[Federal Register Volume 60, Number 22 (Thursday, February 2, 1995)]
[Rules and Regulations]
[Pages 6383-6390]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-2557]



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  Federal Register / Vol. 60, No. 22 / Thursday, February 2, 1995 / 
Rules and Regulations  


[[Page 6383]]


OFFICE OF PERSONNEL MANAGEMENT

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

RIN 3206-AG14


Executive Positions and Employment

AGENCY: Office of Personnel Management.

ACTION: Final rule.

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

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regulatory provisions and deleted out-of-date provisions.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