Executive Positions and Employment

SUMMARY: The Office of Personnel Management (OPM) is issuing proposed

regulations governing employment Procedures for Senior Executive

Service, senior-level, and scientific and professional positions as

part of the implementation of Federal Personnel Manual (FPM) sunset.

The regulations incorporate certain requirements that currently exist

only in the provisionally retained FPM and that would otherwise be

abolished after December 31, 1994, when the provisionally retained

material sunsets.

DATES: Comments on the proposed regulations must be received on or

before December 19, 1994.

ADDRESSES: Send or deliver written comments to Assistant Director,

Office of Executive Resources, HRDG, Room 6484, 1900 E Street NW.,

Washington, DC 20415.

FOR FURTHER INFORMATION CONTACT:

Neal Harwood at 202-606-2826.

SUPPLEMENTARY INFORMATION: These proposed regulations affect senior-

level (SL), scientific and professional (ST), and Senior Executive

Service (SES) positions and employment.

One of the recommendations of the September 1993 Report of the

National Performance Review (From Red Tape to Results: Creating a

Government that Works Better and Costs Less) Was that the Federal

Personnel Manual (FPM) should be ``sunset.'' Following consultation

with agencies and other interested parties, the Director of the Office

of Personnel Management (OPM) issued a memorandum abolishing the FPM as

of December 31, 1993. Portions of the FPM and FPM supplements, however,

were provisionally retained until December 31, 1994.

The proposed regulations would continue certain requirements and

authorities that are currently in the provisionally retained FPM

material and that would otherwise go out of existence as of December

31, 1994, because they are not specified in existing regulations or

statute. No new requirements would be imposed on agencies under the

regulations.

Decisions on what to place in the proposed regulations were based

on whether the requirement or authority was necessary to continue

existing flexibilities (e.g., delegations of authority to agencies), to

assure uniformity in executive personnel operations where needed, and/

or to protect employee rights. The proposals take into account the

recommendation in the Report of the National Performance Review for a

``corporate approach to managing executive resources.'' Under such an

approach, there are some basic features of executive personnel systems

that need to be administered uniformly on a Governmentwide basis.

The proposed regulations also clarify certain existing regulatory

provisions and delete out-of-date provisions.

Draft copies of the proposed regulations were provided agencies and

the Senior Executives Association (SEA). We received comments from nine

agencies and the SEA. Several of the agencies expressed concern about

the level of detail in the regulations and recommended that procedural

requirements be placed in some other issuance, such as the handbook on

Executive Resources Management that OPM is planning to issue. SEA, on

the other hand, while agreeing with much of what was in the draft,

expressed concerns about certain current FPM requirements that had been

modified or deleted in the regulations.

With the abolishment of the FPM, procedural requirements now have

to be in regulation or an operations manual if they are not in statute.

Our planned handbook on Executive Resources Management is not an

operations manual and will be guidance only, except where it repeats

requirements already in statute or regulation. Therefore, if something

is to be required, it must be in regulation if it does not already

exist in statute. We have tried to hold these requirements to a

minimum, but a basic regulatory framework (including certain procedural

requirements) is necessary to assure an executive personnel system that

meets statutory requirements and carries out merit system principles.

In order to help us balance NPR's streamlining and flexibility

initiatives with its call for a corporate approach to managing

executive resources, please provide specifics on why a particular

provision should or should not be included in any comments.

The proposed regulations are summarized below, along with

references to where in the provisionally retained FPM material the

provisions are currently located. In the references, ``Ch'' refers to a

chapter in the basic FPM; and ``Supp'' refers to FPM Supplement 920-1,

Operations Handbook for the Senior Executive Service.

Part 214--Senior Executive Service

(1) Section 214.203, Reporting requirement. The section is added to

require that agencies provide such data on SES positions and employees

as OPM may request, in accordance with Civil Service Rule 5.2(a).

[Supp. S14-3]

(2) Section 214.204, Interchange agreements. The section is added

to state the authority of OPM and agencies to enter into interchange

agreements between the SES and agency executive personnel systems.

[Supp. S13-5]

Part 317--Employment in the Senior Executive Service

(1) Section 317.301, Conversion coverage. Paragraph (a)(4) is

redesignated (a)(5) and new paragraph (a)(4) is added to deal with

situations where OPM makes a determination that an agency previously

excluded from the SES on the basis it did not meet the definition of

``Executive agency'' does in fact meet the definition. This would allow

the conversion provisions of the section to apply, and career and

career-type employees could convert to career SES appointments without

further competition.

(2) Section 317.401, General. Paragraph (b) is added to require

that qualifications standards be established prior to a vacancy

announcement in a merit staffing action and prior to appointment in

other cases. [Supp. S5-2a(3)]

(3) Section 317.501, Recruitment and selection for initial SES

career appointment. Paragraph (a) is revised to reference existing

merit staffing requirements in the section. Paragraph (b)(2) is revised

to require that vacancies must be included in OPM's biweekly listing of

SES vacancies for at least 14 calendar days. [Supp. S5-4b(2)(c)]

Paragraph (f) is added to state OPM's authority to review agency merit

staffing actions and direct corrective action where necessary. [Supp.

S5-4h]

(4) Section 317.502, Qualifications Review Board (ORB)

certification. Paragraph (b) provides that QRB cases must be received

by OPM within 12 months [compared with 9 months in Supp. S5-4d(3)] of

the closing date of the announcement, unless the time period is

extended by OPM. Paragraph (d) is revised to clarify OPM's authority

regarding the disposition of QRB cases when an agency head has changed

or will be changing, or when there is a Presidential transition. [Supp.

S5-4d(7)] New paragraph (e) states that OPM will not submit to a QRB

the conversion of a noncareer SES employee to a career SES appointment

in the employee's own position since there is no bona fide vacancy.

[Former FPM Letter 273-4]

(5) Section 317.503, Probationary period. Paragraphs (c) and (d)

are redesignated (d) and (e). New paragraph (c) states the conditions

for crediting service towards completion of the probationary period.

[Supp. S5-4g(5)] New paragraph (f) states the conditions when an

employee separates from the SES before completion of the probationary

period and later receives a new SES career appointment. [Supp. S5-

4g(6)]

(6) Subpart F, Noncareer and Limited Appointments. The subpart,

which now covers only limited appointments, is revised to also cover

noncareer appointments.

Sections 317.601 and 317.604 are revised to provide that agencies

may appoint or reassign noncareer appointees only with the prior

approval of OPM unless otherwise provided by OPM. [Supp. S4-3d(2) and

S5-7b(2)]

Section 317.601 also is revised to provide a pool of limited

appointment authorities equal to two percent of an agency's SES

position allocation (with a minimum of one authority for each agency)

that agencies can use without getting prior OPM approval as long as the

appointee is currently a career or career-type appointee outside the

SES. (Limited appointment authorities already approved by OPM at the

time the pool goes into effect would not be counted against the pool.)

Where the pool is not available (e.g., for appointment of an individual

from outside the Federal service or when all the pool spaces have been

used), agencies would still have to get prior OPM approval unless

otherwise provided by OPM. (Under the regulations OPM could still

authorize an individual agency to make limited appointments on its own

under specified circumstances, e.g., to bring in persons from

universities on a rotating basis.) In using the pool, agencies would

have to comply with all other statutory and regulatory provisions

affecting limited appointments, e.g., that an appointment may be made

only to a general position and that the appointee must meet the

qualifications standard for the position. The regulation provides that

OPM may suspend the pool authority if necessary, either Governmentwide

or for an individual agency (e.g., if total appointments under the pool

and as approved by OPM are nearing the statutory five percent limit on

limited appointments Governmentwide or an agency is not making

appointments in accordance with statutory and regulatory provisions).

Section 317.605 is revised to provide that a noncareer or limited

appointee may be terminated at any time (unless a limited appointee is

covered under adverse action procedures), but must be given at least a

1-day notice. [Supp. S10-6b(1)]

(7) Section 317.703, Guaranteed reinstatement: Presidential

appointees. New paragraph (a)(2) states what Presidential appointees

have to do to maintain reinstatement rights to the SES if they receive

a new Presidential appointment. [Supp. S11-5b(2)]

(8) Section 317.801, Retention of SES provisions.

Paragraph (b) is revised. The paragraph describes the procedures

under which career SES appointees may elect to retain certain SES

benefits when they take appointments at Executive Level V or higher.

New paragraph (b)(2) states that the appointing agency is responsible

for informing the appointee of the election opportunity and that the

election must be in writing. [Supp. S5-9b(2)] New paragraph (b)(3)

states that if the appointee elects to retain SES basic pay, the

appointee is eligible for locality pay and special law enforcement pay

that would otherwise be received as an SES member, in accordance with

the provisions of the Federal Employees Pay Comparability Act of 1990

(FEPCA), Public Law 101-509.

Paragraph (d), relating to the retroactive election of SES benefits

by certain former career SES appointees under Public Law 101-335 of

July 17, 1990, and Public Law 102-378 of October 2, 1992, is deleted

since any such election has already been made.

(9) Section 317.901, Reassignments.

Paragraph (d) is added to state the authority of agencies to run

15-day (nongeographic) and 60-day (geographic) advance notices on

reassignments of career SES appointees concurrently with the 120-day

moratorium on involuntary reassignments. [Supp. S5-5c(4)(b)] If the

notice could not be issued until after the moratorium, the moratorium

in effect would be extended by the length of the notice period. Note

that there is nothing in the regulations to prevent recision of a

reassignment notice once it is issued based on the executive's

performance during the remainder of the moratorium period.

We are not placing in the regulations the provision in Supp. S5-

5c(4)(c) that if a 15 or 60-day advance notice of reassignment is

issued before the 120-day moratorium began, an involuntary reassignment

may not be effected until the moratorium has ended. Agencies, however,

still may delay the reassignment until after the moratorium if they

want. Note that it would not be in accord with the moratorium provision

for a proposed agency head or noncareer supervisor to have some other

official issue a reassignment notice prior to appointment to avoid

application of the moratorium.

(10) Section 317.903, Details. Paragraph (b) on time limits has

been revised to incorporate, with certain modifications, provisions in

Supp. S5-8c. The intent of the proposals is to reduce the paperwork

currently associated with details and to provide agencies greater

flexibility in temporarily staffing SES positions, while still

recognizing that the SES is a separate service and protecting the

rights of employees.

The regulations provide that an SES employee may not be detailed to

unclassified duties for more than 240 days (currently 120 days in the

Supp.). If the detail is for more than 240 days to a position at the

GS-15 level or below, prior OPM approval must be obtained (same as in

the Supp.).

The regulations also provide that there must be competition when

detailing a non-SES employee to an SES position for more than 240 days

(currently 120 days in the Supp.). However, an employee who is eligible

for a noncompetitive career SES appointment, e.g., an employee who has

SES reinstatement eligibility or who has been certified by a QRB

following completion of an SES candidate development program, is not

subject to the competitive requirement. As currently provided in the

Supp., when competition is required agencies may use the merit

promotion procedures under 5 CFR part 335, or their SES merit staffing

procedures, although it is not necessary to open competition outside

the agency.

The regulations do not require prior OPM approval after 240 days

when detailing a non-SES employee to an SES position, as currently

provided in the Supp., unless the position to which the employee is

detailed supervises other SES positions. We anticipate that providing

agencies with a pool of limited appointment authorities under section

317.601 will make it easier for agencies to use limited appointments

rather than details when a career or career-type employee from outside

the SES is serving temporarily in an SES position.

Part 319--Employment in Senior-Level and Scientific and Professional

Positions

Part 319 currently delegates to agency heads a variety of

authorities relating to senior-level (SL) and scientific and

professional (ST) positions and employees based on criteria established

in the FPM. In order to continue the delegations following FPM sunset,

we are proposing to incorporate the criteria in the regulations. Under

5 U.S.C. 1104, OPM is required to establish standards which shall apply

to the activities of any agency under delegated authority and to

establish and maintain an oversight program to assure that activities

under delegated authorities are in accordance with merit system

principles. Delegated authorities may be redelegate by agency heads.

We also are proposing to delete current section 319.103 on

conversion to the SL and ST systems under FEPCA since all conversion

actions have already taken place.

(1) Subpart A, General. The subpart contains provisions on coverage

[Ch. 319, 2-1 and 3-1], applicability of regulatory provisions relating

to the competitive and excepted services in general [Ch. 319, 2-1e],

and reporting requirements [Ch. 319, 1-3].

(2) Subpart B, Position Allocations and Establishment. The subpart

requires agencies to receive an allocation from OPM for their SL and ST

positions in accordance with 5 U.S.C. 3104 and 5108. It delegates

authority to agencies to establish individual SL and ST positions

within their allocation in accordance with prescribed criteria. [Ch.

319, 2-2 and 3-2]

(3) Subpart C, Qualifications Requirements. The subpart delegates

authority to agencies to establish qualifications standards and to

approve the qualifications of individual appointees in accordance with

prescribed criteria. [Ch. 319, 2-4, 3-3, and A-1]

(4) Subpart D, Recruitment and Examination.

The subpart delegates authority to agencies to recruit and examine

applicants and establish civil service registers for SL positions in

the competitive service in accordance with prescribed criteria. [Ch.

319, 2-5b and A-2] The criteria implement provisions in statute (5

U.S.C. chapter 33, subchapter I) and elsewhere in the regulations for

examination, certification, and selection of individuals who do not

have status in the competitive service. These criteria include rating

applicants on a 70 to 100-point scale, with veterans preference points

(5 CFR 337.101), and applying the ``rule of three'' in selection (5 CFR

part 332, subpart D). Actions to fill SL positions in the competitive

service by reassignment, promotion, transfer, or reinstatement of

individuals with status are subject to the regulatory provisions

applicable to those actions in general (e.g., 5 CFR part 335 for

promotions).

Under 5 U.S.C. 3325, ST positions are filled without competitive

examination. The subpart provides that since the positions are not

filled by competitive examination, citizenship and probationary period

requirements are not applicable. [Ch. 319, 2-5d and 3-4d]

Part 359, Removal From the SES; Guaranteed Placement in Other Personnel

Systems

(1) Subpart F, Reduction in Force.

Section 359.601(b) is revised by adding a definition of ``agency''

in paragraph (3) as an executive department or independent

establishment. Thus for RIF purposes the entire Department of Defense

is treated as one agency, although this still allows initial

competition to be held in separate components. [Supp. S10-7a(3)]

Section 359.602(a)(2) on competitive procedures is revised to

provide that final performance ratings, not interim ratings, must be

used in determining retention standing. Ratings for more than 1 year

may be considered. [Supp. S10-7d(5)] Section 359.602(a)(4) is added to

provide certain exceptions to the use of competitive procedures when an

agency is being abolished. [Supp. S10-7d(1)(b)]

Sections 359.603 (a)(1) and (d)(2) are revised to permit the agency

head to delegate to an official at the Assistant Secretary level or

above in departments, or an equivalent official above the director of

personnel in other agencies, the authority to certify to OPM that the

agency does not have an SES position for a RIF'd employee or that a

RIF'd employee referred by OPM is not qualified for the referred

position. Current regulations do not permit any delegation. Agencies

have pointed out that sometimes it is difficult to get the agency head

to act in a timely manner because of other activities where the agency

head is involved, and they have indicated the same problem would arise

if delegation was limited to the deputy agency head. We believe the

proposed condition on the degree of delegation will allow more

efficient conduct of the RIF program while providing that

determinations are reviewed at a high enough level to assure that

employee rights are protected.

Section 359.603(a)(4) is added to state explicitly that a RIF'd

employee remains a career SES appointee during the OPM placement

period. [Supp. S10-7e(1)(f)]

Section 359.603(d)(3) is added to cover situations where an agency

cancels a position to which a RIF'd employee was referred by OPM.

[Supp. S11-3f(4)(d)]

Section 359.603(f) is revised to state that OPM placement efforts

will cease if an employee declines a reasonable offer of placement.

[Supp. S11-3c(4)]

Section 359.605 is revised to bring the notice requirements

following a RIF into accordance with those in Supp. S10-7g.

(2) Subpart G, Guaranteed Placement.

In section 359.705, new paragraph (b) provides that an employee who

is placed in another agency under the subpart is entitled to saved pay

under 5 U.S.C. 3594. [Supp. S10-8d(2)]

New Section 359.705(c) provides that the Executive Level V cap that

normally applies to General Schedule basic pay does not apply if the

employee is receiving saved pay under 5 U.S.C. 3594. Thus the employee

could save his or her full SES basic pay even if it was above the rate

of Executive Level V. [Supp. S10-8d(3)] Note, however, that there is no

provision in statute for retaining locality pay upon removal from the

SES. Therefore, the employee is entitled only to any locality pay for

the position in which placed outside the SES. If the position is in the

General Schedule, the Executive Level IV cap on combined basic pay and

locality pay in 5 U.S.C. 5304(g)(1) would be applicable.

New section 359.705(e) states the conditions under which saved pay

is terminated. This is a matter not covered in existing regulations.

The termination provisions are similar to those for termination of pay

retention in 5 CFR 536.209.

(3) Subpart H, Furlough in the SES. Section 359.803 is revised to

indicate that 22 workdays are equivalent to 30 calendar days. [Supp.

S10-9b and c]

Part 534, Subpart D, Pay and Performance Awards Under the SES

(1) Section 534.401, Definitions and setting individual basic pay.

Paragraph (f) is added to incorporate from FPM Letter 920-22 provisions

restricting the reduction in pay of career SES members to performance

and disciplinary reasons.

(2) Section 534.403 Performance awards.

Paragraph (a)(1) is revised to include eligibility criteria

currently in Supp. S9-3b.

Paragraph (a)(4) is added to state the final authority of the

agency head to determine who receives a performance award and the

amount of the award. [Supp. S9-3f]

Paragraph (c) is revised to state that the minimum and maximum

limits of 5 and 20 percent of basic pay for individual awards do not

include locality pay. Per 5 U.S.C. 5304(c)(2)(A), locality pay is

considered part of basic pay only when provided by law or regulation. 5

U.S.C. 4505a(a)(2)(B) specifically provides that the rate of basic pay

for computing performance awards outside the SES be determined without

taking into account locality pay. The proposed regulation provides the

same exclusion for the SES.

Paragraph (f) is revised to provide that if the full performance

award cannot be paid because of the Executive Level I ceiling on

aggregate compensation and the excess amount is carried over to the

next calendar year, the full award is charged against the agency's

bonus pool for the fiscal year in which the initial payment was made.

[Supp. S9-3g(2)]

(3) Section 534.405, Restrictions on premium pay and compensatory

time. This section is added. Paragraph (a) notes the statutory

prohibition on premium pay, including overtime pay, for SES members.

Paragraph (b) provides that since SES members are not eligible for

overtime pay, they also may not receive compensatory time, except for

religious purposes. [Supp. S12-1b]

E.O. 12866, Regulatory Planning and Review

This rule has been reviewed by the Office of Management and Budget

in accordance with E.O. 12866.

Regulatory Flexibility Act

I certify that this regulation will not have a significant economic

impact on a substantial number of small entities because it will only

affect Federal Government employees who are in executive positions.

List of Subjects

5 CFR Parts 214, 317, 319, and 359

Government employees.

5 CFR Part 534

Government employees, hospitals, students, wages.

Office of Personnel Management.

James B. King,

Director.

Accordingly, OPM proposes to amend 5 CFR Parts 214, 317, 319, 359,

and 534 as follows:

PART 214--SENIOR EXECUTIVE SERVICE

1. The authority citation for part 214 continues to read as

follows:

Authority: 5 U.S.C. 3132.

Subpart B--General Provisions

2. In subpart B, Sec. 214.203 and Sec. 214.204 are added to read as

follows:

Sec. 214.203 Reporting requirements.

Agencies shall report such information as may be requested by OPM

relating to positions and employees in the Senior Executive Service.

Sec. 214.204 Interchange agreements.

(a) In accordance with 5 CFR 6.7, OPM and agency with an executive

personnel system essentially equivalent to the Senior Executive Service

(SES) may, pursuant to legislative and regulatory authorities, enter an

agreement providing for the movement of persons between the SES and the

other system. The agreement shall define the status and tenure that the

persons affected shall acquire upon the movement.

(b) Persons eligible for movement must be serving in permanent,

continuing positions with career or career-type appointments. They must

meet the qualifications requirements of any position to which moved.

(c) An interchange agreement may be discontinued by either party

under such conditions as provided in the agreement.

PART 317--EMPLOYMENT IN THE SENIOR EXECUTIVE SERVICE

3. The authority citation for part 317 continues to read as

follows:

Authority: 5 U.S.C. 3392, 3393, 3393a, 3395, 3397, 3593, and

3595.

Subpart C--Conversion to the Senior Executive Service

4. In subpart C, Sec. 317.301 is amended by redesignating paragraph

(a)(4) as paragraph (a)(5) and by adding a new paragraph (a)(4) to read

as follows:

Sec. 317.301 Conversion coverage.

(a) * * *

(4) The implementation of the SES in a formerly excluded agency

when OPM determines that the agency is an ``Executive agency'' under 5

U.S.C. 3132(a)(1).

* * * * *

Subpart D--Qualifications Standards

5. In subpart D, the current paragraph in Sec. 317.401 is

designated as paragraph (a), and paragraph (b) is added to read as

follows:

Sec. 317.401 General.

* * * * *

(b) A written qualification standard must be established for a

position before any appointment is made to the position. If a position

is being filled competitively, the standard must be established before

the position is announced.

Subpart E--Career Appointments

6. In subpart E, Sec. 317.501 is amended by revising the last

sentence of paragraph (a), revising paragraph (b)(2), and by adding

paragraph (f) to read as follows:

Sec. 317.501 Recruitment and selection for initial SES career

appointment.

(a) * * * The ERB shall, in accordance with the requirements of

this section, conduct the merit staffing process for initial SES career

appointment.

(b) * * *

(2) Announcements of SES vacancies to be filled by initial career

appointment must be listed in OPM's publication of SES vacancies for at

least 14 calendar days, including the date of publication.

* * * * *

(f) OPM review. OPM may review proposed career appointments to

ensure that they comply with all merit staffing requirements and are

free of any impropriety. An agency shall take such action as OPM may

require to correct an action contrary to any law, rule, or regulation.

7. Section 317.502 is amended by revising the last sentence of

paragraph (b), revising paragraph (d), redesignating paragraph (e) as

paragraph (f), and by adding a new paragraph (e) to read as follows:

Sec. 317.502 Qualifications Review Board certification.

* * * * *

(b) * * * Requests must be received by OPM within 12 months from

the closing date of a vacancy announcement, or in the case of an SES

candidate development program, within 12 months from the date of

completion of the program, unless the time period is extended by OPM.

* * * * *

(d) OPM may determine the disposition of agency QRB requests where

the QRB has not yet acted if the agency head leaves office or announces

an intention to leave office, if the President has nominated a new

agency head, or if there is a Presidential transition.

(e) OPM will not submit to a QRB any action to convert a noncareer

SES employee to a career SES appointment in the employee's current

position or a successor to that position.

* * * * *

8. Section 317.503 is amended by removing the last sentence in

paragraph (b), redesignating paragraphs (c) and (d) as paragraphs (d)

and (e) respectively, and adding a new paragraph (c) and paragraph (f)

to read as follows:

Sec. 317.503 Probationary period.

* * * * *

(c) The following conditions apply to crediting service towards

completion of the probationary period.

(1) Time on leave with pay while in an SES position is credited.

Earned leave for which the employee is compensated by lump-sum payment

upon separation is not credited.

(2) Time in a nonpay status while in an SES position is credited up

to a total of 30 calendar days (or 22 workdays). After 30 calendar

days, the probationary period is extended by adding to it time equal to

that served in a nonpay status.

(3) Time absent on military duty or due to compensable injury is

credited upon restoration to the SES when no other break in SES service

has occurred.

(4) Time following transfer to an SES position in another agency is

credited, i.e., the individual does not have to start a new

probationary period.

* * * * *

(f) An individual who separated from the SES during the

probationary period and who has been out of the SES more than 30

calendar days must serve a new 1-year probationary period upon

reappointment and may not credit previous time in a probationary

period. In the following situations, however, there is an exception and

the individual is only required to complete the remainder of the

previously served probationary period.

(1) The individual left the SES without a break in service for a

Presidential appointment and is exercising reinstatement rights under 5

U.S.C. 3593(b).

(2) The individual left the SES without a break in service for

other civilian employment that provides a statutory or regulatory

reemployment right to the SES when no other break in service occurred.

(3) The break in SES service was the result of military duty or

compensable injury, and the time credited under paragraph (c)(3) of

this section was not sufficient to complete the probationary period.

Subpart F--Noncareer and Limited Appointments

9. In subpart F, the heading for the subpart is revised to read as

follows:

10. Section 317.601 is revised to read as follows:

Sec. 317.601 Authorization

(a) An agency may make a noncareer or limited appointment only to a

general position.

(b) Each use of a noncareer appointment authority must be approved

individually by the Office of Personnel Management, and the authority

reverts to the Office upon departure of the incumbent, unless otherwise

provided by the Office.

(c) Use of a limited appointment authority is subject to the

conditions in this paragraph.

(1) Agencies are provided a pool of limited appointment authorities

equal to two percent of their Senior Executive Service (SES) position

allocation, or one authority, whichever is greater. An agency may use

the pool to make a limited appointment only of an individual who has a

career or career-conditional appointment (or an appointment of

equivalent tenure) in a permanent civil service position outside the

SES. If necessary, the Office of Personnel Management may suspend use

of the pool authority.

(2) Each use of a limited appointment authority other than under

paragraph (c)(1) of this section must be approved individually by the

Office, and the authority reverts to the Office upon departure of the

incumbent, unless otherwise provided by the Office.

11. Section 317.602 is amended by revising the heading and removing

the first sentence in paragraph (a) to read as follows:

Sec. 317.602 Conditions of a limited appointment.

* * * * *

12. Section 317.603 is amended by revising the heading and the

first sentence to read as follows:

Sec. 317.603 Selection.

An agency may make a noncareer or limited appointment without the

use of merit staffing procedures.* * *

13. Section 317.604 is amended by revising the heading, designating

the first paragraph as paragraph (b), redesignating paragraphs (a) and

(b) as paragraphs (b)(1) and (b)(2) respectively, and by adding a new

paragraph (a) to read as follows:

Sec. 317.604 Reassignment.

(a) An agency may reassign a noncareer appointee only with the

prior approval of the Office unless otherwise provided by the Office.

* * * * *

14. Section 317.605 is amended by revising paragraphs (a) and (b)

to read as follows:

Sec. 317.605 Tenure of appointees.

(a) A noncareer or limited appointee does not acquire status within

the Senior Executive Service on the basis of the appointment.

(b) An agency may terminate a noncareer or limited appointment at

any time, unless a limited appointee is covered under 5 CFR

752.601(c)(2). The agency must give the noncareer or limited appointee

a written notice at least 1 day prior to the effective date of the

removal.

* * * * *

Subpart G--SES Career Appointment by Reinstatement

15. In subpart G, Sec. 317.703 is amended by designating the

material after the heading in paragraph (a) as paragraph (a)(1) and

adding a new paragraph (a)(2) to read as follows:

Sec. 317.703 Guaranteed reinstated: Presidential appointees.

(a) * * *

(2) If an individual is serving under a Presidential appointment

with reinstatement entitlement and receives another Presidential

appointment without a break in service between the two appointments,

the individual continues to be entitled to be reinstated to the SES

following termination of the second appointment. If there is an interim

period between the two Presidential appointments, the individual must

be reinstated as an SES career appointee before the effective date of

the second appointment to preserve reinstatement entitlement following

termination of the second appointment.

* * * * *

Subpart H--Retention of SES Provisions

16. In subpart H, Sec. 317.801 is amended by revising the heading

for paragraph (b), designating the material after the heading in

paragraph (b) as paragraph (b)(1), adding paragraphs (b)(2) and (b)(3),

and by removing paragraph (d) to read as follows:

Sec. 317.801 Retention of SES Provisions.

* * * * *

(b) Election.

* * * * *

(2) The appointing agency is responsible for advising the appointee

of the election opportunity. The election decision must be in writing.

(3) If an appointee elects to retain SES basic pay, the appointee

is entitled to receive locality-based comparability payments under 5

CFR, part 531, subpart F, if such pay is applicable to SES employees in

the locality pay area, and any applicable special pay adjustment for a

law enforcement officer under 5 CFR part 531, subpart C, even though

the appointee may be in an Executive Schedule position otherwise

excluded from such payments.

Subpart I--Reassignments, Transfers, and Details

17. In subpart I, Sec. 317.901 is amended by adding paragraph (d)

to read as follows:

Sec. 317.901 Reassignments.

* * * * *

(d) A 15 or 60-day advance notice described in paragraph (b) of

this section may be issued during the 120-day moratorium on the

involuntary reassignment of a career appointee described in paragraph

(c) of this section, but an involuntary reassignment may not be

effected until the moratorium has ended.

18. Section 317.903 is amended by revising paragraph (b)(2) and by

adding paragraphs (b)(3) and (b)(4) to read as follows:

Sec. 317.903 Details.

* * * * *

(b) * * *

(2) An agency may not detail an SES employee to unclassified duties

for more than 240 days.

(3) An agency must use competitive procedures when detailing a non-

SES employee to an SES position for more than 240 days unless the

employee is eligible for a noncompetitive career SES appointment.

(4) An agency must obtain OPM approval for a detail of more than

240 days if the detail is of:

(i) A non-SES employee to an SES position that supervises other SES

positions; or

(ii) An SES employee to a position at the GS-15 or equivalent level

or below.

19. Part 319 is revised to read as follows:

PART 319--EMPLOYMENT IN SENIOR-LEVEL AND SCIENTIFIC AND

PROFESSIONAL POSITIONS

Subpart A--General

Sec.

319.101 Coverage.

319.102 Senior-level positions.

319.103 Scientific and professional positions.

319.104 Applicable instructions.

319.105 Reporting requirements.

Subpart B--Position Allocations and Establishment

319.201 Coverage.

319.202 Allocation of positions.

319.203 Establishment of positions.

Subpart C--Qualifications Requirements

319.301 Qualifications standards.

319.302 Individual qualifications.

Subpart D--Recruitment and Examination

319.401 Senior-level positions.

319.402 Scientific and professional positions.

Authority: 5 U.S.C. 1104, 3104, 3324, 3325, 5108, and 5376.

Subpart A--General

Sec. 319.101 Coverage.

(a) This part covers senior-level (SL) and scientific and

professional (ST) positions that are classified above GS-15 and are

paid under 5 U.S.C. 5376. See 5 CFR part 534, subpart E, for pay

provisions.

(b) Positions that meet the criteria for placement in the Senior

Executive Service (SES) under 5 U.S.C. 3132(a) may not be placed in the

SL or ST system and are not covered by this part.

Sec. 319.102 Senior-level positions.

(a) SL positions are positions classified above GS-15 pursuant to 5

U.S.C. 5108 that are not covered by other pay systems (e.g. the SES and

ST systems).

(b) Positions in agencies that are excluded from 5 U.S.C. chapter

51 (Classification) under section 5102(a), or positions that meet one

of the exclusions in section 5102(c), are excluded from the SL system.

(c) SL positions in the executive branch are in the competitive

service unless the position is excepted by statute, Executive order, or

the Office of Personnel Management (OPM).

Sec. 319.103 Scientific and professional positions.

(a) ST positions are established under 5 U.S.C. 3104 to carry out

research and development functions that require the services of

specially qualified personnel.

(b) Research and development functions are defined in appendix 2 of

the Introduction to the Position Classification Standards.

(c) An ST position must be engaged in research and development in

the physical, biological, medical, or engineering sciences, or a

closely related field.

(d) ST positions are in the competitive service.

Sec. 319.104 Applicable instructions.

Provisions in statute, Executive order, or regulations that relate

in general to competitive and excepted service positions and employment

apply to positions and employment under the SL and ST systems unless

there is a specific provision to the contrary.

Sec. 319.105 Reporting requirements.

Agencies shall report such information as may be requested by OPM

relating to SL and ST positions and employees.

Subpart B--Position Allocations and Establishment

Sec. 319.201 Coverage.

This section applies to SL positions in an executive agency per 5

U.S.C. 5108 and ST positions in any agency per 5 U.S.C. 3104.

Sec. 319.202 Allocation of positions.

SL and ST positions may be established only under a position

allocation approved by OPM.

Sec. 319.203 Establishment of positions.

(a) Prior approval of OPM is not required to establish individual

SL and ST positions within an allocation, but the positions must be

established in accordance with the standards and procedures in

paragraph (b) of this section. OPM reserves the right to require the

prior approval of individual positions if the agency is not in

compliance with these standards and procedures.

(b) Before an SL or ST position may be established, an agency must:

(1) Prepare a description of the duties, responsibilities, and

supervisory relationships of the position; and

(2) Determine, consistent with published position classification

standards and guides and accepted classification principles, that the

position is properly classified above GS-15. In addition, for an ST

position an agency must determine that the position meets the

functional research and development criteria described in Sec. 319.103.

Subpart C--Qualifications Requirements

Sec. 319.301 Qualifications standards.

(a) General. Agency heads are responsible for establishing

qualifications standards in accordance with the criteria in this

section.

(1) The standard must be in writing and identify the breadth and

depth of the knowledges, skills, and abilities, or other

qualifications, required for successful performance in position.

(2) Each criterion in the standard must be job related.

(3) The standard may not include any criterion prohibited by law or

regulation.

(b) Standards for senior-level positions.

(1) The standard must be specific enough to enable applicants to be

rated and ranked according to their degree of qualifications when the

position is being filled on a competitive basis.

(2) The standard may not include a minimum length of experience or

minimum education requirement beyond that authorized for similar

positions in the General Schedule.

(c) Standards for scientific and professional positions. (1) Unless

the agency obtains the approval of OPM, the standard must provide that

the candidate have at least 3 years of specialized experience in, or

closely related to, the field in which the candidate will work. At

least 1 year of this experience must have been in planning and

executing difficult programs of national significance or planning and

executing specialized programs that show outstanding attainments in the

field of research or consultation.

(2) Agencies may require that at least 1 year of the specialized

experience must be at least equivalent to experience at GS-15.

(3) Agencies may require applicants to furnish positive evidence

that they have performed highly creative or outstanding research where

similar abilities are required in the ST position.

Sec. 319.302 Individual qualifications.

Agency heads are delegated authority to approve the qualifications

of individuals appointed to SL and ST positions. The agency head must

determine that the individual meets the qualifications standards for

the position to which appointed.

Subpart D--Recruitment and Examination

Sec. 319.401 Senior-level positions.

(a) General. This section applies to appointments from a civil

service register. It does not apply to reassignments, promotions,

transfers, and reinstatements, which shall be made in accordance with

applicable statutory and regulatory provisions.

(1) Agency heads are delegated authority to recruit and examine

applicants for SL positions in the competitive service, establish

competitor inventories, and issue certificates of eligibles in

conformance with the requirements of this section, other applicable

regulations, and statute.

(2) Agencies shall take such action as OPM may require to correct

an action taken under delegated authority.

(3) Delegated authority may be terminated or suspended at any time

by OPM for reasons such as, but not limited to:

(i) Evidence of unequal treatment of candidates; or

(ii) Identifiable merit system abuses.

(b) Recruitment. (1) A recruiting plan, with appropriate emphasis

on affirmative recruitment, must be developed and followed.

(2) Vacancy announcements must remain open for a minimum of 14

calendar days. The closing date may not be a nonworkday.

(3) State Job Service offices must be notified of the vacancy in

accordance with 5 CFR 330.102. Publication in OPM's listing of Senior

Executive Service and other executive vacancies, which is provided the

offices, will satisfy this requirement.

(c) Evaluation of applicants. (1) Rating factors must be job-

related and based on competence and fitness.

(2) The qualification standard must be applied impartially to all

applicants.

(3) Bona fide consideration must be given to all applications

received from eligible applicants.

(4) All eligible applicants must be rated on the same basis.

(5) Numerical ratings must be used unless the total number of

eligible applicants is three or fewer and all are in the same category,

i.e., veterans or nonveterans.

(6) The raw score for eligible applicants must be converted to an

earned rating on a scale of 100 points, with the lowest passing score

set at 70 points.

(7) Five or ten points must be added to the earned rating of each

eligible applicant who meets the requirements for veteran preference.

(d) Establishment of a roster of eligibles. (1) Each eligible

applicant is entered on the roster according to the final numerical

rating. A preference eligible is listed ahead of a nonpreference

eligible with the same rating. A preference eligible who has a

compensable service-connected disability of 10 percent is listed ahead

of other eligibles without this kind of preference unless the vacancy

is a scientific or professional position where there is a minimum

education requirement.

(2) Applicants are placed on the selection certificate in the order

of their ranking on the roster of eligibles.

(e) Selection. (1) Selection must be from among the top three

candidates on the selection roster who are available for appointment.

(2) The selecting official may not pass over an eligible with

veteran preference to appoint an eligible without preference, or object

to any eligible, unless the action is approved by a designated agency

official. OPM, however, retains the final approval authority on:

(i) Objections or passovers based on suitability considerations.

(ii) Objections or passovers based on medical consideration of

preference eligibles with a compensable service-connected disability of

30 percent or more; and

(iii) Objections based on qualifications which would result in the

passover of a preference eligible with a compensable service-connected

disability of 30 percent or more.

(f) Applicant rights. (1) Applicants upon request must be given

their numerical score and their relative position on the certificate.

They also may have access to qualification questionnaires or reports of

qualification investigations about themselves, except for information

that would identify confidential sources.

(2) Applicant appeals, grievances, and complaints are subject to

the provisions of 5 CFR 300.104.

(g) Records. (1) Agencies must maintain records sufficient to allow

reconstruction of the merit staffing process.

(2) Records must be kept for 2 years after an appointment, or, if

no appointment is made, for 2 years after the closing date of the

vacancy announcement.

Sec. 319.402 Scientific and professional positions.

(a) ST positions are filled without competitive examination under 5

U.S.C. 3325.

(b) ST positions are not subject to the citizenship requirements in

5 CFR part 338, subpart A. Agencies, however, must observe any

restrictions on the employment of noncitizens in applicable

appropriations acts.

(c) ST employees acquire competitive status immediately upon

appointment. They are not required to serve a probationary or trial

period.

PART 359--REMOVAL FROM THE SENIOR EXECUTIVE SERVICE; GUARANTEED

PLACEMENT IN OTHER PERSONNEL SYSTEMS

20. The authority citation for part 359 continues to read as

follows:

Authority: 5 U.S.C. 1302 and 3596, unless otherwise noted.

Subpart F--Removal of Career Appointees as a Result of Reduction in

Force

Sec. 359.601 General.

* * * * *

(b) * * *

(3) Agency in this subpart means an executive department or an

independent establishment.

* * * * *

22. Section 359.602 is amended by adding a sentence at the end of

paragraph (a)(2) and by adding a new paragraph (a)(4) to read as

follows:

Sec. 359.602 Agency reductions in force.

(a) * * *

(2) * * * When performance ratings are used, they shall be the

final ratings under 5 CFR part 430, subpart C.

* * * * *

(4) Competitive procedures are not required if an agency is being

abolished, without a transfer of functions, and all SES appointees will

be separated at the same time or within 3 months of abolishment.

* * * * *

23. Section 359.603 is amended by revising the last sentence in

paragraph (a)(1), adding a new paragraph (a)(4), revising the last

sentence in paragraph (d)(2), adding paragraph (d)(3), and by revising

paragraph (f) to read as follows:

Sec. 359.603 OPM priority placement.

(a) * * *

(1) * * * This certification may not be delegated below the

Assistant Secretary level in a department, or an equivalent level above

the director of personnel in other agencies.

* * * * *

(4) An individual remains a career SES appointee in his or her

agency during the OPM placement period.

* * * * *

(d) * * *

(2) * * * The response may not be delegated below the Assistant

Secretary level in a department, or an equivalent level above the

director of personnel in other agencies.

(3) If an agency cancels a position while a referral to the

position is pending, the appointee will be entitled to priority

consideration for the position if it or a successor position is

reestablished in the SES within 1 year of the cancellation date and the

appointee has not been placed in another SES position.

* * * * *

(f) Declination by employee. If a career appointee declines a

reasonable offer of placement, OPM's placement efforts will cease. The

appointee may be removed from the SES at the expiration of the agency

notice period.

24. Section 359.605 is revised to read as follows:

Sec. 359.605 Notice Requirements.

(a) Each career appointee subject to removal under Sec. 359.604(b)

is entitled to a specific, written notice at least 45 calendar days

before the effective date of the removal. The notice shall state, as a

minimum--

(1) The action to be taken and its prospective effective date;

(2) The nature of the competition, including the appointee's

competitive area, if less than the agency, and standing on the

retention register;

(3) The place where the appointee may inspect the regulations and

records pertinent to the action;

(4) Placement rights within the agency and through OPM, including

how the employee can apply for OPM placement assistance; and

(5) The appointee's appeal rights, including the time limit for

appeal and the location of the Merit Systems Protection Board office to

which an appeal should be sent.

(b) A career appointee who has received a notice under paragraph

(a) of this section is entitled to a second notice in writing at least

1 day before removal from the SES. The notice shall state, as a

minimum--

(1) The basis for the removal, i.e., 5 U.S.C. 3595(b)(5) if the

basis is expiration of the 45-day OPM placement period, or 5 U.S.C.

3595(b)(4) if the basis is declination of a reasonable offer of

placement, in which case identify the position offered and the date on

which it was declined;

(2) The effective date of the removal;

(3) Placement rights outside the SES and, when applicable, the

appointee's eligibility for discontinued service retirement in lieu of

placement; and

(4) Reminder of the appointee's appeal rights.

Subpart G--Guaranteed Placement

25. In subpart G, Sec. 359.705 is amended by redesignating

paragraph (b) as paragraph (d) and by adding new paragraphs (b), (c),

and (e) to read as follows:

Sec. 359.705 Pay.

* * * * *

(b) An employee who is placed under this subpart in a position

outside the SES in another agency is entitled to receive basic pay

under the provisions of this section.

(c) An employee who is placed under this subpart in a General

Schedule position is not subject to the limitation on General Schedule

basic pay in 5 U.S.C. 5303(f) of level V of the Executive Schedule. The

employee is subject, however, to the limitation on General Schedule

basic pay plus locality-based comparability payments in 5 U.S.C.

5304(g)(1) of level IV of the Executive Schedule.

* * * * *

(e) Pay received under this section shall terminate if:

(1) The employee has a break in service of 1 workday or more; or

(2) The employee is demoted based on conduct or unacceptable

performance or at the employee's request.

26. The authority citation for subpart H of part 359 continues to

read as follows:

Authority: 5 U.S.C. 3133 and 3136.

Subpart H--Furloughs in the Senior Executive Service

27. Section 359.803 is amended by revising the first sentence to

read as follows:

Sec. 359.803 Competition.

Any furlough for more than 30 calendar days, or for more than 22

workdays if the furlough does not cover consecutive calendar days,

shall be made under competitive procedures established by the agency. *

* *

PART 534--PAY UNDER OTHER SYSTEMS

28. The authority citation for part 534 is revised to read as

follows:

Authority: 5 U.S.C. 1104, 5307, 5351, 5352, 5353, 5376, 5383,

5384, 5385, 5541, and 5550a.

Subpart D--Pay and Performance Awards Under the Senior Executive

Service

29. Section 534.401 is amended by revising paragraph (c)(3) and

paragraph (f) to read as follows:

Sec. 534.401 Definitions and setting individual basic pay.

* * * * *

(c) * * *

(3) An appointing authority may lower the pay for a senior

executive only one rate at the time of an adjustment. Restrictions on

reducing pay of career senior executives are in paragraph (f) of this

section.

* * * * *

(f) Restrictions on reducing pay of career senior executives. (1)

The ES rate of a career senior executive may be reduced involuntarily

in the appointee's agency or upon a transfer of function to another

agency only:

(i) For performance reasons, i.e., the executive has received a

less than fully successful performance rating under 5 CFR part 430,

subpart C, or has been conditionally recertified or not recertified

under 5 CFR 317.504; or

(ii) As a disciplinary action resulting from conduct related

activity, e.g., misconduct, neglect of duty, or malfeasance.

(2) If the pay reduction is for performance reasons, the agency

shall provide the executive at least 15 days' advance written notice.

(3) If the pay reduction is for disciplinary reasons, the agency

shall:

(i) Provide the executive at least 30 days' advance written notice;

(ii) Provide a reasonable time, but not less than 7 days, for the

executive to answer orally and in writing and to furnish affidavits and

other documentary evidence in support of the answer;

(iii) Allow the executive to be represented by an attorney or other

representative; and

(iv) Provide the executive a written decision and specific reasons

therefor at the earliest practicable date.

30. Section 534.403 is amended by revising paragraph (a)(1),

redesignating paragraph (a)(2) as paragraph (a)(3), adding new

paragraphs (a)(2) and (a)(4), adding a sentence at the end of paragraph

(c), and by adding a sentence at the end of paragraph (f) to read as

follows:

Sec. 534.403 Performance awards.

(a) * * *

(1) To be eligible for an award, the individual must have been an

SES career appointee as of the end of the performance appraisal period;

and the individual's most recent performance rating of record under

part 430, subpart C, of this chapter for the appraisal period must have

been ``Fully Successful'' or higher.

(2) Individuals eligible for a performance award include:

(i) A former SES career appointee who elected to retain award

eligibility under 5 CFR part 317, subpart H. If the salary of the

individual is above the ES-6 pay rate, the ES-6 rate is used for

crediting the agency award pool under paragraph (b) of this section and

the amount the individual may receive under paragraph (c) of this

section.

(ii) A reemployed annuitant with an SES career appointment.

(iii) An SES career appointee who is on detail. If the detail is to

another agency, eligibility is in the individual's official employing

agency, i.e., the agency from which detailed. If the appointee is on a

reimbursable detail, the agency to which the appointee is detailed may

reimburse the employing agency for some or all of any award, as agreed

upon by the two agencies; but the reimbursement does not affect the

award pool for either agency as calculated under paragraph (b) of this

section.

* * * * *

(4) The agency head must consider the recommendations of the

Performance Review Board (PRB), but the agency head has the final

authority as to who is to receive a performance award and the amount of

the award.

* * * * *

(c) * * * The rate of basic pay does not include locality-based

comparability payments under 5 U.S.C. 5304 and 5 CFR part 531, subpart

F, or special law enforcement adjustments under section 404 of the

Federal Employees Pay Comparability Act of 1990 and 5 CFR part 531,

subpart C.

* * * * *

(f) * * * The full performance award, however, is charged against

the agency bonus pool under paragraph (b) of this section for the

fiscal year in which the initial payment was made.

31. Section 534.405 is added to read as follows:

Sec. 534.405 Restrictions on premium pay and compensatory time.

(a) Under 5 U.S.C. 5541(2)(xvi) and 5 CFR 550.101(b)(18), members

of the Senior Executive Service (SES) are excluded from premium pay,

including overtime pay.

(b) Since SES members are not eligible for overtime pay, they also

are not eligible for compensatory time in lieu of overtime pay for work

performed as an SES member. SES members are eligible, however, for

compensatory time earned for religious purposes under 5 U.S.C. 5550a

and 5 CFR part 550, subpart J.

[FR Doc. 94-25704 Filed 10-17-94; 8:45 am]

BILLING CODE 6325-01-M