[Federal Register Volume 59, Number 200 (Tuesday, October 18, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-25704]


[[Page Unknown]]

[Federal Register: October 18, 1994]


                                                   VOL. 59, NO. 200

                                          Tuesday, October 18, 1994

OFFICE OF PERSONNEL MANAGEMENT

RIN 3206-AG14

5 CFR Parts 214, 317, 319, 359, and 534

 

Executive Positions and Employment

AGENCY: Office of Personnel Management.

ACTION: Proposed rule with request for comments.

-----------------------------------------------------------------------

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