

Post, p. 1167.

except that in the case of a removal under paragraph (2) of this subsection the career appointee shall, at least 15 days before the removal, be entitled, upon request, to an informal hearing before an official designated by the Merit Systems Protection Board at which the career appointee may appear and present arguments, but such hearing shall not give the career appointee the right to initiate an action with the Board under section 7701 of this title, nor need the removal action be ^»te, p- 1138. delayed as a result of the granting of such hearing. "(b)(1) Except as provided in paragraph (2) of this subsection, a career appointee in an agency may not be involuntarily removed— "(A) within 120 days after an appointment of the head of the agency; or

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Page:United States Statutes at Large Volume 92 Part 1.djvu/1220

 92 STAT. 1166

PUBLIC LAW 95-454—OCT. 13, 1978

" (B) within 120 days after the appointment in the agency of the career appointee's most immediate supervisor who— " (i) is a noncareer appointee; and " (ii) has the authority to remove the career appointee. "(2) Paragraph (1) of this subsection does not apply with respect to— Post, p. 1169. "(A) any removal under section 4314(b)(3) of this title; or "(B) any disciplinary action initiated before an appointment referred to m paragraph (1) of this subsection. "(c) A limited emergency appointee, limited term appointee, or noncareer appointee may be removed from the service at any time. "§ 3593. Reinstatement in the Senior Executive Service "(a) A former career appointee may be reinstated, without regard Ante, p. 1161. to section 3393(b) and (c) of this title, to any Senior Executive Service position for which the appointee is qualified if— " (1) the appointee has successfully completed the probationary period established under section 3393(d) of this title; and "(2) the appointee left the Senior Executive Service for reasons other than misconduct, neglect of duty, malfeasance, or less than fully successful executive performance as determined under Post, p. 1167. subchapter II of chapter 43 of this title. "(b) A career appointee who is appointed by the President to any civil service position outside the Senior Executive Service and who leaves the position for reasons other than misconduct, neglect of duty, or malfeasance shall be entitled to be placed in the Senior Executive Service if the appointee applies to the Office of Personnel Management within 90 days after separation from the Presidential appointment. 5 USC 3594. "§ 3594. Guaranteed placement in other personnel systems "(a) A career appointee who was appointed from a civil service position held under a career or career-conditional appointment (or an appointment of equivalent tenure, as determined by the Office of Personnel Management) and who, for reasons other than misconduct, neglect of duty, or malfeasance, is removed from the Senior Executive Service during the probationary period under section 3393(d) of this title, shall be entitled to be placed in a civil service position (other than a Senior Executive Service position) in any agency. "(b) A career appointee— [dli q V'i. "(1) who has completed the probationary period under section 3393(d) of this title; and " (2) who is removed from the Senior Executive Service for less 7^''}U. i. *vA than fully successful executive performance as determined under subchapter II of chapter 43 of this title; shall be entitled to be placed in a civil service position (other than a Senior Executive Service position) in any agency. "(c)(1) For purposes of subsections (a) and (b) of this section— "(A) the position in which any career appointee is placed under such subsections shall be a continuing position at GS-15 or above 5 USC 5332 note. of the General Schedule, or an equivalent position, and, in the case of a career appointee referred to in subsection (a) of this section, the career appointee shall be entitled to an appointment of a tenure equivalent to the tenure of the appointment held in the position from which the career appointee was appointed;

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Page:Hockey, Canada's Royal Winter Game.djvu/31

THE SHAMROCK HOCKEY TEAM.

☘

HE history of the Shamrock Hockey Club is the briefest of any senior club in Canada. Obtaining their franchise from the old Crystals they were admitted in 1894 into the A.H.A. of Canada.

After struggling for four years against the difficulties which stand in the way of a new team that aspires to the senior championship the Shamrocks at last won the proud title and the coveted Stanley Cup.

The team which won the championship of the Dominion last winter was perhaps the most scientific combination of players that ever played the game. The names of the players of this team and their positions were as follows:—


text:
Page:United States Statutes at Large Volume 92 Part 1.djvu/1221

 PUBLIC LAW 9 5 - 4 5 4 ^ 0 C T. 13, 1978

92 STAT. 1167

" (B) any career appointee placed under subsection (a) or (b) of this section shall be entitled to receive basic pay at the highest of— " (i) the rate of basic pay in effect for the position in which placed; " (ii) the rate of basic pay in effect at the time of the placement for the position the career appointee held in the civil service immediately before being appointed to the Senior Executive Service; or " (iii) the rate of basic pay in effect for the career appointee immediately before being placed under subsection (a) or (b) of this section; and "(C) the placement of any career appointee under subsection (a) or (b) of this section may not be made to a position which would cause the separation or reduction in grade of any other employee. "(2) An employee who is receiving basic pay under paragraph (1) (B) (ii) or (iii) of this subsection is entitled to have the basic pay rate of the employee increased by 50 percent of the amount of each increase in the maximum rate of basic pay for the grade of the position in which the employee is placed under subsection (a) or (b) of this section until the rate is equal to the rate in effect under paragraph (1)(B)(i) of this subsection for the position in which the employee is placed. 5 USC 3595. "The Office of Personnel Management shall prescribe regulations to carry out the purpose of this subchapter.". (c) The chapter analysis for chapter 35 of title 5, United States Code, is amended by inserting the following new item: "SUBCHAPTER V—REMOVAL, REINSTATEMENT, AND GUARANTEED PLACEMENT IN THE SENIOR EXECUTIVE SERVICE "Sec.
 * § 3595. Regulations

"3591. "3592. "3593. "3594. "3595.

Definitions. Removal from the Senior Executive Service. Reinstatement in the Senior Executive Service. Guaranteed placement in other personnel systems. Regulations.". PERFORMANCE RATING

SEC. 405. (a) Chapter 43 of title 5, United States Code, is amended by adding at the end thereof the following: "SUBCHAPTER II—PERFORMANCE APPRAISAL IN THE SENIOR EXECUTIVE SERVICE «§ 4311. Definitions 5 USC 4311. "For the purpose of this subchapter, 'agency', 'senior executive', and 'career appointee' have the meanings set forth in section 3132(a) of this title. Ante, p. 1155. "§ 4312. Senior Executive Service performance appraisal systems 5 USC 4312. "(a) Each agency shall, in accordance with standards established by the Office of Personnel Management, develop one or more performance appraisal systems designed to—

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Page:United States Statutes at Large Volume 92 Part 1.djvu/1222

 92 STAT. 1168

Report to OPM and Congress.

5 USC 4313.

-' ,, V -

PUBLIC LAW 95-454—OCT. 13, 1978 " (1) permit the accurate evaluation of performance in any position on the basis of criteria which aie related to the position and which specify the critical elements of the position; "(2) provide for systematic appraisals of performance of senior executives; " (3) encourage excellence in performance by senior executives; and "(4) provide a basis for making eligibility determinations for retention in the Senior Executive Service and for Senior Executive Service performance awards. " (b) Each performance appraisal system established by an agency under subsection (a) of this section shall provide— "(1) that, on or before the beginning of each rating period, performance requirements for each senior executive in the agency are established in consultation with the senior executive and communicated to the senior executive; "(2) that written appraisals of performance are based on the individual and organizational performance requirements established for the rating period involved; and " (3) that each senior executive in the agency is provided a copy of the appraisal and rating under section 4314 of this title and is given an opportunity to respond in writing and have the rating reviewed by an employee in a higher executive level in the agency before the rating becomes final. "(c)(1) The Office shall review each agency's performance appraisal system under this section, and determine whether the agency performance appraisal system meets the requirements of this subchapter. "(2) The Comptroller General shall from time to time review performance appraisal systems under this section to determine the extent to which any such system meets the requirements under this subchapter and shall periodically report its findings to the Office and to each House of the Congress. "(3) If the Office determines that an agency performance appraisal system does not meet the requirements under this subchapter (including regulations prescribed under section 4315), the agency shall take such corrective action as may be required by the Office. "(d) A senior executive may not appeal any appraisal and rating under any performance appraisal system under this section. «§ 4313. Criteria for performance appraisals "Appraisals of performance in the Senior Executive Service shall be based on both individual and organizational performance, taking into account such factors as— "(1) improvements in efficiency, productivity, and quality of work or service, including any significant reduction in paperwork; "(2) cost efficiency; "(3) timeliness of performance; "(4) other indications of the effectiveness, productivity, and performance quality of the employees for whom the senior executive is responsible; and, J, ^ "(5) meeting affirmative action goals and achievement of equal employment opportunity requirements.

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