Executive Positions and Employment

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

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 existed only in

the provisionally retained FPM, which was sunset on December 31, 1994.

EFFECTIVE DATE: February 2, 1995.

FOR FURTHER INFORMATION CONTACT:

Neal Harwood at 202-606-2826.

SUPPLEMENTARY INFORMATION: On October 18, 1994, OPM issued proposed

regulations [59 FR 52459] affecting Senior Executive Service (SES),

senior-level (SL), and scientific and professional (ST) positions and

employment. The proposed regulations continued (in some cases in

modified form) certain requirements and authorities that would go out

of existence when the provisionally retained FPM was sunset on December

31, 1994, because they were not specified in other regulations or

statute. The proposed regulations also clarified certain existing

regulatory provisions and deleted out-of-date provisions.

The comment period, which was 60 days from the date of publication,

ended on December 19, 1994. Written comments were received from seven

agencies and the Senior Executives Association (SEA).

Before reviewing the comments on specific provisions, we want to

note that three agencies and SEA included comments supporting the

regulations in general. One agency wanted to substantially reduce what

was included in the regulations. SEA, on the other hand, in its

comments on specific provisions recommended in a number of places that

the regulations be made more restrictive.

As we stated in the proposed regulations, we have tried to take

into account the recommendations in the Report of the National

Performance Review to allow agencies more flexibility in managing their

personnel system, while maintaining 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.

We have tried to hold these requirements to a minimum; but as we

said in the proposed regulations ``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.''

We recognize that different parties will have different views as to

what are the basic requirements that need to be maintained. We believe

the regulations provide an appropriate balance between agency

flexibility and Governmentwide requirements. (As we pointed out in the

proposed regulations, no requirements are imposed on agencies under the

regulations that did not exist in the former FPM; and a number have

been deleted or modified.) We will continue, however, to see how these

requirements work in practice and will make necessary modifications in

the future if there are problems that arise.

Part 317--Employment in the Senior Executive Service

(1) Section 317.501, Recruitment and Selection for Initial SES

Career Appointment

Paragraph (b)(2) requires that vacancies must be included in an OPM

listing of SES vacancies for at least 14 calendar days. One agency

recommended that agencies be allowed to use a shorter period if they

had a legitimate reason, and another agency recommended not having any

minimum period. We believe the 14-day notice period is needed to assure

full and open competition and does not place an undue delay on any

agency in filling its positions.

Subsequent to publication of the regulations a question arose

whether the reannouncement of an SES vacancy after the original

announcement has closed must also be included in OPM's listing for at

least an additional 14 days. The regulations apply to all

announcements, including reannouncements.

(2) Section 317.502. Qualifications Review Board (QRB)

Certification

Paragraph (b) is revised to eliminate time limits on the submission

of QRB cases. Currently, cases must be received by OPM within 9 months

from the closing date of the vacancy announcement. The proposed

regulations would have extended the deadline to 12 months. Elimination

of the deadline for the submission of QRB cases responds to agency

requests for more flexibility to make decisions on executive

selections. Although OPM will not prescribe a deadline, we expect that

most QRB cases will be submitted within 9 months of the closing date of

the vacancy announcement. Agencies may, of course, establish internal

deadlines to facilitate timely processing of QRB cases.

Paragraph (d) clarifies 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. One agency felt that a

moratorium on QRB actions should not apply to it because of its

national security functions and because the Deputy by law exercises the

full powers of the agency head in the absence of the Secretary. The

regulatory provision give OPM authority to hold or return QRB cases,

but does not require such action. Particular situations can be

addressed with the agency involved depending on the circumstances.

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 or a successor to that position. One agency

wanted to broaden the restriction to cover substantially similar

positions. Another agency recommended eliminating the provision on the

basis that it is a disenfranchising of the right to apply and be

selected for

[[Page 6384]]

a position. The restriction is in the regulation because in this

situation there is no genuine vacancy for which to compete since the

position is currently occupied. Therefore, we do not believe it

appropriate to extend the restriction to other positions that are

vacant, even though they may be similar, or to eliminate the

restriction.

(3) Section 317.601, Limited Appointments

The section provides a pool of limited appointment authorities

equal to 2 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.

Two agencies wanted to use the pool to make appointments from

outside the Government. We have restricted the pool to career and

career-type appointees to assure that it is used appropriately and not

for noncareer or political-type appointments. As we noted in the

proposed regulations, where appropriate OPM could still give an agency

a separate quota for use in making limited appointments on its own

under specified circumstances, e.g., to make appointments to scientific

positions where there was a critical or emergency need.

(4) Section 317.901, Reassignments

Paragraph (d) states 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 following the appointment of a

new agency head or noncareer supervisor (5 U.S.C. 3395(e)).

SEA stated that under 5 U.S.C. 3395(e) advance notices should not

be issued until after the 120 days have expired. SEA argued that the

intent of the law is to assure that the noncareer supervisor has at

least 120 days to observe the performance of the career appointee

before making a reassignment decision. We noted in the proposed

regulations that 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. SEA stated that the agency could detail the employee

immediately after the moratorium expired until the notice period was

over. That still extends by up to 60 days, however, the time before an

official reassignment could be made.

Allowing the advance notice to run during the moratorium is not

new. The authority had been explicitly stated in the former FPM since

1989. We see no conflict with the statutory provision on moratoriums,

which governs when the reassignment can be effected. We want to note

that agencies are still free to wait until after the moratorium to

issue the advance notice, or to cancel a proposed reassignment before

it is effected if the notice is issued during the moratorium.

(5) Section 317.903, Details

Paragraph (b) modifies time limits on details that previously

existed in the FPM in order to reduce paperwork, provide greater

flexibility for the SES as a separate service, and protect the rights

of employees.

One agency recommended eliminating all regulations on the duration

of details. SEA, on the other hand, recommended retaining the current

provisions.

SEA argued as follows. Allowing details of SES members to

unclassified duties for up to 240 days (in lieu of the current 120

days) would permit political appointees to place career SES appointees

``on the shelf'' for the prolonged periods. Allowing non-SES employees

to be detailed to the SES noncompetitively for up to 240 days (in lieu

of the current 120 days) violates the concept of equal pay for equal

work. Requiring OPM approval of the details of non-SES employees to the

SES only if the detail exceeds 240 days (in lieu of the current 120

days) and only if the person on detail supervises other SES employees

(in lieu of also including nonsupervisory details) will encourage

agencies to use details, which involve no adjustment in pay, rather

than limited SES appointments for temporary assignments.

We understand SEA's concerns. Details, however, are a legitimate

method of temporarily staffing a position. Providing additional

flexibility in personnel operations, one of the stated goals of the

National Performance Review, does not automatically mean that agencies

will abuse their increased authority. We believe these provisions still

adequately protect employee rights. As we noted in the proposed

regulations, we believe changes we have made in the regulations on

limited SES appointments will in fact lead to greater use of those

appointments in lieu of details.

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

Professional Positions

(1) 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 criteria prescribed in the

regulations. 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.

One agency said that all the procedures should be issued as

guidance rather than incorporated in the regulations. Under 5 U.S.C.

1104, however, OPM is required to establish standards which shall apply

to the activities of any agency under delegated authority.

Two agencies specifically recommended that the requirement to use a

numerical rating scale of 100 points with 70 as passing in establishing

a civil service register for competitive appointment be deleted. They

said agencies should have the freedom to use any examining method they

deem appropriate, provided all legal requirements are met.

The procedures in the regulations for staffing senior-level

positions are based on existing statutory and regulatory provisions

that govern the selection of non-status persons for competitive service

positions. OPM is considering a number of proposed statutory and

regulatory changes in the competitive examining system to make it less

prescriptive in light of the National Performance Review

recommendations on Federal staffing. One of the proposed changes would

authorize agencies to examine for jobs using either the existing system

of ranking candidates based on numerical ratings or a new method of

placing candidates in quality groups based on qualifications (veterans

would receive preference within quality groups). Under current law,

numerical rating and ranking is required for competitive examining.

In order to simplify the regulations, however, we have deleted from

subpart D the specific provisions in the proposed regulations covering

establishment of a roster of eligibles, selection, and applicant

rights. These provisions are covered elsewhere in 5 CFR where

competitive examining for the civil service in general is discussed

(e.g., section 337.101 on using a numerical rating scale of 100,

section 332.404 on selecting from the highest three eligible on a

certificate and section 300.104 on handling applicant complaints.)

Part 359--Removal From the SES; Guaranteed Placement in Other

Personnel Systems

(1) Subpart F, Reduction in Force

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

head to delegate to an official at the Assistant

[[Page 6385]]

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 a vacant 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.

SEA commented that since the law states that the ``agency head''

shall make these determinations, there is no authority under the law

for any delegation. There is general authority in title 5 of the U.S.

Code, however, for agency heads to delegate personnel authorities.

Under 5 U.S.C. 302(b), ``the head of an agency may delegate to

subordinate officials the authority vested in him--(1) by law to take

final action on matters pertaining to the employment, direction, and

general administration of personnel under his agency * * *.''

Delegation would be prohibited only if a law governing a particular

authority specifically stated that the authority could not be

delegated, or if OPM in exercising its regulatory authority under a law

stated there could be no delegation.

SEA also wanted to have the agency head make the determinations

because it believed that an official at the Assistant Secretary level

would be subject to peer pressures that could preclude a correct

determination. Individuals at the Assistant Secretary level make many

decisions that affect managers throughout the agency (such as those

affecting budget and personnel), and we believe these officials will be

able to act in an impartial manner and protect employee rights, absent

any facts to the contrary.

Waiver of Delay in Effective Date

I find that good cause exists for making this rule effective on

February 2, 1995. The delay in the effective date of this rule is being

waived since the requirements established in the rule are not new. They

previously were contained in the provisionally retained Federal

Personnel Manual, which sunset on December 31, 1994. The regulations

need to be made effective immediately to avoid any significant break in

the application of the affected requirements.

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.

U.S. Office of Personnel Management.

James B. King,

Director.

Accordingly, OPM is amending 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.

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

follows:

Subpart B--General Provisions

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 any agency with an

executive personnel system essentially equivalent to the Senior

Executive Service (SES) may, pursuant to legislative and regulatory

authorities, enter into 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.

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:

Subpart C--Conversion to the Senior Executive Service

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).

* * * * *

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:

Subpart D--Qualifications Standards

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.

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:

Subpart E--Career Appointments

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 included in the OPM SES vacancy announcement system

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 removing 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.

* * * * *

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

[[Page 6386]]

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.

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

follows:

Subpart F--Noncareer and Limited Appointments

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 2 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,

redesignating paragraphs (a) and (b) as paragraphs (b)(1) and (b)(2)

respectively, designating the introductory text of the section as the

introductory text of paragraph (b), 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.

* * * * *

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

of paragraph (a) as paragraph (a)(1) and adding a new paragraph (a)(2)

to read as follows:

Subpart G--SES Career Appointment by Reinstatement

Sec. 317.703 Guaranteed reinstatement: 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.

* * * * *

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

for paragraph (b), designating the text of paragraph (b) as paragraph

(b)(1), adding paragraphs (b)(2) and (b)(3), and by removing paragraph

(d) to read as follows:

Subpart H--Retention of SES Provisions

Sec. 317.801 Retention of SES Provisions

* * * * *

[[Page 6387]]

(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.

* * * * *

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

to read as follows:

Subpart I--Reassignments, Transfers, and Details

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.

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

PROFESSIONAL POSITIONS

19. Part 319 is revised to read as follows:

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 The Guide to

Personnel Data Standards under the data element ``Functional

Classification.'' The guide is available for inspection at the Office

of Personnel Management library, 1900 E Street, NW., Washington DC

20415.

(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.

[[Page 6388]]

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 the 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. SL positions may be in either the competitive or

excepted service. This section only applies to appointments in the

competitive service from a civil service register. Reassignments,

promotions, transfers, and reinstatements to SL positions in the

competitive service shall be made in accordance with applicable

statutory and regulatory provisions. Employment of SL employees in the

excepted service is covered by 5 CFR, part 302.

(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 eligibility 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 and selection. Examination and selection procedures,

and rights of applicants, are subject to the same provisions in statute

and regulation that govern civil service examinations and appointments

in general.

(d) 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.

21. In subpart F, Sec. 359.601 is amended by adding paragraph

(b)(3) to read as follows:

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) * * *

[[Page 6389]]

(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.

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

paragraph (b) as paragraph (d), by adding a new paragraph (b), and by

adding paragraphs (c), and (e) to read as follows:

Subpart G--Guaranteed Placement

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.

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

read as follows:

Subpart H--Furloughs in the Senior Executive Service

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.

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

paragraph (f) to read as follows:

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

Service

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

[[Page 6390]]

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) or 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 subpart D 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 off for religious purposes under 5 U.S.C. 5550a and 5

CFR part 550, subject J.

[FR Doc. 95-2557 Filed 2-1-95; 8:45 am]

BILLING CODE 6325-01-M