<DOC>
[107 House Committee Prints]
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[DOCID: f:70524.wais]
107th Congress
1st Session COMMITTEE PRINT
_______________________________________________________________________
TITLE 5, UNITED STATES CODE
Government Organization
and Employees
__________
prepared by the
COMMITTEE ON GOVERNMENT REFORM
HOUSE OF REPRESENTATIVES
[GRAPHIC] [TIFF OMITTED] TONGSEAL.004
MAY 2001
Printed for the use of the
Committee on Government Reform
Available via the World Wide Web: http://www.gpo.gov/congress/house
http://www.house.gov/reform
---------
U.S. GOVERNMENT PRINTING OFFICE
70-524 WASHINGTON : 2001
For sale by the Superintendent of Documents, U.S. Government Printing
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Internet: bookstore.gpo.gov Phone: (202) 512-1800 Fax: (202) 512-2250
Mail: Stop SSOP, Washington, DC 20402-0001
COMMITTEE ON GOVERNMENT REFORM
DAN BURTON, Indiana, Chairman
BENJAMIN A. GILMAN, New York HENRY A. WAXMAN, California
CONSTANCE A. MORELLA, Maryland TOM LANTOS, California
CHRISTOPHER SHAYS, Connecticut MAJOR R. OWENS, New York
ILEANA ROS-LEHTINEN, Florida EDOLPHUS TOWNS, New York
JOHN M. McHUGH, New York PAUL E. KANJORSKI, Pennsylvania
STEPHEN HORN, California PATSY T. MINK, Hawaii
JOHN L. MICA, Florida CAROLYN B. MALONEY, New York
THOMAS M. DAVIS, Virginia ELEANOR HOLMES NORTON, Washington,
MARK E. SOUDER, Indiana DC
JOE SCARBOROUGH, Florida ELIJAH E. CUMMINGS, Maryland
STEVEN C. LaTOURETTE, Ohio DENNIS J. KUCINICH, Ohio
BOB BARR, Georgia ROD R. BLAGOJEVICH, Illinois
DAN MILLER, Florida DANNY K. DAVIS, Illinois
DOUG OSE, California JOHN F. TIERNEY, Massachusetts
RON LEWIS, Kentucky JIM TURNER, Texas
JO ANN DAVIS, Virginia THOMAS H. ALLEN, Maine
TODD RUSSELL PLATTS, Pennsylvania JANICE D. SCHAKOWSKY, Illinois
DAVE WELDON, Florida WM. LACY CLAY, Missouri
CHRIS CANNON, Utah (VACANCY)
ADAM H. PUTNAM, Florida (VACANCY)
C.L. ``BUTCH'' OTTER, Idaho ------
EDWARD L. SCHROCK, Virginia BERNARD SANDERS, Vermont
(VACANCY) (Independent)
Kevin Binger, Staff Director
Daniel R. Moll, Deputy Staff Director
David A. Kass, Deputy Counsel and Parliamentarian
Robert A. Briggs, Chief Clerk
Phil Schiliro, Minority Staff Director
------
Subcommittee on the Civil Service
JOE SCARBOROUGH, Florida, Chairman
ASA HUTCHINSON, Arkansas ELIJAH E. CUMMINGS, Maryland
CONSTANCE A. MORELLA, Maryland ELEANOR HOLMES NORTON, Washington,
JOHN L. MICA, Florida DC
DAN MILLER, Florida THOMAS H. ALLEN, Maine
Ex Officio
DAN BURTON, Indiana HENRY A. WAXMAN, California
Garry Ewing, Staff Director
Jennifer Hemingway, Deputy Staff Director
Miguel Serrano, Counsel
Scott Sadler, Clerk
Tania Shand, Minority Professional Staff Member
NOTE
This compilation of title 5, United States Code, relating
to government organization and employees, includes amendments
made to that title through Public Law 106-580 (December 31,
2000).
For changes to any provision of title 5, United States
Code, after the closing date of this publication (December 31,
2000), see the United States Code Classification Tables
published by the Office of the Law Revision Counsel of the
House of Representatives at http://uscode.house.gov/uscct.htm.
(iii)
TABLE OF CONTENTS *
-----------
PART I--THE AGENCIES GENERALLY
Chapter 1--Organization
Sec.
101. Executive departments.
---------------------------------------------------------------------------
* Included for the convenience of the reader. It is not part of
title 5, United States Code.
---------------------------------------------------------------------------
102. Military departments.
103. Government corporation.
104. Independent establishment.
105. Executive agency.
Chapter 3--Powers
301. Departmental regulations.
302. Delegation of authority.
303. Oaths to witnesses.
304. Subpenas.
305. Systematic agency review of operations.
306. Strategic plans.
Chapter 5--Administrative Procedure
SUBCHAPTER I--GENERAL PROVISIONS
500. Administrative practice; general provisions.
501. Advertising practice; restrictions.
502. Administrative practice; Reserves and National Guardsmen.
503. Witness fees and allowances.
504. Costs and fees of parties.
SUBCHAPTER II--ADMINISTRATIVE PROCEDURE
551. Definitions.
552. Public information; agency rules, opinions, orders, records, and
proceedings.
552a. Records maintained on individuals.
552b. Open meetings.
553. Rule making.
554. Adjudications.
555. Ancillary matters.
556. Hearings; presiding employees; powers and duties; burden of proof;
evidence; record as basis of decision.
557. Initial decisions; conclusiveness; review by agency; submissions
by parties; contents of decisions; record.
558. Imposition of sanctions; determination of applications for
licenses; suspension, revocation, and expiration of licenses.
559. Effect on other laws; effect of subsequent statute.
SUBCHAPTER III--NEGOTIATED RULEMAKING PROCEDURE
561. Purpose.
562. Definitions.
563. Determination of need for negotiated rulemaking committee.
564. Publication of notice; applications for membership on committees.
565. Establishment of committee.
566. Conduct of committee activity.
567. Termination of committee.
568. Services, facilities, and payment of committee member expenses.
569. Encouraging negotiated rulemaking.
570. Judicial review.
570a. Authorization of appropriations.
SUBCHAPTER IV--ALTERNATIVE MEANS OF DISPUTE RESOLUTION IN THE
ADMINISTRATIVE PROCESS
571. Definitions.
572. General authority.
573. Neutrals.
574. Confidentiality.
575. Authorization of arbitration.
576. Enforcement of arbitration agreements.
577. Arbitrators.
578. Authority of the arbitrator.
579. Arbitration proceedings.
580. Arbitration awards.
581. Judicial review.
582. [Repealed.]
583. Support services.
584. Authorization of appropriations.
SUBCHAPTER V--ADMINISTRATIVE CONFERENCE OF THE UNITED STATES
591. Purpose.
592. Definitions.
593. Administrative Conference of the United States.
594. Powers and duties of the Conference.
595. Organization of the Conference.
596. Authorization of appropriations.
Chapter 6--The Analysis of Regulatory Functions
601. Definitions.
602. Regulatory agenda.
603. Initial regulatory flexibility analysis.
604. Final regulatory flexibility analysis.
605. Avoidance of duplicative or unnecessary analyses.
606. Effect on other law.
607. Preparation of analyses.
608. Procedure for waiver or delay of completion.
609. Procedures for gathering comments.
610. Periodic review of rules.
611. Judicial review.
612. Reports and intervention rights.
Chapter 7--Judicial Review
701. Application; definitions.
702. Right of review.
703. Form and venue of proceeding.
704. Actions reviewable.
705. Relief pending review.
706. Scope of review.
Chapter 8--Congressional Review of Agency Rulemaking
801. Congressional review.
802. Congressional disapproval procedure.
803. Special rule on statutory, regulatory, and judicial deadlines.
804. Definitions.
805. Judicial review.
806. Applicability; severability.
807. Exemption for monetary policy.
808. Effective date of certain rules.
Chapter 9--Executive Reorganization
901. Purpose
902. Definitions.
903. Reorganization plans.
904. Additional contents of reorganization plan.
905. Limitation on powers.
906. Effective date and publication of reorganization plans.
907. Effect on other laws, pending legal proceedings, and unexpended
appropriations.
908. Rules of Senate and House of Representatives on reorganization
plans.
909. Terms of resolution.
910. Introduction and reference of resolution.
911. Discharge of committee considering resolution.
912. Procedure after report or discharge of committee; debate; vote on
final passage.
PART II--CIVIL SERVICE FUNCTIONS AND RESPONSIBILITIES
Chapter 11--Office of Personnel Management
1101. Office of Personnel Management.
1102. Director; Deputy Director; Associate Directors.
1103. Functions of the Director.
1104. Delegation of authority for personnel management.
1105. Administrative procedure.
Chapter 12--Merit Systems Protection Board, Office of Special Counsel,
and Employee Right of Action
SUBCHAPTER I--MERIT SYSTEMS PROTECTION BOARD
1201. Appointment of members of the Merit Systems Protection Board.
1202. Term of office; filling vacancies; removal.
1203. Chairman; Vice Chairman.
1204. Powers and functions of the Merit Systems Protection Board.
1205. Transmittal of information to Congress.
1206. Annual report.
1207. [Repealed]
1208. [Repealed]
SUBCHAPTER II--OFFICE OF SPECIAL COUNSEL
1211. Establishment.
1212. Powers and functions of the Office of Special Counsel.
1213. Provisions relating to disclosures of violations of law, gross
mismanagement, and certain other matters.
1214. Investigation of prohibited personnel practices; corrective
action.
1215. Disciplinary action.
1216. Other matters within the jurisdiction of the Office of Special
Counsel.
1217. Transmittal of information to Congress.
1218. Annual report.
1219. Public information.
SUBCHAPTER III--INDIVIDUAL RIGHT OF ACTION IN CERTAIN REPRISAL CASES
1221. Individual right of action in certain reprisal cases.
1222. Availability of other remedies.
Chapter 13--Special Authority
1301. Rules.
1302. Regulations.
1303. Investigations; reports.
1304. Loyalty investigations; reports; revolving fund.
1305. Administrative law judges.
1306. Oaths to witnesses.
1307. Minutes.
Chapter 15--Political Activity of Certain State and Local Employees
1501. Definitions.
1502. Influencing elections; taking part in political campaigns;
prohibitions; exceptions.
1503. Nonpartisan candidacies permitted.
1504. Investigations; notice of hearing.
1505. Hearings; adjudications; notice of determinations.
1506. Orders; withholding loans or grants; limitations.
1507. Subpenas and depositions.
1508. Judicial review.
PART III--EMPLOYEES
SUBPART A--GENERAL PROVISIONS
Chapter 21--Definitions
2101. Civil service; armed forces; uniformed services.
2101a. The Senior Executive Service.
2102. The competitive service.
2103. The excepted service.
2104. Officer.
2105. Employee.
2106. Member of Congress.
2107. Congressional employee.
2108. Veteran; disabled veteran; preference eligible.
2109. Air traffic controller; Secretary.
Chapter 23--Merit System Principles
2301. Merit system principles.
2302. Prohibited personnel practices.
2303. Prohibited personnel practices in the Federal Bureau of
Investigation.
2304. Responsibility of the General Accounting Office.
2305. Coordination with certain other provisions of law.
Chapter 29--Commissions, Oaths, Records, and Reports
SUBCHAPTER I--COMMISSIONS, OATHS, AND RECORDS
2901. Commission of an officer.
2902. Commission; where recorded.
2903. Oath; authority to administer.
2904. Oath; administered without fees.
2905. Oath; renewal.
2906. Oath; custody.
SUBCHAPTER II--REPORTS
2951. Reports to the Office of Personnel Management.
2952. Time of making annual reports.
2953. Reports to Congress on additional employee requirements.
2954. Information to committees of Congress on request.
SUBPART B--EMPLOYMENT AND RETENTION
Chapter 31--Authority for Employment
SUBCHAPTER I--EMPLOYMENT AUTHORITIES
3101. General authority to employ.
3102. Employment of personal assistants for handicapped employees,
including blind and deaf employees.
3103. Employment at seat of Government only for services rendered.
3104. Employment of specially qualified scientific and professional
personnel.
3105. Appointment of administrative law judges.
3106. Employment of attorneys; restrictions.
3107. Employment of publicity experts; restrictions.
3108. Employment of detective agencies; restrictions.
3109. Employment of experts and consultants; temporary or intermittent.
3110. Employment of relatives; restrictions.
3111. Acceptance of volunteer service.
3112. Disabled veterans; noncompetitive appointment.
3113. Restriction on reemployment after conviction of certain crimes.
SUBCHAPTER II--THE SENIOR EXECUTIVE SERVICE
3131. The Senior Executive Service.
3132. Definitions and exclusions.
3133. Authorization of positions; authority for appointment.
3134. Limitations on noncareer and limited appointments.
3135. [Repealed.]
3136. Regulations.
SUBCHAPTER III--THE FEDERAL BUREAU OF INVESTIGATION AND DRUG
ENFORCEMENT ADMINISTRATION SENIOR EXECUTIVE SERVICE
3151. The Federal Bureau of Investigation and Drug Enforcement
Administration Senior Executive Service.
3152. Limitation on pay.
SUBCHAPTER IV--TEMPORARY ORGANIZATIONS ESTABLISHED BY LAW OR EXECUTIVE
ORDER
3161. Employment and compensation of employees.
Chapter 33--Examination, Selection, and Placement
SUBCHAPTER I--EXAMINATION, CERTIFICATION, AND APPOINTMENT
3301. Civil service; generally.
3302. Competitive service; rules.
3303. Competitive service; recommendations of Senators or
Representatives.
3304. Competitive service; examinations.
3304a. Competitive service; career appointment after 3 years' temporary
service.
3305. Competitive service; examinations; when held.
3306. [Repealed.]
3307. Competitive service; maximum-age entrance requirements;
exceptions.
3308. Competitive service; examinations; educational requirements
prohibited; exceptions.
3309. Preference eligibles; examinations; additional points for.
3310. Preference eligibles; examinations; guards, elevator operators,
messengers, and custodians.
3311. Preference eligibles; examinations; crediting experience.
3312. Preference eligibles; physical qualifications; waiver.
3313. Competitive service; registers of eligibles.
3314. Registers; preference eligibles who resigned.
3315. Registers; preference eligibles furloughed or separated.
3315a. [Repealed.]
3316. Preference eligibles; reinstatement.
3317. Competitive service; certification from registers.
3318. Competitive service; selection from certificates.
3319. [Repealed.]
3320. Excepted service; government of the District of Columbia;
selection.
3321. Competitive service; probationary period.
3322. [Repealed.]
3323. Automatic separations; reappointment; reemployment of annuitants.
3324. Appointments to positions classified above GS-15.
3325. Appointments to scientific and professional positions.
3326. Appointments of retired members of the armed forces to positions
in the Department of Defense.
3327. Civil service employment information.
3328. Selective Service registration.
3329. Appointments of military reserve technicians to positions in the
competitive service.
3330. Government-wide list of vacant positions.
3330a. Preference eligibles; administrative redress.
3330b. Preference eligibles; judicial redress.
3330c. Preference eligibles; remedy.
SUBCHAPTER II--OATH OF OFFICE
3331. Oath of office.
3332. Officer affidavit; no consideration paid for appointment.
3333. Employee affidavit; loyalty and striking against the Government.
SUBCHAPTER III--DETAILS, VACANCIES, AND APPOINTMENTS
3341. Details; within Executive or military departments.
3342. [Repealed.]
3343. Details; to international organizations.
3344. Details; administrative law judges.
3345. Acting officer.
3346. Time limitation.
3347. Exclusivity.
3348. Vacant office.
3349. Reporting of vacancies.
3349a. Presidential inaugural transitions.
3349b. Holdover provisions relating to certain independent
establishments.\1\
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\1\ Catchline does not conform to section heading.
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3349c. Exclusion of certain officers.
3349d. Notification of intent to nominate during certain recesses or
adjournments.
SUBCHAPTER IV--TRANSFERS
3351. Preference eligibles; transfer; physical qualifications; waiver.
3352. Preference in transfers for employees making certain disclosures.
SUBCHAPTER V--PROMOTION
3361. Promotion; competitive service; examination.
3362. Promotion; effect of incentive award.
3363. Preference eligibles; promotion; physical qualifications; waiver.
3364. [Repealed.]
SUBCHAPTER VI--ASSIGNMENTS TO AND FROM STATES
3371. Definitions.
3372. General provisions.
3373. Assignments of employees to State or local governments.\2\
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\2\ So in law. The item for section 3373 does not conform to the
heading for such section.
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3374. Assignments of employees from State or local governments.
3375. Travel expenses.
3376. Regulations.
SUBCHAPTER VII--AIR TRAFFIC CONTROLLERS
3381. Training.
3382. Involuntary separation for retirement.
3383. Determinations; review procedures.
3384. Regulations.
3385. Effect on other authority.
SUBCHAPTER VIII--APPOINTMENT, REASSIGNMENT, TRANSFER, AND DEVELOPMENT
IN THE SENIOR EXECUTIVE SERVICE
3391. Definitions.
3392. General appointment provisions.
3393. Career appointments.
3393a. Recertification.
3394. Noncareer and limited appointments.
3395. Reassignment and transfer within the Senior Executive Service.
3396. Development for and within the Senior Executive Service.
3397. Regulations.
Chapter 34--Part-Time Career Employment Opportunities
3401. Definitions.
3402. Establishment of part-time career employment programs.
3403. Limitations.
3404. Personnel ceilings.
3405. Nonapplicability.
3406. Regulations.
3407. [Repealed.]
3408. Employee organization representation.
Chapter 35--Retention Preference, Restoration, and Reemployment
SUBCHAPTER I--RETENTION PREFERENCE
3501. Definitions; application.
3502. Order of retention.
3503. Transfer of functions.
3504. Preference eligibles; retention; physical qualifications; waiver.
[SUBCHAPTER II--RESTORATION AFTER ACTIVE DUTY OR TRAINING DUTY]
3551. [Repealed.]
SUBCHAPTER III--REINSTATEMENT OR RESTORATION AFTER SUSPENSION OR
REMOVAL FOR NATIONAL SECURITY
3571. Reinstatement or restoration; individuals suspended or removed
for national security.
SUBCHAPTER IV--REEMPLOYMENT AFTER SERVICE WITH AN INTERNATIONAL
ORGANIZATION
3581. Definitions.
3582. Rights of transferring employees.
3583. Computations.
3584. Regulations.
SUBCHAPTER V--REMOVAL, REINSTATEMENT, AND GUARANTEED PLACEMENT IN THE
SENIOR EXECUTIVE SERVICE
3591. Definitions.
3592. Removal from the Senior Executive Service.
3593. Reinstatement in the Senior Executive Service.
3594. Guaranteed placement in other personnel systems.
3595. Reduction in force in the Senior Executive Service.
3595a. Furlough in the Senior Executive Service.
3596. Regulations.
SUBCHAPTER VI--REEMPLOYMENT FOLLOWING LIMITED APPOINTMENT IN THE
FOREIGN SERVICE
3597. Reemployment following limited appointment in the Foreign
Service.
SUBPART C--EMPLOYEE PERFORMANCE
Chapter 41--Training
4101. Definitions.
4102. Exceptions; Presidential authority.
4103. Establishment of training programs.
4104. Government facilities; use of.
4105. Non-Government facilities; use of.
4106. [Repealed.]
4107. Restriction on degree training.
4108. Employee agreements; service after training.
4109. Expenses of training.
4110. Expenses of attendance at meetings.
4111. Acceptance of contributions, awards, and other payments.
4112. Absorption of costs within funds available.
4113. [Repealed.]
4114. [Repealed.]
4115. Collection of training information.
4116. Training program assistance.
4117. Administration.
4118. Regulations.
4119. Training for employees under the Office of the Architect of the
Capitol and the Botanic Garden.
Chapter 43--Performance Appraisal
SUBCHAPTER I--GENERAL PROVISIONS
4301. Definitions.
4302. Establishment of performance appraisal systems.
4302a. [Repealed.]
4303. Actions based on unacceptable performance.
4304. Responsibilities of the Office of Personnel Management.
4305. Regulations.
SUBCHAPTER II--PERFORMANCE APPRAISAL IN THE SENIOR EXECUTIVE SERVICE
4311. Definitions.
4312. Senior Executive Service performance appraisal systems.
4313. Criteria for performance appraisals.
4314. Ratings for performance appraisals.
4315. Regulations.
Chapter 45--Incentive Awards
SUBCHAPTER I--AWARDS FOR SUPERIOR ACCOMPLISHMENTS
4501. Definitions.
4502. General provisions.
4503. Agency awards.
4504. Presidential awards.
4505. Awards to former employees.
4505a. Performance-based cash awards.
4506. Regulations.
4507. Awarding of ranks in the Senior Executive Service.
4508. Limitation of awards during a Presidential election year.
4509. Prohibition of cash award to Executive Schedule officers.
SUBCHAPTER II--AWARDS FOR COST SAVINGS DISCLOSURES
4511. Definition and general provisions.
4512. Agency awards for cost savings disclosures.
4513. Presidential awards for cost savings disclosures.
SUBCHAPTER III--AWARD TO LAW ENFORCEMENT OFFICERS FOR FOREIGN LANGUAGE
CAPABILITIES
4521. Definition.
4522. General provision.
4523. Award authority.
Chapter 47--Personnel Research Programs and Demonstration Projects
4701. Definitions.
4702. Research programs.
4703. Demonstration projects.
4704. Allocation of funds.
4705. Regulations.
SUBPART D--PAY AND ALLOWANCES
Chapter 51--Classification
5101. Purpose.
5102. Definitions; application.
5103. Determination of applicability.
5104. Basis for grading positions.
5105. Standards for classification of positions.
5106. Basis for classifying positions.
5107. Classification of positions.
5108. Classification of positions above GS-15.
5109. Positions classified by statute.
5110. Review of classification of positions.
5111. Revocation and restoration of authority to classify positions.
5112. General authority of the Office of Personnel Management.
5113. Classification records.
5114. [Repealed.]
5115. Regulations.
Chapter 53--Pay Rates and Systems
SUBCHAPTER I--PAY COMPARABILITY SYSTEM<GREEK-B>
5301. Policy.
5302. Definitions.
5303. Annual adjustments to pay schedules.
5304. Locality-based comparability payments.
5304a. Authority to fix an alternative level of comparability payments.
5305. Special pay authority.
5306. Pay fixed by administrative action.
5307. Limitation on certain payments.
SUBCHAPTER II--EXECUTIVE SCHEDULE PAY RATES
5311. The Executive Schedule.
5312. Positions at level I.
5313. Positions at level II.
5314. Positions at level III.
5315. Positions at level IV.
5316. Positions at level V.
5317. Presidential authority to place positions at levels IV and V.
5318. Adjustments in rates of pay.
SUBCHAPTER III--GENERAL SCHEDULE PAY RATES
5331. Definitions; application.
5332. The General Schedule.
5333. Minimum rate for new appointments.
5334. Rate on change of position or type of appointment; regulations.
5335. Periodic step-increases.
5336. Additional step-increases.
5337. [Repealed.]
5338. Regulations.
SUBCHAPTER IV--PREVAILING RATE SYSTEMS
5341. Policy.
5342. Definitions; application.
5343. Prevailing rate determinations; wage schedules; night
differentials.
5344. Effective date of wage increase; retroactive pay.
5345. [Repealed.]
5346. Job grading system.
5347. Federal Prevailing Rate Advisory Committee.
5348. Crews of vessels.
5349. Prevailing rate employees; legislative, judicial, Bureau of
Engraving and Printing, and government of the District of
Columbia.
SUBCHAPTER V--STUDENT-EMPLOYEES
5351. Definitions.
5352. Stipends.
5353. Quarters, subsistence, and laundry.
5354. Effect of detail or affiliation; travel expenses.
5355. Effect on other statutes.
5356. Appropriations.
SUBCHAPTER VI--GRADE AND PAY RETENTION
5361. Definitions.
5362. Grade retention following a change of positions or
reclassification.
5363. Pay retention.
5364. Remedial actions.
5365. Regulations.
5366. Appeals.
SUBCHAPTER VII--MISCELLANEOUS PROVISIONS
5371. Health care positions.
5372. Administrative law judges.
5372a. Contract appeals board members.
5372b. Administrative appeals judges.
5373. Limitation on pay fixed by administrative action.
5374. Miscellaneous positions in the executive branch.
5375. Police force of the National Zoological Park.
5376. Pay for certain senior-level positions.
5377. Pay authority for critical positions.
5378. Police forces of the Bureau of Engraving and Printing and the
United States Mint.
5379. Student loan repayments.
SUBCHAPTER VIII--PAY FOR THE SENIOR EXECUTIVE SERVICE
5381. Definitions.
5382. Establishment and adjustment of rates of pay for the Senior
Executive Service.
5383. Setting individual senior executive pay.
5384. Performance awards in the Senior Executive Service.
5385. Regulations.
SUBCHAPTER IX--SPECIAL OCCUPATIONAL PAY SYSTEMS
5391. Definitions.
5392. Establishment of special occupational pay systems.
Chapter 55--Pay Administration
SUBCHAPTER I--GENERAL PROVISIONS
5501. Disposition of money accruing from lapsed salaries or unused
appropriations for salaries.
5502. Unauthorized office; prohibition on use of funds.
5503. Recess appointments.
5504. Biweekly pay periods; computation of pay.
5505. Monthly pay periods; computation of pay.
5506. Computation of extra pay based on standard or daylight saving
time.
5507. Officer affidavit; condition to pay.
5508. Officer entitled to leave; effect on pay status.
5509. Appropriations.
SUBCHAPTER II--WITHHOLDING PAY
5511. Withholding pay; employees removed for cause.
5512. Withholding pay; individuals in arrears.
5513. Withholding pay; credit disallowed or charge raised for payment.
5514. Installment deduction for indebtedness to the United States.
5515. Crediting amounts received for jury or witness service.
5516. Withholding District of Columbia income taxes.
5517. Withholding State income taxes.
5518. Deductions for State retirement systems; National Guard
employees.
5519. Crediting amounts received for certain Reserve or National Guard
service.
5520. Withholding of city or county income or employment taxes.
5520a. Garnishment of pay.
SUBCHAPTER III--ADVANCEMENT, ALLOTMENT, AND ASSIGNMENT OF PAY
5521. Definitions.
5522. Advance payments; rates; amounts recoverable.
5523. Duration of payments; rates; active service period.
5524. Review of accounts.
5524a. Advance payments for new appointees.
5525. Allotment and assignment of pay.
5526. Funds available on reimbursable basis.
5527. Regulations.
SUBCHAPTER IV--DUAL PAY AND DUAL EMPLOYMENT
5531. Definitions.
5532. Employment of retired members of the uniformed services;
reduction in retired or retainer pay.
5533. Dual pay from more than one position; limitations; exceptions.
5534. Dual employment and pay of Reserves and National Guardsmen.
5534a. Dual employment and pay during terminal leave from uniformed
services.
5535. Extra pay for details prohibited.
5536. Extra pay for extra services prohibited.
5537. Fees for jury and witness service.
SUBCHAPTER V--PREMIUM PAY
5541. Definitions.
5542. Overtime rates; computation.
5543. Compensatory time off.
5544. Wage-board overtime and Sunday rates; computation.
5545. Night, standby, irregular, and hazardous duty differential.
5545a. Availability pay for criminal investigators
5545b. Pay for firefighters.
5546. Pay for Sunday and holiday work.
5546a. Differential pay for certain employees of the Federal Aviation
Administration and the Department of Defense.
5547. Limitation on premium pay.
5548. Regulations.
5549. Effect on other statutes.
5550. [Repealed.]
5550a. Compensatory time off for religious observances.
SUBCHAPTER VI--PAYMENT FOR ACCUMULATED AND ACCRUED LEAVE
5551. Lump-sum payment for accumulated and accrued leave on separation.
5552. Lump-sum payment for accumulated and accrued leave on entering
active duty; election.
5553. Regulations.
SUBCHAPTER VII--PAYMENTS TO MISSING EMPLOYEES
5561. Definitions.
5562. Pay and allowances; continuance while in a missing status;
limitations.
5563. Allotments; continuance, suspension, initiation, resumption, or
increase while in a missing status; limitations.
5564. Travel and transportation; dependents; household and personal
effects; motor vehicles; sale of bulky items; claims for
proceeds; appropriation chargeable.
5565. Agency review.
5566. Agency determinations.
5567. Settlement of accounts.
5568. Income tax deferment.
5569. Benefits for captives.
5570. Compensation for disability or death.
SUBCHAPTER VIII--SETTLEMENT OF ACCOUNTS
5581. Definitions.
5582. Designation of beneficiary; order of precedence.
5583. Payment of money due; settlement of accounts.
5584. Claims for overpayment of pay and allowances, and of travel,
transportation and relocation expenses and allowances.
SUBCHAPTER IX--SEVERANCE PAY AND BACK PAY
5591-5594. [Repealed.]
5595. Severance pay.
5596. Back pay due to unjustified personnel action.
5597. Separation pay.
Chapter 57--Travel, Transportation, and Subsistence
SUBCHAPTER I--TRAVEL AND SUBSISTENCE EXPENSES; MILEAGE ALLOWANCES
5701. Definitions.
5702. Per diem; employees traveling on official business.
5703. Per diem, travel, and transportation expenses; experts and
consultants; individuals serving without pay.
5704. Mileage and related allowances.
5705. Advancements and deductions.
5706. Allowable travel expenses.
5706a. Subsistence and travel expenses for threatened law enforcement
personnel.
5706b. Interview expenses.
5706c. Reimbursement for taxes incurred on money received for travel
expenses.
5707. Regulations and reports.
5707a. Adherence to fire safety guidelines in establishing rates and
discounts for lodging expenses.
5708. Effect on other statutes.
5709. Air evacuation patients: furnished subsistence.
5710. Authority for travel expenses test programs.
SUBCHAPTER II--TRAVEL AND TRANSPORTATION EXPENSES; NEW APPOINTEES,
STUDENT TRAINEES, AND TRANSFERRED EMPLOYEES
5721. Definitions.
5722. Travel and transportation expenses of new appointees; posts of
duty outside the continental United States.
5723. Travel and transportation expenses of new appointees and student
trainees.
5724. Travel and transportation expenses of employees transferred;
advancement of funds; reimbursement on commuted basis.
5724a. Relocation expenses of employees transferred or reemployed.
5724b. Taxes on reimbursements for travel, transportation, and
relocation expenses of employees transferred.
5724c. Relocation services.
5725. Transportation expenses; employees assigned to danger areas.
5726. Storage expenses; household goods and personal effects.
5727. Transportation of motor vehicles.
5728. Travel and transportation expenses; vacation leave.
5729. Transportation expenses; prior return of family.
5730. Funds available.
5731. Expenses limited to lowest first-class rate.
5732. General average contribution; payment or reimbursement.
5733. Expeditious travel.
5734. Travel, transportation, and relocation expenses of employees
transferred from the Postal Service.
5735. Travel, transportation, and relocation expenses of employees
transferring to the United States Postal Service.
5736. Travel, transportation, and relocation expenses of certain
nonappropriated fund employees.
5737. Relocation expenses of an employee who is performing an extended
assignment.
5738. Regulations.
5739. Authority for relocation expenses test programs.
SUBCHAPTER III--TRANSPORTATION OF REMAINS, DEPENDENTS, AND EFFECTS
5741. General prohibition.
5742. Transportation of remains, dependents, and effects; death
occurring away from official station or abroad.
SUBCHAPTER IV--MISCELLANEOUS PROVISIONS
5751. Travel expenses of witnesses.
5752. Travel expenses of Senior Executive Service candidates.
5753. Recruitment and relocation bonuses.
5754. Retention allowances.
5755. Supervisory differentials.
5756. Home marketing incentive payment.
Chapter 59--Allowances
SUBCHAPTER I--UNIFORMS
5901. Uniform allowances.
5902. Increase in maximum uniform allowance.
5903. Regulations.
SUBCHAPTER II--QUARTERS
5911. Quarters and facilities; employees in the United States.
5912. Quarters in Government owned or rented buildings; employees in
foreign countries.
5913. Official residence expenses.
SUBCHAPTER III--OVERSEAS DIFFERENTIALS AND ALLOWANCES
5921. Definitions.
5922. General provisions.
5923. Quarters allowances.
5924. Cost-of-living allowances.
5925. Post differentials.
5926. Compensatory time off at certain posts in foreign areas.
5927. Advances of pay.
5928. Danger pay allowance.
SUBCHAPTER IV--MISCELLANEOUS ALLOWANCES
5941. Allowances based on living costs and conditions of environment;
employees stationed outside continental United States or in
Alaska.
5942. Allowance based on duty at remote worksites.
5942a. Separate maintenance allowance for duty at Johnston Island.
5943. Foreign currency appreciation allowances.
5944. [Repealed.]
5945. Notary public commission expenses.
5946. Membership fees; expenses of attendance at meetings; limitations.
5947. Quarters, subsistence, and allowances for employees of the Corps
of Engineers, Department of the Army, engaged in floating
plant operations.
5948. Physicians comparability allowances.
SUBPART E--ATTENDANCE AND LEAVE
Chapter 61--Hours of Work
SUBCHAPTER I--GENERAL PROVISIONS
6101. Basic 40-hour workweek; work schedules; regulations.
6102. [Repealed.]
6103. Holidays.
6104. Holidays; daily, hourly, and piece-work basis employees.
6105. Closing of Executive departments.
6106. Time clocks; restrictions.
SUBCHAPTER II--FLEXIBLE AND COMPRESSED WORK SCHEDULES
6120. Purpose.
6121. Definitions.
6122. Flexible schedules; agencies authorized to use.
6123. Flexible schedules; computation of premium pay.
6124. Flexible schedules; holidays.
6125. Flexible schedules; time-recording devices.
6126. Flexible schedules; credit hours; accumulation and compensation.
6127. Compressed schedules; agencies authorized to use.
6128. Compressed schedules; computation of premium pay.
6129. Administration of leave and retirement provisions.
6130. Application of programs in the case of collective bargaining
agreements.
6131. Criteria and review.
6132. Prohibition of coercion.
6133. Regulations; technical assistance; program review.
Chapter 63--Leave
SUBCHAPTER I--ANNUAL AND SICK LEAVE
6301. Definitions.
6302. General provisions.
6303. Annual leave; accrual.
6304. Annual leave; accumulation.
6305. Home leave; leave for Chiefs of Missions; leave for crews of
vessels.
6306. Annual leave; refund of lump-sum payment; recredit of annual
leave.
6307. Sick leave; accrual and accumulation.
6308. Transfers between positions under different leave systems.
6309. [Repealed.]
6310. Leave of absence; aliens.
6311. Regulations.
6312. Accrual and accumulation for former ASCS county office and
nonappropriated fund employees.
SUBCHAPTER II--OTHER PAID LEAVE
6321. Absence of veterans to attend funeral services.
6322. Leave for jury or witness service; official duty status for
certain witness service.
6323. Military leave; Reserves and National Guardsmen.
6324. Absence of certain police and firemen.
6325. Absence resulting from hostile action abroad.
6326. Absence in connection with funerals of immediate relatives in the
Armed Forces.
6327. Absence in connection with serving as a bone-marrow or organ
donor.
6328. Absence in connection with funerals of fellow Federal law
enforcement officers.
SUBCHAPTER III--VOLUNTARY TRANSFERS OF LEAVE
6331. Definitions.
6332. General authority.
6333. Receipt and use of transferred leave.
6334. Donations of leave.
6335. Termination of medical emergency.
6336. Restoration of transferred leave.
6337. Accrual of leave.
6338. Prohibition of coercion.
6339. Additional leave transfer programs.
6340. Inapplicability of certain provisions.
SUBCHAPTER IV--VOLUNTARY LEAVE BANK PROGRAM
6361. Definitions.
6362. General authority.
6363. Establishment of leave banks.
6364. Establishment of Leave Bank Boards.
6365. Contributions of annual leave.
6366. Eligibility for leave recipients.
6367. Receipt and use of leave from a leave bank.
6368. Termination of medical emergency.
6369. Restoration of transferred leave.
6370. Prohibition of coercion.
6371. Accrual of leave.
6372. Additional leave bank programs.
6373. Authority to participate in both programs.
SUBCHAPTER V--FAMILY AND MEDICAL LEAVE
6381. Definitions.
6382. Leave requirement.
6383. Certification.
6384. Employment and benefits protection.
6385. Prohibition of coercion.
6386. Health insurance.
6387. Regulations.
SUBCHAPTER VI--LEAVE TRANSFER IN DISASTERS AND EMERGENCIES
6391. Authority for leave transfer program in disasters and
emergencies.
SUBPART F--LABOR-MANAGEMENT AND EMPLOYEE RELATIONS
Chapter 71--Labor-Management Relations
SUBCHAPTER I--GENERAL PROVISIONS
7101. Findings and purpose.
7102. Employees' rights.
7103. Definitions; application.
7104. Federal Labor Relations Authority.
7105. Powers and duties of the Authority.
7106. Management rights.
SUBCHAPTER II--RIGHTS AND DUTIES OF AGENCIES AND LABOR ORGANIZATIONS
7111. Exclusive recognition of labor organizations.
7112. Determination of appropriate units for labor organization
representation.
7113. National consultation rights.
7114. Representation rights and duties.
7115. Allotments to representatives.
7116. Unfair labor practices.
7117. Duty to bargain in good faith; compelling need; duty to consult.
7118. Prevention of unfair labor practices.
7119. Negotiation impasses; Federal Service Impasses Panel.
7120. Standards of conduct for labor organizations.
SUBCHAPTER III--GRIEVANCES, APPEALS, AND REVIEW
7121. Grievance procedures.
7122. Exceptions to arbitral awards.
7123. Judicial review; enforcement.
SUBCHAPTER IV--ADMINISTRATIVE AND OTHER PROVISIONS
7131. Official time.
7132. Subpenas.
7133. Compilation and publication of data.
7134. Regulations.
7135. Continuation of existing laws, recognitions, agreements, and
procedures.
Chapter 72--Antidiscrimination; Right to Petition Congress
SUBCHAPTER I--ANTIDISCRIMINATION IN EMPLOYMENT
7201. Antidiscrimination policy; minority recruitment program.
7202. Marital status.
7203. Handicapping condition.
7204. Other prohibitions.
SUBCHAPTER II--EMPLOYEES' RIGHT TO PETITION CONGRESS
7211. Employees' right to petition Congress.
Chapter 73--Suitability, Security, and Conduct
SUBCHAPTER I--REGULATION OF CONDUCT
7301. Presidential regulations.
SUBCHAPTER II--EMPLOYMENT LIMITATIONS
7311. Loyalty and striking.
7312. Employment and clearance; individuals removed for national
security.
7313. Riots and civil disorders.
SUBCHAPTER III--POLITICAL ACTIVITIES
7321. Political participation.
7322. Definitions.
7323. Political activity authorized; prohibitions.
7324. Political activities on duty; prohibition.
7325. Political activity permitted; employees residing in certain
municipalities.
7326. Penalties.
SUBCHAPTER IV--FOREIGN GIFTS AND DECORATIONS
7341. [Repealed.]
7342. Receipt and disposition of foreign gifts and decorations.
SUBCHAPTER V--MISCONDUCT
7351. Gifts to superiors.
7352. Excessive and habitual use of intoxicants.
7353. Gifts to Federal employees.
SUBCHAPTER VI--DRUG ABUSE, ALCOHOL ABUSE, AND ALCOHOLISM
7361. Drug abuse.
7362. Alcohol abuse and alcoholism.
7363. Reports to Congress.
SUBCHAPTER VII--MANDATORY REMOVAL FROM EMPLOYMENT OF CONVICTED LAW
ENFORCEMENT OFFICERS
7371. Mandatory removal from employment of law enforcement officers
convicted of felonies.
Chapter 75--Adverse Actions
SUBCHAPTER I--SUSPENSION FOR 14 DAYS OR LESS
7501. Definitions.
7502. Actions covered.
7503. Cause and procedure.
7504. Regulations.
SUBCHAPTER II--REMOVAL, SUSPENSION FOR MORE THAN 14 DAYS, REDUCTION IN
GRADE OR PAY, OR FURLOUGH FOR 30 DAYS OR LESS
7511. Definitions; application.
7512. Actions covered.
7513. Cause and procedure.
7514. Regulations.
SUBCHAPTER III--ADMINISTRATIVE LAW JUDGES
7521. Actions against administrative law judges.
SUBCHAPTER IV--NATIONAL SECURITY
7531. Definitions.
7532. Suspension and removal.
7533. Effect on other statutes.
SUBCHAPTER V--SENIOR EXECUTIVE SERVICE
7541. Definitions.
7542. Actions covered.
7543. Cause and procedure.
Chapter 77--Appeals
7701. Appellate procedures.
7702. Actions involving discrimination.
7703. Judicial review of decisions of the Merit Systems Protection
Board.
Chapter 79--Services to Employees
7901. Health service programs.
7902. Safety programs.
7903. Protective clothing and equipment.
7904. Employee assistance programs relating to drug abuse and alcohol
abuse.
7905. Programs to encourage commuting by means other than single-
occupancy motor vehicles.
SUBPART G--INSURANCE AND ANNUITIES
Chapter 81--Compensation for Work Injuries
SUBCHAPTER I--GENERALLY
8101. Definitions.
8102. Compensation for disability or death of employee.
8103. Medical services and initial medical and other benefits.
8104. Vocational rehabilitation.
8105. Total disability.
8106. Partial disability.
8107. Compensation schedule.
8108. Reduction of compensation for subsequent injury to same member.
8109. Beneficiaries of awards unpaid at death; order of precedence.
8110. Augmented compensation for dependents.
8111. Additional compensation for services of attendants or vocational
rehabilitation.
8112. Maximum and minimum monthly payments.
8113. Increase or decrease of basic compensation.
8114. Computation of pay.
8115. Determination of wage-earning capacity.
8116. Limitations on right to receive compensation.
8117. Time of accrual of right.
8118. Continuation of pay; election to use annual or sick leave.
8119. Notice of injury or death.
8120. Report of injury.
8121. Claim.
8122. Time for making claim.
8123. Physical examinations.
8124. Findings and award; hearings.
8125. Misbehavior at proceedings.
8126. Subpenas; oaths; examination of witnesses.
8127. Representation; attorneys' fees.
8128. Review of award.
8129. Recovery of overpayments.
8130. Assignment of claim.
8131. Subrogation of the United States.
8132. Adjustment after recovery from a third person.
8133. Compensation in case of death.
8134. Funeral expenses; transportation of body.
8135. Lump-sum payment.
8136. Initial payments outside the United States.
8137. Compensation for noncitizens and nonresidents.
8138. Minimum limit modification for noncitizens and aliens.
8139. Employees of the District of Columbia.
8140. Members of the Reserve Officers' Training Corps.
8141. Civil Air Patrol volunteers.
8142. Peace Corps volunteers.
8143. Job Corps enrollees; volunteers in service to America.
8143a. Members of the National Teacher Corps.
8144. Student-employees.
8145. Administration.
8146. Administration for the Panama Canal Commission and the Alaska
Railroad.
8146a. Cost-of-living adjustment of compensation.
8147. Employees' Compensation Fund.
8148. Forfeiture of benefits by convicted felons.
8149. Regulations.
8150. Effect on other statutes.
8151. Civil service retention rights.
8152. Annual report.
SUBCHAPTER II--EMPLOYEES OF NONAPPROPRIATED FUND INSTRUMENTALITIES
8171. Compensation for work injuries; generally.
8172. Employees not citizens or residents of the United States.
8173. Liability under this subchapter exclusive.
SUBCHAPTER III--LAW ENFORCEMENT OFFICERS NOT EMPLOYED BY THE UNITED
STATES
8191. Determination of eligibility.
8192. Benefits.
8193. Administration.
Chapter 83--Retirement
SUBCHAPTER I--GENERAL PROVISIONS
8301. Uniform retirement date.
SUBCHAPTER II--FORFEITURE OF ANNUITIES AND RETIRED PAY
8311. Definitions.
8312. Conviction of certain offenses.
8313. Absence from the United States to avoid prosecution.
8314. Refusal to testify.
8315. Falsifying employment applications.
8316. Refund of contributions and deposits.
8317. Repayment of annuity or retired pay properly paid; waiver.
8318. Restoration of annuity or retired pay.
8319. Removal of members of the uniformed services from rolls;
restoration; reappointment.
8320. Offense or violation committed in compliance with orders.
8321. Liability of accountable employees.
8322. Effect on other statutes.
SUBCHAPTER III--CIVIL SERVICE RETIREMENT
8331. Definitions.
8332. Creditable service.
8333. Eligibility for annuity.
8334. Deductions, contributions, and deposits.
8335. Mandatory separation.
8336. Immediate retirement.
8337. Disability retirement.
8338. Deferred retirement.
8339. Computation of annuity.
8340. Cost-of-living adjustment of annuities.
8341. Survivor annuities.
8342. Lump-sum benefits; designation of beneficiary; order of
precedence.
8343. Additional annuities; voluntary contributions.
8343a. Alternative forms of annuities.
8344. Annuities and pay on reemployment.
8345. Payment of benefits; commencement, termination, and waiver of
annuity.
8346. Exemption from legal process; recovery of payments.
8347. Administration; regulations.
8348. Civil Service Retirement and Disability Fund.
8349. Offset relating to certain benefits under the Social Security
Act.
8350. Retirement counseling.
8351. Participation in the Thrift Savings Plan.
Chapter 84--Federal Employees' Retirement System
SUBCHAPTER I--GENERAL PROVISIONS
8401. Definitions.
8402. Federal Employees' Retirement System; exclusions.
8403. Relationship to the Social Security Act.
SUBCHAPTER II--BASIC ANNUITY
8410. Eligibility for annuity.
8411. Creditable service.
8412. Immediate retirement.
8413. Deferred retirement.
8414. Early retirement.
8415. Computation of basic annuity.
8416. Survivor reduction for a current spouse.
8417. Survivor reduction for a former spouse.
8418. Survivor elections; deposit; offsets.
8419. Survivor reductions; computation.
8420. Insurable interest reductions.
8420a. Alternative forms of annuities.
8421. Annuity supplement.
8421a. Reductions on account of earnings from work performed while
entitled to an annuity supplement.
8422. Deductions from pay; contributions for military service.
8423. Government contributions.
8424. Lump-sum benefits; designation of beneficiary; order of
precedence.
8425. Mandatory separation.
SUBCHAPTER III--THRIFT SAVINGS PLAN
8431. Certain transfers to be treated as a separation.
8432. Contributions.
8432a. Payment of lost earnings.
8432b. Contributions of persons who perform military service.
8432c. Contributions of certain persons reemployed after service with
international organizations.
8433. Benefits and election of benefits.
8434. Annuities: methods of payment; election; purchase.
8435. Protections for spouses and former spouses.
8436. Administrative provisions.
8437. Thrift Savings Fund.
8438. Investment of Thrift Savings Fund.
8439. Accounting and information.
8440. Tax treatment of the Thrift Savings Fund.
8440a. Justices and judges.
8440b. Bankruptcy judges and magistrates.
8440c. Claims Court judges.
8440d. Judges of the United States Court of Appeals for Veterans Claim.
8440e. Members of the uniformed services.
8440f. Maximum percentage allowable for certain participants.
SUBCHAPTER IV--SURVIVOR ANNUITIES
8441. Definitions.
8442. Rights of a widow or widower.
8443. Rights of a child.
8444. Rights of a named individual with an insurable interest.
8445. Rights of a former spouse.
SUBCHAPTER V--DISABILITY BENEFITS
8451. Disability retirement.
8452. Computation of disability annuity.
8453. Application.
8454. Medical examination.
8455. Recovery; restoration of earning capacity.
8456. Military reserve technicians.
SUBCHAPTER VI--GENERAL AND ADMINISTRATIVE PROVISIONS
8461. Authority of the Office of Personnel Management.
8462. Cost-of-living adjustments.
8463. Rate of benefits.
8464. Commencement and termination of annuities of employees and
Members.
8464a. Relationship between annuity and workers' compensation.
8465. Waiver, allotment, and assignment of benefits.
8466. Application for benefits.
8467. Court orders.
8468. Annuities and pay on reemployment.
8469. Withholding of State income taxes.
8470. Exemption from legal process; recovery of payments.
SUBCHAPTER VII--FEDERAL RETIREMENT THRIFT INVESTMENT MANAGEMENT SYSTEM
8471. Definitions.
8472. Federal Retirement Thrift Investment Board.
8473. Employee Thrift Advisory Council.
8474. Executive Director.
8475. Investment policies.
8476. Administrative provisions.
8477. Fiduciary responsibilities; liability and penalties.
8478. Bonding.
8478a. Investigative authority.
8479. Exculpatory provisions; insurance.
Chapter 85--Unemployment Compensation
SUBCHAPTER I--EMPLOYEES GENERALLY
8501. Definitions.
8502. Compensation under State agreement.
8503. Compensation absent State agreement.
8504. Assignment of Federal service and wages.
8505. Payments to States.
8506. Dissemination of information.
8507. False statements and misrepresentations.
8508. Regulations.
8509. Federal Employees Compensation Account.
SUBCHAPTER II--EX-SERVICEMEN
8521. Definitions; application.
8522. Assignment of Federal service and wages.
8523. Dissemination of information.
8524. [Repealed.]
8525. Effect on other statutes.
Chapter 87--Life Insurance
8701. Definitions.
8702. Automatic coverage.
8703. Benefit certificate.
8704. Group insurance; amounts.
8705. Death claims; order of precedence; escheat.
8706. Termination of insurance; assignment of ownership.
8707. Employee deductions; withholding.
8708. Government contributions.
8709. Insurance policies.
8710. Reinsurance.
8711. Basic tables of premium rates.
8712. Annual accounting; special contingency reserve.
8713. Effect of other statutes.
8714. Employees' Life Insurance Fund.
8714a. Optional insurance.
8714b. Additional optional life insurance.
8714c. Optional life insurance on family members.
8714d. Option to receive ``living benefits''.
8715. Jurisdiction of courts.
8716. Regulations.
Chapter 89--Health Insurance
8901. Definitions.
8902. Contracting authority.
8902a. Debarment and other sanctions.
8903. Health benefits plans.
8903a. Additional health benefits plans.
8903b. Authority to readmit an employee organization plan.
8904. Types of benefits.
8905. Election of coverage.
8905a. Continued coverage.
8906. Contributions.
8906a. Temporary employees.
8907. Information to individuals eligible to enroll.
8908. Coverage of restored employees and survivor or disability
annuitants.
8909. Employees Health Benefits Fund.
8910. Studies, reports, and audits.
8911. Advisory committee.
8912. Jurisdiction of courts.
8913. Regulations.
8914. Effect of other statutes.
Chapter 90--Long-Term Care Insurance
9001. Definitions.
9002. Availability of insurance.
9003. Contracting authority.
9004. Financing.
9005. Preemption.
9006. Studies, reports, and audits.
9007. Jurisdiction of courts.
9008. Administrative functions.
9009. Cost accounting standards.
SUBPART H--ACCESS TO CRIMINAL HISTORY RECORD INFORMATION
Chapter 91--Access to Criminal History Records for National Security and
Other Purposes
9101. Access to criminal history records for national security and
other purposes.
SUBPART I--MISCELLANEOUS
Chapter 95--Personnel Flexibilities Relating to the Internal Revenue
Service
9501. Internal Revenue Service personnel flexibilities.
9502. Pay authority for critical positions.
9503. Streamlined critical pay authority.
9504. Recruitment, retention, relocation incentives, and relocation
expenses.
9505. Performance awards for senior executives.
9506. Limited appointments to career reserved Senior Executive Service
positions.
9507. Streamlined demonstration project authority.
9508. General workforce performance management system.
9509. General workforce classification and pay.
9510. General workforce staffing.
PART I--THE AGENCIES GENERALLY
Chap. Sec.
Organization...................................................101
Powers.........................................................301
Administrative Procedure.......................................501
The Analysis of Regulatory Functions...........................601
Judicial Review................................................701
Congressional Review of Agency Rulemaking......................801
Executive Reorganization.......................................901
CHAPTER 1--ORGANIZATION
Sec.
101. Executive departments.
102. Military departments.
103. Government corporation.
104. Independent establishment.
105. Executive agency.
Sec. 101. Executive departments
The Executive departments are:
The Department of State.
The Department of the Treasury.
The Department of Defense.
The Department of Justice.
The Department of the Interior.
The Department of Agriculture.
The Department of Commerce.
The Department of Labor.
The Department of Health and Human Services.
The Department of Housing and Urban Development.
The Department of Transportation.
The Department of Energy.
The Department of Education.
The Department of Veterans Affairs.
Sec. 102. Military departments
The military departments are:
The Department of the Army.
The Department of the Navy.
The Department of the Air Force.
Sec. 103. Government corporation
For the purpose of this title--
(1) ``Government corporation'' means a corporation
owned or controlled by the Government of the United
States; and
(2) ``Government controlled corporation'' does not
include a corporation owned by the Government of the
United States.
Sec. 104. Independent establishment
For the purpose of this title, ``independent
establishment'' means--
(1) an establishment in the executive branch (other
than the United States Postal Service or the Postal
Rate Commission) which is not an Executive department,
military department, Government corporation, or part
thereof, or part of an independent establishment; and
(2) the General Accounting Office.
Sec. 105. Executive agency
For the purpose of this title, ``Executive agency'' means
an Executive department, a Government corporation, and an
independent establishment.
CHAPTER 3--POWERS
Sec.
301. Departmental regulations.
302. Delegation of authority.
303. Oaths to witnesses.
304. Subpenas.
305. Systematic agency review of operations.
306. Strategic plans.
Sec. 301. Departmental regulations
The head of an Executive department or military department
may prescribe regulations for the government of his department,
the conduct of its employees, the distribution and performance
of its business, and the custody, use, and preservation of its
records, papers, and property. This section does not authorize
withholding information from the public or limiting the
availability of records to the public.
Sec. 302. Delegation of authority
(a) For the purpose of this section, ``agency'' has the
meaning given it by section 5721 of this title.
(b) In addition to the authority to delegate conferred by
other law, 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; and
(2) by section 3702 of title 44 to authorize the
publication of advertisements, notices, or proposals.
Sec. 303. Oaths to witnesses
(a) An employee of an Executive department lawfully
assigned to investigate frauds on or attempts to defraud the
United States, or irregularity or misconduct of an employee or
agent of the United States, may administer an oath to a witness
attending to testify or depose in the course of the
investigation.
(b) An employee of the Department of Defense lawfully
assigned to investigative duties may administer oaths to
witnesses in connection with an official investigation.
Sec. 304. Subpenas
(a) The head of an Executive department or military
department or bureau thereof in which a claim against the
United States is pending may apply to a judge or clerk of a
court of the United States to issue a subpena for a witness
within the jurisdiction of the court to appear at a time and
place stated in the subpena before an individual authorized to
take depositions to be used in the courts of the United States,
to give full and true answers to such written interrogatories
and cross-interrogatories as may be submitted with the
application, or to be orally examined and cross-examined on the
subject of the claim.
(b) If a witness, after being served with a subpena,
neglects or refuses to appear, or, appearing, refuses to
testify, the judge of the district in which the subpena issued
may proceed, on proper process, to enforce obedience to the
subpena, or to punish for disobedience, in the same manner as a
court of the United States may in case of process of subpena ad
testificandum issued by the court.
Sec. 305. Systematic agency review of operations
(a) For the purpose of this section, ``agency'' means an
Executive agency, but does not include--
(1) a Government controlled corporation;
(2) the Tennessee Valley Authority;
(3) the Alaska Railroad;
(4) the Virgin Islands Corporation;
(5) the Atomic Energy Commission;
(6) the Central Intelligence Agency;
(7) the Panama Canal Commission; or
(8) the National Security Agency, Department of
Defense.
(b) Under regulations prescribed and administered by the
President, each agency shall review systematically the
operations of each of its activities, functions, or
organization units, on a continuing basis.
(c) The purpose of the reviews includes--
(1) determining the degree of efficiency and
economy in the operation of the agency's activities,
functions, or organization units;
(2) identifying the units that are outstanding in
those respects; and
(3) identifying the employees whose personal
efforts have caused their units to be outstanding in
efficiency and economy of operations.
Sec. 306. Strategic plans
(a) No later than September 30, 1997, the head of each
agency shall submit to the Director of the Office of Management
and Budget and to the Congress a strategic plan for program
activities. Such plan shall contain--
(1) a comprehensive mission statement covering the
major functions and operations of the agency;
(2) general goals and objectives, including
outcome-related goals and objectives, for the major
functions and operations of the agency;
(3) a description of how the goals and objectives
are to be achieved, including a description of the
operational processes, skills and technology, and the
human, capital, information, and other resources
required to meet those goals and objectives;
(4) a description of how the performance goals
included in the plan required by section 1115(a) of
title 31 shall be related to the general goals and
objectives in the strategic plan;
(5) an identification of those key factors external
to the agency and beyond its control that could
significantly affect the achievement of the general
goals and objectives; and
(6) a description of the program evaluations used
in establishing or revising general goals and
objectives, with a schedule for future program
evaluations.
(b) The strategic plan shall cover a period of not less
than five years forward from the fiscal year in which it is
submitted. The strategic plan shall be updated and revised at
least every three years, except that the strategic plan for the
Department of Defense shall be updated and revised at least
every four years.
(c) The performance plan required by section 1115 of title
31 shall be consistent with the agency's strategic plan. A
performance plan may not be submitted for a fiscal year not
covered by a current strategic plan under this section.
(d) When developing a strategic plan, the agency shall
consult with the Congress, and shall solicit and consider the
views and suggestions of those entities potentially affected by
or interested in such a plan.
(e) The functions and activities of this section shall be
considered to be inherently Governmental functions. The
drafting of strategic plans under this section shall be
performed only by Federal employees.
(f) For purposes of this section the term ``agency'' means
an Executive agency defined under section 105, but does not
include the Central Intelligence Agency, the General Accounting
Office, the Panama Canal Commission, the United States Postal
Service, and the Postal Rate Commission.
CHAPTER 5--ADMINISTRATIVE PROCEDURE
SUBCHAPTER I--GENERAL PROVISIONS
Sec.
500. Administrative practice; general provisions.
501. Advertising practice; restrictions.
502. Administrative practice; Reserves and National Guardsmen.
503. Witness fees and allowances.
504. Costs and fees of parties.
SUBCHAPTER II--ADMINISTRATIVE PROCEDURE
551. Definitions.
552. Public information; agency rules, opinions, orders, records, and
proceedings.
552a. Records maintained on individuals.
552b. Open meetings.
553. Rule making.
554. Adjudications.
555. Ancillary matters.
556. Hearings; presiding employees; powers and duties; burden of
proof; evidence; record as basis of decision.
557. Initial decisions; conclusiveness; review by agency; submissions
by parties; contents of decisions; record.
558. Imposition of sanctions; determination of applications for
licenses; suspension, revocation, and expiration of licenses.
559. Effect on other laws; effect of subsequent statute.
SUBCHAPTER III--NEGOTIATED RULEMAKING PROCEDURE \1\
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\1\ The items relating to sections 561-596 generally were added by
section 4 of P.L. 102-354 (106 Stat. 945). These items probably should
not have ``Sec.'' at the beginning. The items relating to sections 569
and 570a were added by sections 11(b)(2) and 11(d)(2), respectively, of
P.L. 104-320 (110 Stat. 3873, 3874). These items conform with the style
of this table of sections.
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Sec. 561. Purpose.
Sec. 562. Definitions.
Sec. 563. Determination of need for negotiated rulemaking committee.
Sec. 564. Publication of notice; applications for membership on
committee.\2\
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\2\ Does not match section catchline.
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Sec. 565. Establishment of committee.
Sec. 566. Conduct of committee activity.
Sec. 567. Termination of committee.
Sec. 568. Services, facilities, and payment of committee member
expenses.
569. Encouraging negotiated rulemaking.
Sec. 570. Judicial review.
570a. Authorization of appropriations.
SUBCHAPTER IV--ALTERNATIVE MEANS OF DISPUTE RESOLUTION IN THE
ADMINISTRATIVE PROCESS \1\
Sec. 571. Definitions.
Sec. 572. General authority.
Sec. 573. Neutrals.
Sec. 574. Confidentiality.
Sec. 575. Authorization of arbitration.
Sec. 576. Enforcement of arbitration agreements.
Sec. 577. Arbitrators.
Sec. 578. Authority of the arbitrator.
Sec. 579. Arbitration proceedings.
Sec. 580. Arbitration awards.
Sec. 581. Judicial review.
[Sec. 582. Repealed.]
Sec. 583. Support services.
584. Authorization of appropriations.
SUBCHAPTER V--ADMINISTRATIVE CONFERENCE OF THE UNITED STATES \1\
---------------------------------------------------------------------------
\1\ The items relating to sections 561-596 generally were added by
section 4 of P.L. 102-354 (106 Stat. 945). These items probably should
not have ``Sec.'' at the beginning. The item relating to section 584
was added by section 10(b) of P.L. 104-320 (110 Stat. 3873). This item
conforms with the style of this table of sections.
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Sec. 591. Purpose.
Sec. 592. Definitions.
Sec. 593. Administrative Conference of the United States.
Sec. 594. Powers and duties of the Conference.
Sec. 595. Organization of the Conference.
Sec. 596. Authorization of appropriations.
SUBCHAPTER I--GENERAL PROVISIONS
Sec. 500. Administrative practice; general provisions
(a) For the purpose of this section--
(1) ``agency'' has the meaning given it by section
551 of this title; and
(2) ``State'' means a State, a territory or
possession of the United States including a
Commonwealth, or the District of Columbia.
(b) An individual who is a member in good standing of the
bar of the highest court of a State may represent a person
before an agency on filing with the agency a written
declaration that he is currently qualified as provided by this
subsection and is authorized to represent the particular person
in whose behalf he acts.
(c) An individual who is duly qualified to practice as a
certified public accountant in a State may represent a person
before the Internal Revenue Service of the Treasury Department
on filing with that agency a written declaration that he is
currently qualified as provided by this subsection and is
authorized to represent the particular person in whose behalf
he acts.
(d) This section does not--
(1) grant or deny to an individual who is not
qualified as provided by subsection (b) or (c) of this
section the right to appear for or represent a person
before an agency or in an agency proceeding;
(2) authorize or limit the discipline, including
disbarment, of individuals who appear in a
representative capacity before an agency;
(3) authorize an individual who is a former
employee of an agency to represent a person before an
agency when the representation is prohibited by statute
or regulation; or
(4) prevent an agency from requiring a power of
attorney as a condition to the settlement of a
controversy involving the payment of money.
(e) Subsections (b)-(d) of this section do not apply to
practice before the United States Patent and Trademark Office
with respect to patent matters that continue to be covered by
chapter 3 (sections 31-33) of title 35.
(f) When a participant in a matter before an agency is
represented by an individual qualified under subsection (b) or
(c) of this section, a notice or other written communication
required or permitted to be given the participant in the matter
shall be given to the representative in addition to any other
service specifically required by statute. When a participant is
represented by more than one such qualified representative,
service on any one of the representatives is sufficient.
Sec. 501. Advertising practice; restrictions
An individual, firm, or corporation practicing before an
agency of the United States may not use the name of a Member of
either House of Congress or of an individual in the service of
the United States in advertising the business.
Sec. 502. Administrative practice; Reserves and National Guardsmen
Membership in a reserve component of the armed forces or in
the National Guard does not prevent an individual from
practicing his civilian profession or occupation before, or in
connection with, an agency of the United States.
Sec. 503. Witness fees and allowances
(a) For the purpose of this section, ``agency'' has the
meaning given it by section 5721 of this title.
(b) A witness is entitled to the fees and allowances
allowed by statute for witnesses in the courts of the United
States when--
(1) he is subpenaed under section 304(a) of this
title; or
(2) he is subpenaed to and appears at a hearing
before an agency authorized by law to hold hearings and
subpena witnesses to attend the hearings.
Sec. 504. Costs and fees of parties
(a)(1) An agency that conducts an adversary adjudication
shall award, to a prevailing party other than the United
States, fees and other expenses incurred by that party in
connection with that proceeding, unless the adjudicative
officer of the agency finds that the position of the agency was
substantially justified or that special circumstances make an
award unjust. Whether or not the position of the agency was
substantially justified shall be determined on the basis of the
administrative record, as a whole, which is made in the
adversary adjudication for which fees and other expenses are
sought.
(2) A party seeking an award of fees and other expenses
shall, within thirty days of a final disposition in the
adversary adjudication, submit to the agency an application
which shows that the party is a prevailing party and is
eligible to receive an award under this section, and the amount
sought, including an itemized statement from any attorney,
agent, or expert witness representing or appearing in behalf of
the party stating the actual time expended and the rate at
which fees and other expenses were computed. The party shall
also allege that the position of the agency was not
substantially justified. When the United States appeals the
underlying merits of an adversary adjudication, no decision on
an application for fees and other expenses in connection with
that adversary adjudication shall be made under this section
until a final and unreviewable decision is rendered by the
court on the appeal or until the underlying merits of the case
have been finally determined pursuant to the appeal.
(3) The adjudicative officer of the agency may reduce the
amount to be awarded, or deny an award, to the extent that the
party during the course of the proceedings engaged in conduct
which unduly and unreasonably protracted the final resolution
of the matter in controversy. The decision of the adjudicative
officer of the agency under this section shall be made a part
of the record containing the final decision of the agency and
shall include written findings and conclusions and the reason
or basis therefor. The decision of the agency on the
application for fees and other expenses shall be the final
administrative decision under this section.
(4) If, in an adversary adjudication arising from an agency
action to enforce a party's compliance with a statutory or
regulatory requirement, the demand by the agency is
substantially in excess of the decision of the adjudicative
officer and is unreasonable when compared with such decision,
under the facts and circumstances of the case, the adjudicative
officer shall award to the party the fees and other expenses
related to defending against the excessive demand, unless the
party has committed a willful violation of law or otherwise
acted in bad faith, or special circumstances make an award
unjust. Fees and expenses awarded under this paragraph shall be
paid only as a consequence of appropriations provided in
advance.
(b)(1) For the purposes of this section--
(A) ``fees and other expenses'' includes the
reasonable expenses of expert witnesses, the reasonable
cost of any study, analysis, engineering report, test,
or project which is found by the agency to be necessary
for the preparation of the party's case, and reasonable
attorney or agent fees (The amount of fees awarded
under this section shall be based upon prevailing
market rates for the kind and quality of the services
furnished, except that (i) no expert witness shall be
compensated at a rate in excess of the highest rate of
compensation for expert witnesses paid by the agency
involved, and (ii) attorney or agent fees shall not be
awarded in excess of $125 per hour unless the agency
determines by regulation that an increase in the cost
of living or a special factor, such as the limited
availability of qualified attorneys or agents for the
proceedings involved, justifies a higher fee.);
(B) ``party'' means a party, as defined in section
551(3) of this title, who is (i) an individual whose
net worth did not exceed $2,000,000 at the time the
adversary adjudication was initiated, or (ii) any owner
of an unincorporated business, or any partnership,
corporation, association, unit of local government, or
organization, the net worth of which did not exceed
$7,000,000 at the time the adversary adjudication was
initiated, and which had not more than 500 employees at
the time the adversary adjudication was initiated;
except that an organization described in section
501(c)(3) of the Internal Revenue Code of 1954 (26
U.S.C. 501(c)(3)) exempt from taxation under section
501(a) of such Code, or a cooperative association as
defined in section 15(a) of the Agricultural Marketing
Act (12 U.S.C. 1141j(a)), may be a party regardless of
the net worth of such organization or cooperative
association or for purposes of subsection (a)(4), a
small entity as defined in section 601;
(C) ``adversary adjudication'' means (i) an
adjudication under section 554 of this title in which
the position of the United States is represented by
counsel or otherwise, but excludes an adjudication for
the purpose of establishing or fixing a rate or for the
purpose of granting or renewing a license, (ii) any
appeal of a decision made pursuant to section 6 of the
Contract Disputes Act of 1978 (41 U.S.C. 605) before an
agency board of contract appeals as provided in section
8 of that Act (41 U.S.C. 607), (iii) any hearing
conducted under chapter 38 of title 31, and (iv) the
Religious Freedom Restoration Act of 1993;
(D) ``adjudicative officer'' means the deciding
official, without regard to whether the official is
designated as an administrative law judge, a hearing
officer or examiner, or otherwise, who presided at the
adversary adjudication;
(E) ``position of the agency'' means, in addition
to the position taken by the agency in the adversary
adjudication, the action or failure to act by the
agency upon which the adversary adjudication is based;
except that fees and other expenses may not be awarded
to a party for any portion of the adversary
adjudication in which the party has unreasonably
protracted the proceedings; and
(F) ``demand'' means the express demand of the
agency which led to the adversary adjudication, but
does not include a recitation by the agency of the
maximum statutory penalty (i) in the administrative
complaint, or (ii) elsewhere when accompanied by an
express demand for a lesser amount.
(2) Except as otherwise provided in paragraph (1), the
definitions provided in section 551 of this title apply to this
section.
(c)(1) After consultation with the Chairman of the
Administrative Conference of the United States, each agency
shall by rule establish uniform procedures for the submission
and consideration of applications for an award of fees and
other expenses. If a court reviews the underlying decision of
the adversary adjudication, an award for fees and other
expenses may be made only pursuant to section 2412(d)(3) of
title 28, United States Code.
(2) If a party other than the United States is dissatisfied
with a determination of fees and other expenses made under
subsection (a), that party may, within 30 days after the
determination is made, appeal the determination to the court of
the United States having jurisdiction to review the merits of
the underlying decision of the agency adversary adjudication.
The court's determination on any appeal heard under this
paragraph shall be based solely on the factual record made
before the agency. The court may modify the determination of
fees and other expenses only if the court finds that the
failure to make an award of fees and other expenses, or the
calculation of the amount of the award, was unsupported by
substantial evidence.
(d) Fees and other expenses awarded under this subsection
shall be paid by any agency over which the party prevails from
any funds made available to the agency by appropriation or
otherwise.
(e) The Chairman of the Administrative Conference of the
United States, after consultation with the Chief Counsel for
Advocacy of the Small Business Administration, shall report
annually to the Congress on the amount of fees and other
expenses awarded during the preceding fiscal year pursuant to
this section. The report shall describe the number, nature, and
amount of the awards, the claims involved in the controversy,
and any other relevant information which may aid the Congress
in evaluating the scope and impact of such awards. Each agency
shall provide the Chairman with such information as is
necessary for the Chairman to comply with the requirements of
this subsection.
(f) No award may be made under this section for costs,
fees, or other expenses which may be awarded under section 7430
of the Internal Revenue Code of 1986.
SUBCHAPTER II--ADMINISTRATIVE PROCEDURE
Sec. 551. Definitions
For the purpose of this subchapter--
(1) ``agency'' means each authority of the
Government of the United States, whether or not it is
within or subject to review by another agency, but does
not include--
(A) the Congress;
(B) the courts of the United States;
(C) the governments of the territories or
possessions of the United States;
(D) the government of the District of
Columbia;
or except as to the requirements of section 552 of
this title--
(E) agencies composed of representatives of
the parties or of representatives of
organizations of the parties to the disputes
determined by them;
(F) courts martial and military
commissions;
(G) military authority exercised in the
field in time of war or in occupied territory;
or
(H) functions conferred by sections 1738,
1739, 1743, and 1744 of title 12; chapter 2 of
title 41; subchapter II of chapter 471 of title
49; or sections 1884, 1891-1902, and former
section 1641(b)(2), of title 50, appendix;
(2) ``person'' includes an individual, partnership,
corporation, association, or public or private
organization other than an agency;
(3) ``party'' includes a person or agency named or
admitted as a party, or properly seeking and entitled
as of right to be admitted as a party, in an agency
proceeding, and a person or agency admitted by an
agency as a party for limited purposes;
(4) ``rule'' means the whole or a part of an agency
statement of general or particular applicability and
future effect designed to implement, interpret, or
prescribe law or policy or describing the organization,
procedure, or practice requirements of an agency and
includes the approval or prescription for the future of
rates, wages, corporate or financial structures or
reorganizations thereof, prices, facilities,
appliances, services or allowances therefor or of
valuations, costs, or accounting, or practices bearing
on any of the foregoing;
(5) ``rule making'' means agency process for
formulating, amending, or repealing a rule;
(6) ``order'' means the whole or a part of a final
disposition, whether affirmative, negative, injunctive,
or declaratory in form, of an agency in a matter other
than rule making but including licensing;
(7) ``adjudication'' means agency process for the
formulation of an order;
(8) ``license'' includes the whole or a part of an
agency permit, certificate, approval, registration,
charter, membership, statutory exemption or other form
of permission;
(9) ``licensing'' includes agency process
respecting the grant, renewal, denial, revocation,
suspension, annulment, withdrawal, limitation,
amendment, modification, or conditioning of a license;
(10) ``sanction'' includes the whole or a part of
an agency--
(A) prohibition, requirement, limitation,
or other condition affecting the freedom of a
person;
(B) withholding of relief;
(C) imposition of penalty or fine;
(D) destruction, taking, seizure, or
withholding of property;
(E) assessment of damages, reimbursement,
restitution, compensation, costs, charges, or
fees;
(F) requirement, revocation, or suspension
of a license; or
(G) taking other compulsory or restrictive
action;
(11) ``relief'' includes the whole or a part of an
agency--
(A) grant of money, assistance, license,
authority, exemption, exception, privilege, or
remedy;
(B) recognition of a claim, right,
immunity, privilege, exemption, or exception;
or
(C) taking of other action on the
application or petition of, and beneficial to,
a person;
(12) ``agency proceeding'' means an agency process
as defined by paragraphs (5), (7), and (9) of this
section;
(13) ``agency action'' includes the whole or a part
of an agency rule, order, license, sanction, relief, or
the equivalent or denial thereof, or failure to act;
and
(14) ``ex parte communication'' means an oral or
written communication not on the public record with
respect to which reasonable prior notice to all parties
is not given, but it shall not include requests for
status reports on any matter or proceeding covered by
this subchapter.
Sec. 552. Public information; agency rules, opinions, orders, records,
and proceedings
(a) Each agency shall make available to the public
information as follows:
(1) Each agency shall separately state and currently
publish in the Federal Register for the guidance of the
public--
(A) descriptions of its central and field
organization and the established places at which, the
employees (and in the case of a uniformed service, the
members) from whom, and the methods whereby, the public
may obtain information, make submittals or requests, or
obtain decisions;
(B) statements of the general course and method by
which its functions are channeled and determined,
including the nature and requirements of all formal and
informal procedures available;
(C) rules of procedure, descriptions of forms
available or the places at which forms may be obtained,
and instructions as to the scope and contents of all
papers, reports, or examinations;
(D) substantive rules of general applicability
adopted as authorized by law, and statements of general
policy or interpretations of general applicability
formulated and adopted by the agency; and
(E) each amendment, revision, or repeal of the
foregoing.
Except to the extent that a person has actual and timely notice
of the terms thereof, a person may not in any manner be
required to resort to, or be adversely affected by, a matter
required to be published in the Federal Register and not so
published. For the purpose of this paragraph, matter reasonably
available to the class of persons affected thereby is deemed
published in the Federal Register when incorporated by
reference therein with the approval of the Director of the
Federal Register.
(2) Each agency, in accordance with published rules, shall
make available for public inspection and copying--
(A) final opinions, including concurring and
dissenting opinions, as well as orders, made in the
adjudication of cases;
(B) those statements of policy and interpretations
which have been adopted by the agency and are not
published in the Federal Register;
(C) administrative staff manuals and instructions
to staff that affect a member of the public;
(D) copies of all records, regardless of form or
format, which have been released to any person under
paragraph (3) and which, because of the nature of their
subject matter, the agency determines have become or
are likely to become the subject of subsequent requests
for substantially the same records; and
(E) a general index of the records referred to
under subparagraph (D);
unless the materials are promptly published and copies offered
for sale. For records created on or after November 1, 1996,
within one year after such date, each agency shall make such
records available, including by computer telecommunications or,
if computer telecommunications means have not been established
by the agency, by other electronic means. To the extent
required to prevent a clearly unwarranted invasion of personal
privacy, an agency may delete identifying details when it makes
available or publishes an opinion, statement of policy,
interpretation, staff manual, instruction, or copies of records
referred to in subparagraph (D). However, in each case the
justification for the deletion shall be explained fully in
writing, and the extent of such deletion shall be indicated on
the portion of the record which is made available or published,
unless including that indication would harm an interest
protected by the exemption in subsection (b) under which the
deletion is made. If technically feasible, the extent of the
deletion shall be indicated at the place in the record where
the deletion was made. Each agency shall also maintain and make
available for public inspection and copying current indexes
providing identifying information for the public as to any
matter issued, adopted, or promulgated after July 4, 1967, and
required by this paragraph to be made available or published.
Each agency shall promptly publish, quarterly or more
frequently, and distribute (by sale or otherwise) copies of
each index or supplements thereto unless it determines by order
published in the Federal Register that the publication would be
unnecessary and impracticable, in which case the agency shall
nonetheless provide copies of such index on request at a cost
not to exceed the direct cost of duplication. Each agency shall
make the index referred to in subparagraph (E) available by
computer telecommunications by December 31, 1999. A final
order, opinion, statement of policy, interpretation, or staff
manual or instruction that affects a member of the public may
be relied on, used, or cited as precedent by an agency against
a party other than an agency only if--
(i) it has been indexed and either made available
or published as provided by this paragraph; or
(ii) the party has actual and timely notice of the
terms thereof.
(3)(A) Except with respect to the records made available
under paragraphs (1) and (2) of this subsection, each agency,
upon any request for records which (i) reasonably describes
such records and (ii) is made in accordance with published
rules stating the time, place, fees (if any), and procedures to
be followed, shall make the records promptly available to any
person.
(B) In making any record available to a person under this
paragraph, an agency shall provide the record in any form or
format requested by the person if the record is readily
reproducible by the agency in that form or format. Each agency
shall make reasonable efforts to maintain its records in forms
or formats that are reproducible for purposes of this section.
(C) In responding under this paragraph to a request for
records, an agency shall make reasonable efforts to search for
the records in electronic form or format, except when such
efforts would significantly interfere with the operation of the
agency's automated information system.
(D) For purposes of this paragraph, the term ``search''
means to review, manually or by automated means, agency records
for the purpose of locating those records which are responsive
to a request.
(4)(A)(i) In order to carry out the provisions of this
section, each agency shall promulgate regulations, pursuant to
notice and receipt of public comment, specifying the schedule
of fees applicable to the processing of requests under this
section and establishing procedures and guidelines for
determining when such fees should be waived or reduced. Such
schedule shall conform to the guidelines which shall be
promulgated, pursuant to notice and receipt of public comment,
by the Director of the Office of Management and Budget and
which shall provide for a uniform schedule of fees for all
agencies.
(ii) Such agency regulations shall provide that--
(I) fees shall be limited to reasonable standard
charges for document search, duplication, and review,
when records are requested for commercial use;
(II) fees shall be limited to reasonable standard
charges for document duplication when records are not
sought for commercial use and the request is made by an
educational or noncommercial scientific institution,
whose purpose is scholarly or scientific research; or a
representative of the news media; and
(III) for any request not described in (I) or (II),
fees shall be limited to reasonable standard charges
for document search and duplication.
(iii) Documents shall be furnished without any charge or at
a charge reduced below the fees established under clause (ii)
if disclosure of the information is in the public interest
because it is likely to contribute significantly to public
understanding of the operations or activities of the government
and is not primarily in the commercial interest of the
requester.
(iv) Fee schedules shall provide for the recovery of only
the direct costs of search, duplication, or review. Review
costs shall include only the direct costs incurred during the
initial examination of a document for the purposes of
determining whether the documents must be disclosed under this
section and for the purposes of withholding any portions exempt
from disclosure under this section. Review costs may not
include any costs incurred in resolving issues of law or policy
that may be raised in the course of processing a request under
this section. No fee may be charged by any agency under this
section--
(I) if the costs of routine collection and
processing of the fee are likely to equal or exceed the
amount of the fee; or
(II) for any request described in clause (ii) (II)
or (III) of this subparagraph for the first two hours
of search time or for the first one hundred pages of
duplication.
(v) No agency may require advance payment of any fee unless
the requester has previously failed to pay fees in a timely
fashion, or the agency has determined that the fee will exceed
$250.
(vi) Nothing in this subparagraph shall supersede fees
chargeable under a statute specifically providing for setting
the level of fees for particular types of records.
(vii) In any action by a requester regarding the waiver of
fees under this section, the court shall determine the matter
de novo: Provided, That the court's review of the matter shall
be limited to the record before the agency.
(B) On complaint, the district court of the United States
in the district in which the complainant resides, or has his
principal place of business, or in which the agency records are
situated, or in the District of Columbia, has jurisdiction to
enjoin the agency from withholding agency records and to order
the production of any agency records improperly withheld from
the complainant. In such a case the court shall determine the
matter de novo, and may examine the contents of such agency
records in camera to determine whether such records or any part
thereof shall be withheld under any of the exemptions set forth
in subsection (b) of this section, and the burden is on the
agency to sustain its action. In addition to any other matters
to which a court accords substantial weight, a court shall
accord substantial weight to an affidavit of an agency
concerning the agency's determination as to technical
feasibility under paragraph (2)(C) and subsection (b) and
reproducibility under paragraph (3)(B).
(C) Notwithstanding any other provision of law, the
defendant shall serve an answer or otherwise plead to any
complaint made under this subsection within thirty days after
service upon the defendant of the pleading in which such
complaint is made, unless the court otherwise directs for good
cause shown.
[(D) Repealed.]
(E) The court may assess against the United States
reasonable attorney fees and other litigation costs reasonably
incurred in any case under this section in which the
complainant has substantially prevailed.
(F) Whenever the court orders the production of any agency
records improperly withheld from the complainant and assesses
against the United States reasonable attorney fees and other
litigation costs, and the court additionally issues a written
finding that the circumstances surrounding the withholding
raise questions whether agency personnel acted arbitrarily or
capriciously with respect to the withholding, the Special
Counsel shall promptly initiate a proceeding to determine
whether disciplinary action is warranted against the officer or
employee who was primarily responsible for the withholding. The
Special Counsel, after investigation and consideration of the
evidence submitted, shall submit his findings and
recommendations to the administrative authority of the agency
concerned and shall send copies of the findings and
recommendations to the officer or employee or his
representative. The administrative authority shall take the
corrective action that the Special Counsel recommends.
(G) In the event of noncompliance with the order of the
court, the district court may punish for contempt the
responsible employee, and in the case of a uniformed service,
the responsible member.
(5) Each agency having more than one member shall maintain
and make available for public inspection a record of the final
votes of each member in every agency proceeding.
(6)(A) Each agency, upon any request for records made under
paragraph (1), (2), or (3) of this subsection, shall--
(i) determine within 20 days (excepting Saturdays,
Sundays, and legal public holidays) after the receipt
of any such request whether to comply with such request
and shall immediately notify the person making such
request of such determination and the reasons therefor,
and of the right of such person to appeal to the head
of the agency any adverse determination; and
(ii) make a determination with respect to any
appeal within twenty days (excepting Saturdays,
Sundays, and legal public holidays) after the receipt
of such appeal. If on appeal the denial of the request
for records is in whole or in part upheld, the agency
shall notify the person making such request of the
provisions for judicial review of that determination
under paragraph (4) of this subsection.
(B)(i) In unusual circumstances as specified in this
subparagraph, the time limits prescribed in either clause (i)
or clause (ii) of subparagraph (A) may be extended by written
notice to the person making such request setting forth the
unusual circumstances for such extension and the date on which
a determination is expected to be dispatched. No such notice
shall specify a date that would result in an extension for more
than ten working days, except as provided in clause (ii) of
this subparagraph.
(ii) With respect to a request for which a written notice
under clause (i) extends the time limits prescribed under
clause (i) of subparagraph (A), the agency shall notify the
person making the request if the request cannot be processed
within the time limit specified in that clause and shall
provide the person an opportunity to limit the scope of the
request so that it may be processed within that time limit or
an opportunity to arrange with the agency an alternative time
frame for processing the request or a modified request. Refusal
by the person to reasonably modify the request or arrange such
an alternative time frame shall be considered as a factor in
determining whether exceptional circumstances exist for
purposes of subparagraph (C).
(iii) As used in this subparagraph, ``unusual
circumstances'' means, but only to the extent reasonably
necessary to the proper processing of the particular requests--
(I) the need to search for and collect the
requested records from field facilities or other
establishments that are separate from the office
processing the request;
(II) the need to search for, collect, and
appropriately examine a voluminous amount of separate
and distinct records which are demanded in a single
request; or
(III) the need for consultation, which shall be
conducted with all practicable speed, with another
agency having a substantial interest in the
determination of the request or among two or more
components of the agency having substantial subject-
matter interest therein.
(iv) Each agency may promulgate regulations, pursuant to
notice and receipt of public comment, providing for the
aggregation of certain requests by the same requestor, or by a
group of requestors acting in concert, if the agency reasonably
believes that such requests actually constitute a single
request, which would otherwise satisfy the unusual
circumstances specified in this subparagraph, and the requests
involve clearly related matters. Multiple requests involving
unrelated matters shall not be aggregated.
(C)(i) Any person making a request to any agency for
records under paragraph (1), (2), or (3) of this subsection
shall be deemed to have exhausted his administrative remedies
with respect to such request if the agency fails to comply with
the applicable time limit provisions of this paragraph. If the
Government can show exceptional circumstances exist and that
the agency is exercising due diligence in responding to the
request, the court may retain jurisdiction and allow the agency
additional time to complete its review of the records. Upon any
determination by an agency to comply with a request for
records, the records shall be made promptly available to such
person making such request. Any notification of denial of any
request for records under this subsection shall set forth the
names and titles or positions of each person responsible for
the denial of such request.
(ii) For purposes of this subparagraph, the term
``exceptional circumstances'' does not include a delay that
results from a predictable agency workload of requests under
this section, unless the agency demonstrates reasonable
progress in reducing its backlog of pending requests.
(iii) Refusal by a person to reasonably modify the scope of
a request or arrange an alternative time frame for processing a
request (or a modified request) under clause (ii) after being
given an opportunity to do so by the agency to whom the person
made the request shall be considered as a factor in determining
whether exceptional circumstances exist for purposes of this
subparagraph.
(D)(i) Each agency may promulgate regulations, pursuant to
notice and receipt of public comment, providing for multitrack
processing of requests for records based on the amount of work
or time (or both) involved in processing requests.
(ii) Regulations under this subparagraph may provide a
person making a request that does not qualify for the fastest
multitrack processing an opportunity to limit the scope of the
request in order to qualify for faster processing.
(iii) This subparagraph shall not be considered to affect
the requirement under subparagraph (C) to exercise due
diligence.
(E)(i) Each agency shall promulgate regulations, pursuant
to notice and receipt of public comment, providing for
expedited processing of requests for records--
(I) in cases in which the person requesting the
records demonstrates a compelling need; and
(II) in other cases determined by the agency.
(ii) Notwithstanding clause (i), regulations under this
subparagraph must ensure--
(I) that a determination of whether to provide
expedited processing shall be made, and notice of the
determination shall be provided to the person making
the request, within 10 days after the date of the
request; and
(II) expeditious consideration of administrative
appeals of such determinations of whether to provide
expedited processing.
(iii) An agency shall process as soon as practicable any
request for records to which the agency has granted expedited
processing under this subparagraph. Agency action to deny or
affirm denial of a request for expedited processing pursuant to
this subparagraph, and failure by an agency to respond in a
timely manner to such a request shall be subject to judicial
review under paragraph (4), except that the judicial review
shall be based on the record before the agency at the time of
the determination.
(iv) A district court of the United States shall not have
jurisdiction to review an agency denial of expedited processing
of a request for records after the agency has provided a
complete response to the request.
(v) For purposes of this subparagraph, the term
``compelling need'' means--
(I) that a failure to obtain requested records on
an expedited basis under this paragraph could
reasonably be expected to pose an imminent threat to
the life or physical safety of an individual; or
(II) with respect to a request made by a person
primarily engaged in disseminating information, urgency
to inform the public concerning actual or alleged
Federal Government activity.
(vi) A demonstration of a compelling need by a person
making a request for expedited processing shall be made by a
statement certified by such person to be true and correct to
the best of such person's knowledge and belief.
(F) In denying a request for records, in whole or in part,
an agency shall make a reasonable effort to estimate the volume
of any requested matter the provision of which is denied, and
shall provide any such estimate to the person making the
request, unless providing such estimate would harm an interest
protected by the exemption in subsection (b) pursuant to which
the denial is made.
(b) This section does not apply to matters that are--
(1)(A) specifically authorized under criteria
established by an Executive order to be kept secret in
the interest of national defense or foreign policy and
(B) are in fact properly classified pursuant to such
Executive order;
(2) related solely to the internal personnel rules
and practices of an agency;
(3) specifically exempted from disclosure by
statute (other than section 552b of this title),
provided that such statute (A) requires that the
matters be withheld from the public in such a manner as
to leave no discretion on the issue, or (B) establishes
particular criteria for withholding or refers to
particular types of matters to be withheld;
(4) trade secrets and commercial or financial
information obtained from a person and privileged or
confidential;
(5) inter-agency or intra-agency memorandums or
letters which would not be available by law to a party
other than an agency in litigation with the agency;
(6) personnel and medical files and similar files
the disclosure of which would constitute a clearly
unwarranted invasion of personal privacy;
(7) records or information compiled for law
enforcement purposes, but only to the extent that the
production of such law enforcement records or
information (A) could reasonably be expected to
interfere with enforcement proceedings, (B) would
deprive a person of a right to a fair trial or an
impartial adjudication, (C) could reasonably be
expected to constitute an unwarranted invasion of
personal privacy, (D) could reasonably be expected to
disclose the identity of a confidential source,
including a State, local, or foreign agency or
authority or any private institution which furnished
information on a confidential basis, and, in the case
of a record or information compiled by criminal law
enforcement authority in the course of a criminal
investigation or by an agency conducting a lawful
national security intelligence investigation,
information furnished by a confidential source, (E)
would disclose techniques and procedures for law
enforcement investigations or prosecutions, or would
disclose guidelines for law enforcement investigations
or prosecutions if such disclosure could reasonably be
expected to risk circumvention of the law, or (F) could
reasonably be expected to endanger the life or physical
safety of any individual;
(8) contained in or related to examination,
operating, or condition reports prepared by, on behalf
of, or for the use of an agency responsible for the
regulation or supervision of financial institutions; or
(9) geological and geophysical information and
data, including maps, concerning wells.
Any reasonably segregable portion of a record shall be provided
to any person requesting such record after deletion of the
portions which are exempt under this subsection. The amount of
information deleted shall be indicated on the released portion
of the record, unless including that indication would harm an
interest protected by the exemption in this subsection under
which the deletion is made. If technically feasible, the amount
of the information deleted shall be indicated at the place in
the record where such deletion is made.
(c)(1) Whenever a request is made which involves access to
records described in subsection (b)(7)(A) and--
(A) the investigation or proceeding involves a
possible violation of criminal law; and
(B) there is reason to believe that (i) the subject
of the investigation or proceeding is not aware of its
pendency, and (ii) disclosure of the existence of the
records could reasonably be expected to interfere with
enforcement proceedings,
the agency may, during only such time as that circumstance
continues, treat the records as not subject to the requirements
of this section.
(2) Whenever informant records maintained by a criminal law
enforcement agency under an informant's name or personal
identifier are requested by a third party according to the
informant's name or personal identifier, the agency may treat
the records as not subject to the requirements of this section
unless the informant's status as an informant has been
officially confirmed.
(3) Whenever a request is made which involves access to
records maintained by the Federal Bureau of Investigation
pertaining to foreign intelligence or counterintelligence, or
international terrorism, and the existence of the records is
classified information as provided in subsection (b)(1), the
Bureau may, as long as the existence of the records remains
classified information, treat the records as not subject to the
requirements of this section.
(d) This section does not authorize withholding of
information or limit the availability of records to the public,
except as specifically stated in this section. This section is
not authority to withhold information from Congress.
(e)(1) On or before February 1 of each year, each agency
shall submit to the Attorney General of the United States a
report which shall cover the preceding fiscal year and which
shall include--
(A) the number of determinations made by the agency
not to comply with requests for records made to such
agency under subsection (a) and the reasons for each
such determination;
(B)(i) the number of appeals made by persons under
subsection (a)(6), the result of such appeals, and the
reason for the action upon each appeal that results in
a denial of information; and
(ii) a complete list of all statutes that the
agency relies upon to authorize the agency to withhold
information under subsection (b)(3), a description of
whether a court has upheld the decision of the agency
to withhold information under each such statute, and a
concise description of the scope of any information
withheld;
(C) the number of requests for records pending
before the agency as of September 30 of the preceding
year, and the median number of days that such requests
had been pending before the agency as of that date;
(D) the number of requests for records received by
the agency and the number of requests which the agency
processed;
(E) the median number of days taken by the agency
to process different types of requests;
(F) the total amount of fees collected by the
agency for processing requests; and
(G) the number of full-time staff of the agency
devoted to processing requests for records under this
section, and the total amount expended by the agency
for processing such requests.
(2) Each agency shall make each such report available to
the public including by computer telecommunications, or if
computer telecommunications means have not been established by
the agency, by other electronic means.
(3) The Attorney General of the United States shall make
each report which has been made available by electronic means
available at a single electronic access point. The Attorney
General of the United States shall notify the Chairman and
ranking minority member of the Committee on Government Reform
and Oversight of the House of Representatives and the Chairman
and ranking minority member of the Committees on Governmental
Affairs and the Judiciary of the Senate, no later than April 1
of the year in which each such report is issued, that such
reports are available by electronic means.
(4) The Attorney General of the United States, in
consultation with the Director of the Office of Management and
Budget, shall develop reporting and performance guidelines in
connection with reports required by this subsection by October
1, 1997, and may establish additional requirements for such
reports as the Attorney General determines may be useful.
(5) The Attorney General of the United States shall submit
an annual report on or before April 1 of each calendar year
which shall include for the prior calendar year a listing of
the number of cases arising under this section, the exemption
involved in each case, the disposition of such case, and the
cost, fees, and penalties assessed under subparagraphs (E),
(F), and (G) of subsection (a)(4). Such report shall also
include a description of the efforts undertaken by the
Department of Justice to encourage agency compliance with this
section.
(f) For purposes of this section, the term--
(1) ``agency'' as defined in section 551(1) of this
title includes any executive department, military
department, Government corporation, Government
controlled corporation, or other establishment in the
executive branch of the Government (including the
Executive Office of the President), or any independent
regulatory agency; and
(2) ``record'' and any other term used in this
section in reference to information includes any
information that would be an agency record subject to
the requirements of this section when maintained by an
agency in any format, including an electronic format.
(g) The head of each agency shall prepare and make publicly
available upon request, reference material or a guide for
requesting records or information from the agency, subject to
the exemptions in subsection (b), including--
(1) an index of all major information systems of
the agency;
(2) a description of major information and record
locator systems maintained by the agency; and
(3) a handbook for obtaining various types and
categories of public information from the agency
pursuant to chapter 35 of title 44, and under this
section.
Sec. 552a. Records maintained on individuals
(a) Definitions.--For purposes of this section--
(1) the term ``agency'' means agency as defined in
section 552(e) \1\ of this title;
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\1\ Reference probably should be to ``552(f)''. Section 1802(b) of
P.L. 99-570 (100 Stat. 3207-49) redesignated subsection (e) of section
552 as (f).
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(2) the term ``individual'' means a citizen of the
United States or an alien lawfully admitted for
permanent residence;
(3) the term ``maintain'' includes maintain,
collect, use, or disseminate;
(4) the term ``record'' means any item, collection,
or grouping of information about an individual that is
maintained by an agency, including, but not limited to,
his education, financial transactions, medical history,
and criminal or employment history and that contains
his name, or the identifying number, symbol, or other
identifying particular assigned to the individual, such
as a finger or voice print or a photograph;
(5) the term ``system of records'' means a group of
any records under the control of any agency from which
information is retrieved by the name of the individual
or by some identifying number, symbol, or other
identifying particular assigned to the individual;
(6) the term ``statistical record'' means a record
in a system of records maintained for statistical
research or reporting purposes only and not used in
whole or in part in making any determination about an
identifiable individual, except as provided by section
8 of title 13;
(7) the term ``routine use'' means, with respect to
the disclosure of a record, the use of such record for
a purpose which is compatible with the purpose for
which it was collected;
(8) the term ``matching program''--
(A) means any computerized comparison of--
(i) two or more automated systems
of records or a system of records with
non-Federal records for the purpose
of--
(I) establishing or
verifying the eligibility of,
or continuing compliance with
statutory and regulatory
requirements by, applicants
for, recipients or
beneficiaries of, participants
in, or providers of services
with respect to, cash or in-
kind assistance or payments
under Federal benefit programs,
or
(II) recouping payments or
delinquent debts under such
Federal benefit programs, or
(ii) two or more automated Federal
personnel or payroll systems of records
or a system of Federal personnel or
payroll records with non-Federal
records,
(B) but does not include--
(i) matches performed to produce
aggregate statistical data without any
personal identifiers;
(ii) matches performed to support
any research or statistical project,
the specific data of which may not be
used to make decisions concerning the
rights, benefits, or privileges of
specific individuals;
(iii) matches performed, by an
agency (or component thereof) which
performs as its principal function any
activity pertaining to the enforcement
of criminal laws, subsequent to the
initiation of a specific criminal or
civil law enforcement investigation of
a named person or persons for the
purpose of gathering evidence against
such person or persons;
(iv) matches of tax information (I)
pursuant to section 6103(d) of the
Internal Revenue Code of 1986, (II) for
purposes of tax administration as
defined in section 6103(b)(4) of such
Code, (III) for the purpose of
intercepting a tax refund due an
individual under authority granted by
section 404(e), 464, or 1137 of the
Social Security Act; or (IV) for the
purpose of intercepting a tax refund
due an individual under any other tax
refund intercept program authorized by
statute which has been determined by
the Director of the Office of
Management and Budget to contain
verification, notice, and hearing
requirements that are substantially
similar to the procedures in section
1137 of the Social Security Act;
(v) matches--
(I) using records
predominantly relating to
Federal personnel, that are
performed for routine
administrative purposes
(subject to guidance provided
by the Director of the Office
of Management and Budget
pursuant to subsection (v)); or
(II) conducted by an agency
using only records from systems
of records maintained by that
agency;
if the purpose of the match is not to
take any adverse financial, personnel,
disciplinary, or other adverse action
against Federal personnel;
(vi) matches performed for foreign
counterintelligence purposes or to
produce background checks for security
clearances of Federal personnel or
Federal contractor personnel;
(vii) matches performed incident to
a levy described in section 6103(k)(8)
of the Internal Revenue Code of 1986;
or
(viii) matches performed pursuant
to section 202(x)(3) or 1611(e)(1) of
the Social Security Act (42 U.S.C.
402(x)(3), 1382(e)(1));
(9) the term ``recipient agency'' means any agency,
or contractor thereof, receiving records contained in a
system of records from a source agency for use in a
matching program;
(10) the term ``non-Federal agency'' means any
State or local government, or agency thereof, which
receives records contained in a system of records from
a source agency for use in a matching program;
(11) the term ``source agency'' means any agency
which discloses records contained in a system of
records to be used in a matching program, or any State
or local government, or agency thereof, which discloses
records to be used in a matching program;
(12) the term ``Federal benefit program'' means any
program administered or funded by the Federal
Government, or by any agent or State on behalf of the
Federal Government, providing cash or in-kind
assistance in the form of payments, grants, loans, or
loan guarantees to individuals; and
(13) the term ``Federal personnel'' means officers
and employees of the Government of the United States,
members of the uniformed services (including members of
the Reserve Components), individuals entitled to
receive immediate or deferred retirement benefits under
any retirement program of the Government of the United
States (including survivor benefits).
(b) Conditions of Disclosure.--No agency shall disclose any
record which is contained in a system of records by any means
of communication to any person, or to another agency, except
pursuant to a written request by, or with the prior written
consent of, the individual to whom the record pertains, unless
disclosure of the record would be--
(1) to those officers and employees of the agency
which maintains the record who have a need for the
record in the performance of their duties;
(2) required under section 552 of this title;
(3) for a routine use as defined in subsection
(a)(7) of this section and described under subsection
(e)(4)(D) of this section;
(4) to the Bureau of the Census for purposes of
planning or carrying out a census or survey or related
activity pursuant to the provisions of title 13;
(5) to a recipient who has provided the agency with
advance adequate written assurance that the record will
be used solely as a statistical research or reporting
record, and the record is to be transferred in a form
that is not individually identifiable;
(6) to the National Archives and Records
Administration as a record which has sufficient
historical or other value to warrant its continued
preservation by the United States Government, or for
evaluation by the Archivist of the United States or the
designee of the Archivist to determine whether the
record has such value;
(7) to another agency or to an instrumentality of
any governmental jurisdiction within or under the
control of the United States for a civil or criminal
law enforcement activity if the activity is authorized
by law, and if the head of the agency or
instrumentality has made a written request to the
agency which maintains the record specifying the
particular portion desired and the law enforcement
activity for which the record is sought;
(8) to a person pursuant to a showing of compelling
circumstances affecting the health or safety of an
individual if upon such disclosure notification is
transmitted to the last known address of such
individual;
(9) to either House of Congress, or, to the extent
of matter within its jurisdiction, any committee or
subcommittee thereof, \1\ any joint committee of
Congress or subcommittee of any such joint committee;
---------------------------------------------------------------------------
\1\ So in law; ``thereof,'' should probably be ``thereof or''.
---------------------------------------------------------------------------
(10) to the Comptroller General, or any of his
authorized representatives, in the course of the
performance of the duties of the General Accounting
Office;
(11) pursuant to the order of a court of competent
jurisdiction; and \2\
---------------------------------------------------------------------------
\2\ So in law. Probably should be ``; or''.
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(12) to a consumer reporting agency in accordance
with section 3711(e) of title 31.
(c) Accounting of Certain Disclosures.--Each agency, with
respect to each system of records under its control shall--
(1) except for disclosures made under subsections
(b)(1) or (b)(2) of this section, keep an accurate
accounting of--
(A) the date, nature, and purpose of each
disclosure of a record to any person or to
another agency made under subsection (b) of
this section; and
(B) the name and address of the person or
agency to whom the disclosure is made;
(2) retain the accounting made under paragraph (1)
of this subsection for at least five years or the life
of the record, whichever is longer, after the
disclosure for which the accounting is made;
(3) except for disclosures made under subsection
(b)(7) of this section, make the accounting made under
paragraph (1) of this subsection available to the
individual named in the record at his request; and
(4) inform any person or other agency about any
correction or notation of dispute made by the agency in
accordance with subsection (d) of this section of any
record that has been disclosed to the person or agency
if an accounting of the disclosure was made.
(d) Access to Records.--Each agency that maintains a system
of records shall--
(1) upon request by any individual to gain access
to his record or to any information pertaining to him
which is contained in the system, permit him and upon
his request, a person of his own choosing to accompany
him, to review the record and have a copy made of all
or any portion thereof in a form comprehensible to him,
except that the agency may require the individual to
furnish a written statement authorizing discussion of
that individual's record in the accompanying person's
presence;
(2) permit the individual to request amendment of a
record pertaining to him and--
(A) not later than 10 days (excluding
Saturdays, Sundays, and legal public holidays)
after the date of receipt of such request,
acknowledge in writing such receipt; and
(B) promptly, either--
(i) make any correction of any
portion thereof which the individual
believes is not accurate, relevant,
timely, or complete; or
(ii) inform the individual of its
refusal to amend the record in
accordance with his request, the reason
for the refusal, the procedures
established by the agency for the
individual to request a review of that
refusal by the head of the agency or an
officer designated by the head of the
agency, and the name and business
address of that official;
(3) permit the individual who disagrees with the
refusal of the agency to amend his record to request a
review of such refusal, and not later than 30 days
(excluding Saturdays, Sundays, and legal public
holidays) from the date on which the individual
requests such review, complete such review and make a
final determination unless, for good cause shown, the
head of the agency extends such 30-day period; and if,
after his review, the reviewing official also refuses
to amend the record in accordance with the request,
permit the individual to file with the agency a concise
statement setting forth the reasons for his
disagreement with the refusal of the agency, and notify
the individual of the provisions for judicial review of
the reviewing official's determination under subsection
(g)(1)(A) of this section;
(4) in any disclosure, containing information about
which the individual has filed a statement of
disagreement, occurring after the filing of the
statement under paragraph (3) of this subsection,
clearly note any portion of the record which is
disputed and provide copies of the statement and, if
the agency deems it appropriate, copies of a concise
statement of the reasons of the agency for not making
the amendments requested, to persons or other agencies
to whom the disputed record has been disclosed; and
(5) nothing in this section shall allow an
individual access to any information compiled in
reasonable anticipation of a civil action or
proceeding. \1\
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\1\ So in law. Paragraph (5) should probably be a separate
sentence.
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(e) Agency Requirements.--Each agency that maintains a
system of records shall--
(1) maintain in its records only such information
about an individual as is relevant and necessary to
accomplish a purpose of the agency required to be
accomplished by statute or by executive order of the
President;
(2) collect information to the greatest extent
practicable directly from the subject individual when
the information may result in adverse determinations
about an individual's rights, benefits, and privileges
under Federal programs;
(3) inform each individual whom it asks to supply
information, on the form which it uses to collect the
information or on a separate form that can be retained
by the individual--
(A) the authority (whether granted by
statute, or by executive order of the
President) which authorizes the solicitation of
the information and whether disclosure of such
information is mandatory or voluntary;
(B) the principal purpose or purposes for
which the information is intended to be used;
(C) the routine uses which may be made of
the information, as published pursuant to
paragraph (4)(D) of this subsection; and
(D) the effects on him, if any, of not
providing all or any part of the requested
information;
(4) subject to the provisions of paragraph (11) of
this subsection, publish in the Federal Register upon
establishment or revision a notice of the existence and
character of the system of records, which notice shall
include--
(A) the name and location of the system;
(B) the categories of individuals on whom
records are maintained in the system;
(C) the categories of records maintained in
the system;
(D) each routine use of the records
contained in the system, including the
categories of users and the purpose of such
use;
(E) the policies and practices of the
agency regarding storage, retrievability,
access controls, retention, and disposal of the
records;
(F) the title and business address of the
agency official who is responsible for the
system of records;
(G) the agency procedures whereby an
individual can be notified at his request if
the system of records contains a record
pertaining to him;
(H) the agency procedures whereby an
individual can be notified at his request how
he can gain access to any record pertaining to
him contained in the system of records, and how
he can contest its content; and
(I) the categories of sources of records in
the system;
(5) maintain all records which are used by the
agency in making any determination about any individual
with such accuracy, relevance, timeliness, and
completeness as is reasonably necessary to assure
fairness to the individual in the determination;
(6) prior to disseminating any record about an
individual to any person other than an agency, unless
the dissemination is made pursuant to subsection (b)(2)
of this section, make reasonable efforts to assure that
such records are accurate, complete, timely, and
relevant for agency purposes;
(7) maintain no record describing how any
individual exercises rights guaranteed by the First
Amendment unless expressly authorized by statute or by
the individual about whom the record is maintained or
unless pertinent to and within the scope of an
authorized law enforcement activity;
(8) make reasonable efforts to serve notice on an
individual when any record on such individual is made
available to any person under compulsory legal process
when such process becomes a matter of public record;
(9) establish rules of conduct for persons involved
in the design, development, operation, or maintenance
of any system of records, or in maintaining any record,
and instruct each such person with respect to such
rules and the requirements of this section, including
any other rules and procedures adopted pursuant to this
section and the penalties for noncompliance;
(10) establish appropriate administrative,
technical, and physical safeguards to insure the
security and confidentiality of records and to protect
against any anticipated threats or hazards to their
security or integrity which could result in substantial
harm, embarrassment, inconvenience, or unfairness to
any individual on whom information is maintained;
(11) at least 30 days prior to publication of
information under paragraph (4)(D) of this subsection,
publish in the Federal Register notice of any new use
or intended use of the information in the system, and
provide an opportunity for interested persons to submit
written data, views, or arguments to the agency; and
(12) if such agency is a recipient agency or a
source agency in a matching program with a non-Federal
agency, with respect to any establishment or revision
of a matching program, at least 30 days prior to
conducting such program, publish in the Federal
Register notice of such establishment or revision.
(f) Agency Rules.--In order to carry out the provisions of
this section, each agency that maintains a system of records
shall promulgate rules, in accordance with the requirements
(including general notice) of section 553 of this title, which
shall--
(1) establish procedures whereby an individual can
be notified in response to his request if any system of
records named by the individual contains a record
pertaining to him;
(2) define reasonable times, places, and
requirements for identifying an individual who requests
his record or information pertaining to him before the
agency shall make the record or information available
to the individual;
(3) establish procedures for the disclosure to an
individual upon his request of his record or
information pertaining to him, including special
procedure, if deemed necessary, for the disclosure to
an individual of medical records, including
psychological records pertaining to him;
(4) establish procedures for reviewing a request
from an individual concerning the amendment of any
record or information pertaining to the individual, for
making a determination on the request, for an appeal
within the agency of an initial adverse agency
determination, and for whatever additional means may be
necessary for each individual to be able to exercise
fully his rights under this section; and
(5) establish fees to be charged, if any, to any
individual for making copies of his record, excluding
the cost of any search for and review of the record.
The Office of the Federal Register shall biennially compile and
publish the rules promulgated under this subsection and agency
notices published under subsection (e)(4) of this section in a
form available to the public at low cost.
(g)(1) Civil Remedies.--Whenever any agency--
(A) makes a determination under subsection (d)(3)
of this section not to amend an individual's record in
accordance with his request, or fails to make such
review in conformity with that subsection;
(B) refuses to comply with an individual request
under subsection (d)(1) of this section;
(C) fails to maintain any record concerning any
individual with such accuracy, relevance, timeliness,
and completeness as is necessary to assure fairness in
any determination relating to the qualifications,
character, rights, or opportunities of, or benefits to
the individual that may be made on the basis of such
record, and consequently a determination is made which
is adverse to the individual; or
(D) fails to comply with any other provision of
this section, or any rule promulgated thereunder, in
such a way as to have an adverse effect on an
individual,
the individual may bring a civil action against the agency, and
the district courts of the United States shall have
jurisdiction in the matters under the provisions of this
subsection.
(2)(A) In any suit brought under the provisions of
subsection (g)(1)(A) of this section, the court may order the
agency to amend the individual's record in accordance with his
request or in such other way as the court may direct. In such a
case the court shall determine the matter de novo.
(B) The court may assess against the United States
reasonable attorney fees and other litigation costs reasonably
incurred in any case under this paragraph in which the
complainant has substantially prevailed.
(3)(A) In any suit brought under the provisions of
subsection (g)(1)(B) of this section, the court may enjoin the
agency from withholding the records and order the production to
the complainant of any agency records improperly withheld from
him. In such a case the court shall determine the matter de
novo, and may examine the contents of any agency records in
camera to determine whether the records or any portion thereof
may be withheld under any of the exemptions set forth in
subsection (k) of this section, and the burden is on the agency
to sustain its action.
(B) The court may assess against the United States
reasonable attorney fees and other litigation costs reasonably
incurred in any case under this paragraph in which the
complainant has substantially prevailed.
(4) In any suit brought under the provisions of subsection
(g)(1)(C) or (D) of this section in which the court determines
that the agency acted in a manner which was intentional or
willful, the United States shall be liable to the individual in
an amount equal to the sum of--
(A) actual damages sustained by the individual as a
result of the refusal or failure, but in no case shall
a person entitled to recovery receive less than the sum
of $1,000; and
(B) the costs of the action together with
reasonable attorney fees as determined by the court.
(5) An action to enforce any liability created under this
section may be brought in the district court of the United
States in the district in which the complainant resides, or has
his principal place of business, or in which the agency records
are situated, or in the District of Columbia, without regard to
the amount in controversy, within two years from the date on
which the cause of action arises, except that where an agency
has materially and willfully misrepresented any information
required under this section to be disclosed to an individual
and the information so misrepresented is material to
establishment of the liability of the agency to the individual
under this section, the action may be brought at any time
within two years after discovery by the individual of the
misrepresentation. Nothing in this section shall be construed
to authorize any civil action by reason of any injury sustained
as the result of a disclosure of a record prior to September
27, 1975.
(h) Rights of Legal Guardians.--For the purposes of this
section, the parent of any minor, or the legal guardian of any
individual who has been declared to be incompetent due to
physical or mental incapacity or age by a court of competent
jurisdiction, may act on behalf of the individual.
(i)(1) Criminal Penalties.--Any officer or employee of an
agency, who by virtue of his employment or official position,
has possession of, or access to, agency records which contain
individually identifiable information the disclosure of which
is prohibited by this section or by rules or regulations
established thereunder, and who knowing that disclosure of the
specific material is so prohibited, willfully discloses the
material in any manner to any person or agency not entitled to
receive it, shall be guilty of a misdemeanor and fined not more
than $5,000.
(2) Any officer or employee of any agency who willfully
maintains a system of records without meeting the notice
requirements of subsection (e)(4) of this section shall be
guilty of a misdemeanor and fined not more than $5,000.
(3) Any person who knowingly and willfully requests or
obtains any record concerning an individual from an agency
under false pretenses shall be guilty of a misdemeanor and
fined not more than $5,000.
(j) General Exemptions.--The head of any agency may
promulgate rules, in accordance with the requirements
(including general notice) of sections 553(b)(1), (2), and (3),
(c), and (e) of this title, to exempt any system of records
within the agency from any part of this section except
subsections (b), (c)(1) and (2), (e)(4)(A) through (F), (e)(6),
(7), (9), (10), and (11), and (i) if the system of records is--
(1) maintained by the Central Intelligence Agency;
or
(2) maintained by an agency or component thereof
which performs as its principal function any activity
pertaining to the enforcement of criminal laws,
including police efforts to prevent, control, or reduce
crime or to apprehend criminals, and the activities of
prosecutors, courts, correctional, probation, pardon,
or parole authorities, and which consists of (A)
information compiled for the purpose of identifying
individual criminal offenders and alleged offenders and
consisting only of identifying data and notations of
arrests, the nature and disposition of criminal
charges, sentencing, confinement, release, and parole
and probation status; (B) information compiled for the
purpose of a criminal investigation, including reports
of informants and investigators, and associated with an
identifiable individual; or (C) reports identifiable to
an individual compiled at any stage of the process of
enforcement of the criminal laws from arrest or
indictment through release from supervision.
At the time rules are adopted under this subsection, the agency
shall include in the statement required under section 553(c) of
this title, the reasons why the system of records is to be
exempted from a provision of this section.
(k) Specific Exemptions.--The head of any agency may
promulgate rules, in accordance with the requirements
(including general notice) of sections 553(b)(1), (2), and (3),
(c), and (e) of this title, to exempt any system of records
within the agency from subsections (c)(3), (d), (e)(1),
(e)(4)(G), (H), and (I) and (f) of this section if the system
of records is--
(1) subject to the provisions of section 552(b)(1)
of this title;
(2) investigatory material compiled for law
enforcement purposes, other than material within the
scope of subsection (j)(2) of this section: Provided,
however, That if any individual is denied any right,
privilege, or benefit that he would otherwise be
entitled by Federal law, or for which he would
otherwise be eligible, as a result of the maintenance
of such material, such material shall be provided to
such individual, except to the extent that the
disclosure of such material would reveal the identity
of a source who furnished information to the Government
under an express promise that the identity of the
source would be held in confidence, or, prior to the
effective date of this section, under an implied
promise that the identity of the source would be held
in confidence;
(3) maintained in connection with providing
protective services to the President of the United
States or other individuals pursuant to section 3056 of
title 18;
(4) required by statute to be maintained and used
solely as statistical records;
(5) investigatory material compiled solely for the
purpose of determining suitability, eligibility, or
qualifications for Federal civilian employment,
military service, Federal contracts, or access to
classified information, but only to the extent that the
disclosure of such material would reveal the identity
of a source who furnished information to the Government
under an express promise that the identity of the
source would be held in confidence, or, prior to the
effective date of this section, under an implied
promise that the identity of the source would be held
in confidence;
(6) testing or examination material used solely to
determine individual qualifications for appointment or
promotion in the Federal service the disclosure of
which would compromise the objectivity or fairness of
the testing or examination process; or
(7) evaluation material used to determine potential
for promotion in the armed services, but only to the
extent that the disclosure of such material would
reveal the identity of a source who furnished
information to the Government under an express promise
that the identity of the source would be held in
confidence, or, prior to the effective date of this
section, under an implied promise that the identity of
the source would be held in confidence.
At the time rules are adopted under this subsection, the agency
shall include in the statement required under section 553(c) of
this title, the reasons why the system of records is to be
exempted from a provision of this section.
(l)(1) Archival Records.--Each agency record which is
accepted by the Archivist of the United States for storage,
processing, and servicing in accordance with section 3103 of
title 44 shall, for the purposes of this section, be considered
to be maintained by the agency which deposited the record and
shall be subject to the provisions of this section. The
Archivist of the United States shall not disclose the record
except to the agency which maintains the record, or under rules
established by that agency which are not inconsistent with the
provisions of this section.
(2) Each agency record pertaining to an identifiable
individual which was transferred to the National Archives of
the United States as a record which has sufficient historical
or other value to warrant its continued preservation by the
United States Government, prior to the effective date of this
section, shall, for the purposes of this section, be considered
to be maintained by the National Archives and shall not be
subject to the provisions of this section, except that a
statement generally describing such records (modeled after the
requirements relating to records subject to subsections
(e)(4)(A) through (G) of this section) shall be published in
the Federal Register.
(3) Each agency record pertaining to an identifiable
individual which is transferred to the National Archives of the
United States as a record which has sufficient historical or
other value to warrant its continued preservation by the United
States Government, on or after the effective date of this
section, shall, for the purposes of this section, be considered
to be maintained by the National Archives and shall be exempt
from the requirements of this section except subsections
(e)(4)(A) through (G) and (e)(9) of this section.
(m) Government Contractors.--(1) When an agency provides by
a contract for the operation by or on behalf of the agency of a
system of records to accomplish an agency function, the agency
shall, consistent with its authority, cause the requirements of
this section to be applied to such system. For purposes of
subsection (i) of this section any such contractor and any
employee of such contractor, if such contract is agreed to on
or after the effective date of this section, shall be
considered to be an employee of an agency.
(2) A consumer reporting agency to which a record is
disclosed under section 3711(e) of title 31 shall not be
considered a contractor for the purposes of this section.
(n) Mailing Lists.--An individual's name and address may
not be sold or rented by an agency unless such action is
specifically authorized by law. This provision shall not be
construed to require the withholding of names and addresses
otherwise permitted to be made public.
(o) Matching Agreements.--(1) No record which is contained
in a system of records may be disclosed to a recipient agency
or non-Federal agency for use in a computer matching program
except pursuant to a written agreement between the source
agency and the recipient agency or non-Federal agency
specifying--
(A) the purpose and legal authority for conducting
the program;
(B) the justification for the program and the
anticipated results, including a specific estimate of
any savings;
(C) a description of the records that will be
matched, including each data element that will be used,
the approximate number of records that will be matched,
and the projected starting and completion dates of the
matching program;
(D) procedures for providing individualized notice
at the time of application, and notice periodically
thereafter as directed by the Data Integrity Board of
such agency (subject to guidance provided by the
Director of the Office of Management and Budget
pursuant to subsection (v)), to--
(i) applicants for and recipients of
financed assistance or payments under Federal
benefit programs, and
(ii) applicants for and holders of
positions as Federal personnel,
that any information provided by such applicants,
recipients, holders, and individuals may be subject to
verification through matching programs;
(E) procedures for verifying information produced
in such matching program as required by subsection (p);
(F) procedures for the retention and timely
destruction of identifiable records created by a
recipient agency or non-Federal agency in such matching
program;
(G) procedures for ensuring the administrative,
technical, and physical security of the records matched
and the results of such programs;
(H) prohibitions on duplication and redisclosure of
records provided by the source agency within or outside
the recipient agency or the non-Federal agency, except
where required by law or essential to the conduct of
the matching program;
(I) procedures governing the use by a recipient
agency or non-Federal agency of records provided in a
matching program by a source agency, including
procedures governing return of the records to the
source agency or destruction of records used in such
program;
(J) information on assessments that have been made
on the accuracy of the records that will be used in
such matching program; and
(K) that the Comptroller General may have access to
all records of a recipient agency or a non-Federal
agency that the Comptroller General deems necessary in
order to monitor or verify compliance with the
agreement.
(2)(A) A copy of each agreement entered into pursuant to
paragraph (1) shall--
(i) be transmitted to the Committee on Governmental
Affairs of the Senate and the Committee on Government
Operations \1\ of the House of Representatives; and
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\1\ The Committee on Government Operations was renamed to the
Committee on Government Reform and Oversight by H. Res. 6 in the 104th
Congress, and renamed the Committee on Government Reform by H. Res. 5
in the 106th Congress.
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(ii) be available upon request to the public.
(B) No such agreement shall be effective until 30 days
after the date on which such a copy is transmitted pursuant to
subparagraph (A)(i).
(C) Such an agreement shall remain in effect only for such
period, not to exceed 18 months, as the Data Integrity Board of
the agency determines is appropriate in light of the purposes,
and length of time necessary for the conduct, of the matching
program.
(D) Within 3 months prior to the expiration of such an
agreement pursuant to subparagraph (C), the Data Integrity
Board of the agency may, without additional review, renew the
matching agreement for a current, ongoing matching program for
not more than one additional year if--
(i) such program will be conducted without any
change; and
(ii) each party to the agreement certifies to the
Board in writing that the program has been conducted in
compliance with the agreement.
(p) Verification and Opportunity to Contest Findings.--(1)
In order to protect any individual whose records are used in a
matching program, no recipient agency, non-Federal agency, or
source agency may suspend, terminate, reduce, or make a final
denial of any financial assistance or payment under a Federal
benefit program to such individual, or take other adverse
action against such individual, as a result of information
produced by such matching program, until--
(A)(i) the agency has independently verified the
information; or
(ii) the Data Integrity Board of the agency, or in
the case of a non-Federal agency the Data Integrity
Board of the source agency, determines in accordance
with guidance issued by the Director of the Office of
Management and Budget that--
(I) the information is limited to
identification and amount of benefits paid by
the source agency under a Federal benefit
program; and
(II) there is a high degree of confidence
that the information provided to the recipient
agency is accurate;
(B) the individual receives a notice from the
agency containing a statement of its findings and
informing the individual of the opportunity to contest
such findings; and
(C)(i) the expiration of any time period
established for the program by statue or regulation for
the individual to respond to that notice; or
(ii) in the case of a program for which no such
period is established, the end of the 30-day period
beginning on the date on which notice under
subparagraph (B) is mailed or otherwise provided to the
individual.
(2) Independent verification referred to in paragraph (1)
requires investigation and confirmation of specific information
relating to an individual that is used as a basis for an
adverse action against the individual, including where
applicable investigation and confirmation of--
(A) the amount of any asset or income involved;
(B) whether such individual actually has or had
access to such asset or income for such individual's
own use; and
(C) the period or periods when the individual
actually had such asset or income.
(3) Notwithstanding paragraph (1), an agency may take any
appropriate action otherwise prohibited by such paragraph if
the agency determines that the public health or public safety
may be adversely affected or significantly threatened during
any notice period required by such paragraph.
(q) Sanctions.--(1) Notwithstanding any other provision of
law, no source agency may disclose any record with is contained
in a system of records to a recipient agency or non-Federal
agency for a matching program if such source agency has reason
to believe that the requirements of subsection (p), or any
matching agreement entered into pursuant to subsection (o), or
both, are not being met by such recipient agency.
(2) No source agency may renew a matching agreement
unless--
(A) the recipient agency or non-Federal agency has
certified that it has complied with the provisions of
that agreement; and
(B) the source agency has no reason to believe that
the certification is inaccurate.
(r) Report on New Systems and Matching Programs.-- Each
agency that proposes to establish or make a significant change
in a system of records or a matching program shall provide
adequate advance notice of any such proposal (in duplicate) to
the Committee on Government Operations \1\ of the House of
Representatives, the Committee on Governmental Affairs of the
Senate, and the Office of Management and Budget in order to
permit an evaluation of the probable or potential effect of
such proposal on the privacy or other rights of individuals.
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\1\ The Committee on Government Operations was renamed to the
Committee on Government Reform and Oversight by H. Res. 6 in the 104th
Congress, and renamed the Committee on Government Reform by H. Res. 5
in the 106th Congress.
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(s) Biennial Report.--The President shall biennially submit
to the Speaker of the House of Representatives and the
President pro tempore of the Senate a report--
(1) describing the actions of the Director of the
Office of Management and Budget pursuant to section 6
of the Privacy Act of 1974 during the preceding 2
years;
(2) describing the exercise of individual rights of
access and amendment under this section during such
years;
(3) identifying changes in or additions to systems
of records;
(4) containing such other information concerning
administration of this section as may be necessary or
useful to the Congress in reviewing the effectiveness
of this section in carrying out the purposes of the
Privacy Act of 1974.
(t)(1) Effect of Other Laws.--No agency shall rely on any
exemption contained in section 552 of this title to withhold
from an individual any record which is otherwise accessible to
such individual under the provisions of this section.
(2) No agency shall rely on any exemption in this section
to withhold from an individual any record which is otherwise
accessible to such individual under the provisions of section
552 of this title.
(u) Data Integrity Boards.--(1) Every agency conducting or
participating in a matching program shall establish a Data
Integrity Board to oversee and coordinate among the various
components of such agency the agency's implementation of this
section.
(2) Each Data Integrity Board shall consist of senior
officials designated by the head of the agency, and shall
include any senior official designated by the head of the
agency as responsible for implementation of this section, and
the inspector general of the agency, if any. The inspector
general shall not serve as chairman of the Data Integrity
Board.
(3) Each Data Integrity Board--
(A) shall review, approve, and maintain all written
agreements for receipt or disclosure of agency records
for matching programs to ensure compliance with
subsection (o), and all relevant statutes, regulations,
and guidelines;
(B) shall review all matching programs in which the
agency has participated during the year, either as a
source agency or recipient agency, determine compliance
with applicable laws, regulations, guidelines, and
agency agreements, and assess the costs and benefits of
such programs;
(C) shall review all recurring matching programs in
which the agency has participated during the year,
either as a source agency or recipient agency, for
continued justification for such disclosures;
(D) shall compile an annual report, which shall be
submitted to the head of the agency and the Office of
Management and Budget and made available to the public
on request, describing the matching activities of the
agency, including--
(i) matching programs in which the agency
has participated as a source agency or
recipient agency;
(ii) matching agreements proposed under
subsection (o) that were disapproved by the
Board;
(iii) any changes in membership to
structure of the Board in the preceding year;
(iv) the reasons for any waiver of the
requirement in paragraph (4) of this section
for completion and submission of a cost-benefit
analysis prior to the approval of a matching
program;
(v) any violations of matching agreements
that have been alleged or identified and any
corrective action taken; and
(vi) any other information required by the
Director of the Office of Management and Budget
to be included in such report;
(E) shall serve as a clearinghouse for receiving
and providing information on the accuracy,
completeness, and reliability of records used in
matching programs;
(F) shall provide interpretation and guidance to
agency components and personnel on the requirements of
this section for matching programs;
(G) shall review agency recordkeeping and disposal
policies and practices for matching programs to assure
compliance with this section; and
(H) may review and report on any agency matching
activities that are not matching programs.
(4)(A) Except as provided in subparagraphs (B) and (C), a
Data Integrity Board shall not approve any written agreement
for a matching program unless the agency has completed and
submitted to such Board a cost-benefit analysis of the proposed
program and such analysis demonstrates that the program is
likely to be cost effective.
(B) The Board may waive the requirements of subparagraph
(A) of this paragraph if it determines in writing, in
accordance with guidelines prescribed by the Director of the
Office of Management and Budget, that a cost-benefit analysis
is not required.
(C) A cost-benefit analysis shall not be required under
subparagraph (A) prior to the initial approval of a written
agreement for a matching program that is specifically required
by statute. Any subsequent written agreement for such a program
shall not be approved by the Data Integrity Board unless the
agency has submitted a cost-benefit analysis of the program as
conducted under the preceding approval of such agreement.
(5)(A) If a matching agreement is disapproved by a Data
Integrity Board, any party to such agreement may appeal the
disapproval to the Director of the Office of Management and
Budget. Timely notice of the filing of such an appeal shall be
provided by the Director of the Office of Management and Budget
to the Committee on Governmental Affairs of the Senate and the
Committee on Government Operations \1\ of the House of
Representatives.
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\1\ The Committee on Government Operations was renamed to the
Committee on Government Reform and Oversight by H. Res. 6 in the 104th
Congress, and renamed the Committee on Government Reform by H. Res. 5
in the 106th Congress.
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(B) The Director of the Office of Management and Budget may
approve a matching agreement notwithstanding the disapproval of
a Data Integrity Board if the Director determines that--
(i) the matching program will be consistent with
all applicable legal, regulatory, and policy
requirements;
(ii) there is adequate evidence that the matching
agreement will be cost-effective; and
(iii) the matching program is in the public
interest.
(C) The decision of the Director to approve a matching
agreement shall not take effect until 30 days after it is
reported to committees described in subparagraph (A).
(D) If the Data Integrity Board and the Director of the
Office of Management and Budget disapprove a matching program
proposed by the inspector general of an agency, the inspector
general may report the disapproval to the head of the agency
and to the Congress.
(6) In the reports required by paragraph (3)(D), agency
matching activities that are not matching programs may be
reported on an aggregate basis, if and to the extent necessary
to protect ongoing law enforcement or counterintelligence
investigations.
(v) Office of Management and Budget Responsibilities.--The
Director of the Office of Management and Budget shall--
(1) develop and, after notice and opportunity for
public comment, prescribe guidelines and regulations
for the use of agencies in implementing the provisions
of this section; and
(2) provide continuing assistance to an oversight
of the implementation of this section by agencies.
Sec. 552b. Open meetings
(a) For purposes of this section--
(1) the term ``agency'' means any agency, as
defined in section 552(e) of this title, headed by a
collegial body composed of two or more individual
members, a majority of whom are appointed to such
position by the President with the advice and consent
of the Senate, and any subdivision thereof authorized
to act on behalf of the agency;
(2) the term ``meeting'' means the deliberations of
at least the number of individual agency members
required to take action on behalf of the agency where
such deliberations determine or result in the joint
conduct or disposition of official agency business, but
does not include deliberations required or permitted by
subsection (d) or (e); and
(3) the term ``member'' means an individual who
belongs to a collegial body heading an agency.
(b) Members shall not jointly conduct or dispose of agency
business other than in accordance with this section. Except as
provided in subsection (c), every portion of every meeting of
an agency shall be open to public observation.
(c) Except in a case where the agency finds that the public
interest requires otherwise, the second sentence of subsection
(b) shall not apply to any portion of an agency meeting, and
the requirements of subsections (d) and (e) shall not apply to
any information pertaining to such meeting otherwise required
by this section to be disclosed to the public, where the agency
properly determines that such portion or portions of its
meeting or the disclosure of such information is likely to--
(1) disclose matters that are (A) specifically
authorized under criteria established by an Executive
order to be kept secret in the interests of national
defense or foreign policy and (B) in fact properly
classified pursuant to such Executive order;
(2) relate solely to the internal personnel rules
and practices of an agency;
(3) disclose matters specifically exempted from
disclosure by statute (other than section 552 of this
title), provided that such statute (A) requires that
the matters be withheld from the public in such a
manner as to leave no discretion on the issue, or (B)
establishes particular criteria for withholding or
refers to particular types of matters to be withheld;
(4) disclose trade secrets and commercial or
financial information obtained from a person and
privileged or confidential;
(5) involve accusing any person of a crime, or
formally censuring any person;
(6) disclose information of a personal nature where
disclosure would constitute a clearly unwarranted
invasion of personal privacy;
(7) disclose investigatory records compiled for law
enforcement purposes, or information which if written
would be contained in such records, but only to the
extent that the production of such records or
information would (A) interfere with enforcement
proceedings, (B) deprive a person of a right to a fair
trial or an impartial adjudication, (C) constitute an
unwarranted invasion of personal privacy, (D) disclose
the identity of a confidential source and, in the case
of a record compiled by a criminal law enforcement
authority in the course of a criminal investigation, or
by an agency conducting a lawful national security
intelligence investigation, confidential information
furnished only by the confidential source, (E) disclose
investigative techniques and procedures, or (F)
endanger the life or physical safety of law enforcement
personnel;
(8) disclose information contained in or related to
examination, operating, or condition reports prepared
by, on behalf of, or for the use of an agency
responsible for the regulation or supervision of
financial institutions;
(9) disclose information the premature disclosure
of which would--
(A) in the case of an agency which
regulates currencies, securities, commodities,
or financial institutions, be likely to (i)
lead to significant financial speculation in
currencies, securities, or commodities, or (ii)
significantly endanger the stability of any
financial institution; or
(B) in the case of any agency, be likely to
significantly frustrate implementation of a
proposed agency action,
except that subparagraph (B) shall not apply in any
instance where the agency has already disclosed to the
public the content or nature of its proposed action, or
where the agency is required by law to make such
disclosure on its own initiative prior to taking final
agency action on such proposal; or
(10) specifically concern the agency's issuance of
a subpena, or the agency's participation in a civil
action or proceeding, an action in a foreign court or
international tribunal, or an arbitration, or the
initiation, conduct, or disposition by the agency of a
particular case of formal agency adjudication pursuant
to the procedures in section 554 of this title or
otherwise involving a determination on the record after
opportunity for a hearing.
(d)(1) Action under subsection (c) shall be taken only when
a majority of the entire membership of the agency (as defined
in subsection (a)(1)) votes to take such action. A separate
vote of the agency members shall be taken with respect to each
agency meeting a portion or portions of which are proposed to
be closed to the public pursuant to subsection (c), or with
respect to any information which is proposed to be withheld
under subsection (c). A single vote may be taken with respect
to a series of meetings, a portion or portions of which are
proposed to be closed to the public, or with respect to any
information concerning such series of meetings, so long as each
meeting in such series involves the same particular matters and
is scheduled to be held no more than thirty days after the
initial meeting in such series. The vote of each agency member
participating in such vote shall be recorded and no proxies
shall be allowed.
(2) Whenever any person whose interests may be directly
affected by a portion of a meeting requests that the agency
close such portion to the public for any of the reasons
referred to in paragraph (5), (6), or (7) of subsection (c),
the agency, upon request of any one of its members, shall vote
by recorded vote whether to close such meeting.
(3) Within one day of any vote taken pursuant to paragraph
(1) or (2), the agency shall make publicly available a written
copy of such vote reflecting the vote of each member on the
question. If a portion of a meeting is to be closed to the
public, the agency shall, within one day of the vote taken
pursuant to paragraph (1) or (2) of this subsection, make
publicly available a full written explanation of its action
closing the portion together with a list of all persons
expected to attend the meeting and their affiliation.
(4) Any agency, a majority of whose meetings may properly
be closed to the public pursuant to paragraph (4), (8), (9)(A),
or (10) of subsection (c), or any combination thereof, may
provide by regulation for the closing of such meetings or
portions thereof in the event that a majority of the members of
the agency votes by recorded vote at the beginning of such
meeting, or portion thereof, to close the exempt portion or
portions of the meeting, and a copy of such vote, reflecting
the vote of each member on the question, is made available to
the public. The provisions of paragraphs (1), (2), and (3) of
this subsection and subsection (e) shall not apply to any
portion of a meeting to which such regulations apply: Provided,
That the agency shall, except to the extent that such
information is exempt from disclosure under the provisions of
subsection (c), provide the public with public announcement of
the time, place, and subject matter of the meeting and of each
portion thereof at the earliest practicable time.
(e)(1) In the case of each meeting, the agency shall make
public announcement, at least one week before the meeting, of
the time, place, and subject matter of the meeting, whether it
is to be open or closed to the public, and the name and phone
number of the official designated by the agency to respond to
requests for information about the meeting. Such announcement
shall be made unless a majority of the members of the agency
determines by a recorded vote that agency business requires
that such meeting be called at an earlier date, in which case
the agency shall make public announcement of the time, place,
and subject matter of such meeting, and whether open or closed
to the public, at the earliest practicable time.
(2) The time or place of a meeting may be changed following
the public announcement required by paragraph (1) only if the
agency publicly announces such change at the earliest
practicable time. The subject matter of a meeting, or the
determination of the agency to open or close a meeting, or
portion of a meeting, to the public, may be changed following
the public announcement required by this subsection only if (A)
a majority of the entire membership of the agency determines by
a recorded vote that agency business so requires and that no
earlier announcement of the change was possible, and (B) the
agency publicly announces such change and the vote of each
member upon such change at the earliest practicable time.
(3) Immediately following each public announcement required
by this subsection, notice of the time, place, and subject
matter of a meeting, whether the meeting is open or closed, any
change in one of the preceding, and the name and phone number
of the official designated by the agency to respond to requests
for information about the meeting, shall also be submitted for
publication in the Federal Register.
(f)(1) For every meeting closed pursuant to paragraphs (1)
through (10) of subsection (c), the General Counsel or chief
legal officer of the agency shall publicly certify that, in his
or her opinion, the meeting may be closed to the public and
shall state each relevant exemptive provision. A copy of such
certification, together with a statement from the presiding
officer of the meeting setting forth the time and place of the
meeting, and the persons present, shall be retained by the
agency. The agency shall maintain a complete transcript or
electronic recording adequate to record fully the proceedings
of each meeting, or portion of a meeting, closed to the public,
except that in the case of a meeting, or portion of a meeting,
closed to the public pursuant to paragraph (8), (9)(A), or (10)
of subsection (c), the agency shall maintain either such a
transcript or recording, or a set of minutes. Such minutes
shall fully and clearly describe all matters discussed and
shall provide a full and accurate summary of any actions taken,
and the reasons therefor, including a description of each of
the views expressed on any item and the record of any rollcall
vote (reflecting the vote of each member on the question). All
documents considered in connection with any action shall be
identified in such minutes.
(2) The agency shall make promptly available to the public,
in a place easily accessible to the public, the transcript,
electronic recording, or minutes (as required by paragraph (1))
of the discussion of any item on the agenda, or of any item of
the testimony of any witness received at the meeting, except
for such item or items of such discussion or testimony as the
agency determines to contain information which may be withheld
under subsection (c). Copies of such transcript, or minutes, or
a transcription of such recording disclosing the identity of
each speaker, shall be furnished to any person at the actual
cost of duplication or transcription. The agency shall maintain
a complete verbatim copy of the transcript, a complete copy of
the minutes, or a complete electronic recording of each
meeting, or portion of a meeting, closed to the public, for a
period of at least two years after such meeting, or until one
year after the conclusion of any agency proceeding with respect
to which the meeting or portion was held, whichever occurs
later.
(g) Each agency subject to the requirements of this section
shall, within 180 days after the date of enactment of this
section, following consultation with the Office of the Chairman
of the Administrative Conference of the United States and
published notice in the Federal Register of at least thirty
days and opportunity for written comment by any person,
promulgate regulations to implement the requirements of
subsections (b) through (f) of this section. Any person may
bring a proceeding in the United States District Court for the
District of Columbia to require an agency to promulgate such
regulations if such agency has not promulgated such regulations
within the time period specified herein. Subject to any
limitations of time provided by law, any person may bring a
proceeding in the United States Court of Appeals for the
District of Columbia to set aside agency regulations issued
pursuant to this subsection that are not in accord with the
requirements of subsections (b) through (f) of this section and
to require the promulgation of regulations that are in accord
with such subsections.
(h)(1) The district courts of the United States shall have
jurisdiction to enforce the requirements of subsections (b)
through (f) of this section by declaratory judgment, injunctive
relief, or other relief as may be appropriate. Such actions may
be brought by any person against an agency prior to, or within
sixty days after, the meeting out of which the violation of
this section arises, except that if public announcement of such
meeting is not initially provided by the agency in accordance
with the requirements of this section, such action may be
instituted pursuant to this section at any time prior to sixty
days after any public announcement of such meeting. Such
actions may be brought in the district court of the United
States for the district in which the agency meeting is held or
in which the agency in question has its headquarters, or in the
District Court for the District of Columbia. In such actions a
defendant shall serve his answer within thirty days after the
service of the complaint. The burden is on the defendant to
sustain his action. In deciding such cases the court may
examine in camera any portion of the transcript, electronic
recording, or minutes of a meeting closed to the public, and
may take such additional evidence as it deems necessary. The
court, having due regard for orderly administration and the
public interest, as well as the interests of the parties, may
grant such equitable relief as it deems appropriate, including
granting an injunction against future violations of this
section or ordering the agency to make available to the public
such portion of the transcript, recording, or minutes of a
meeting as is not authorized to be withheld under subsection
(c) of this section.
(2) Any Federal court otherwise authorized by law to review
agency action may, at the application of any person properly
participating in the proceeding pursuant to other applicable
law, inquire into violations by the agency of the requirements
of this section and afford such relief as it deems appropriate.
Nothing in this section authorizes any Federal court having
jurisdiction solely on the basis of paragraph (1) to set aside,
enjoin, or invalidate any agency action (other than an action
to close a meeting or to withhold information under this
section) taken or discussed at any agency meeting out of which
the violation of this section arose.
(i) The court may assess against any party reasonable
attorney fees and other litigation costs reasonably incurred by
any other party who substantially prevails in any action
brought in accordance with the provisions of subsection (g) or
(h) of this section, except that costs may be assessed against
the plaintiff only where the court finds that the suit was
initiated by the plaintiff primarily for frivolous or dilatory
purposes. In the case of assessment of costs against an agency,
the costs may be assessed by the court against the United
States.
(j) Each agency subject to the requirements of this section
shall annually report to the Congress regarding the following:
(1) The changes in the policies and procedures of
the agency under this section that have occurred during
the preceding 1-year period.
(2) A tabulation of the number of meetings held,
the exemptions applied to close meetings, and the days
of public notice provided to close meetings.
(3) A brief description of litigation or formal
complaints concerning the implementation of this
section by the agency.
(4) A brief explanation of any changes in law that
have affected the responsibilities of the agency under
this section.
(k) Nothing herein expands or limits the present rights of
any person under section 552 of this title, except that the
exemptions set forth in subsection (c) of this section shall
govern in the case of any request made pursuant to section 552
to copy or inspect the transcripts, recordings, or minutes
described in subsection (f) of this section. The requirements
of chapter 33 of title 44, United States Code, shall not apply
to the transcripts, recordings, and minutes described in
subsection (f) of this section.
(l) This section does not constitute authority to withhold
any information from Congress, and does not authorize the
closing of any agency meeting or portion thereof required by
any other provision of law to be open.
(m) Nothing in this section authorizes any agency to
withhold from any individual any record, including transcripts,
recordings, or minutes required by this section, which is
otherwise accessible to such individual under section 552a of
this title.
Sec. 553. Rule making
(a) This section applies, according to the provisions
thereof, except to the extent that there is involved--
(1) a military or foreign affairs function of the
United States; or
(2) a matter relating to agency management or
personnel or to public property, loans, grants,
benefits, or contracts.
(b) General notice of proposed rule making shall be
published in the Federal Register, unless persons subject
thereto are named and either personally served or otherwise
have actual notice thereof in accordance with law. The notice
shall include--
(1) a statement of the time, place, and nature of
public rule making proceedings;
(2) reference to the legal authority under which
the rule is proposed; and
(3) either the terms or substance of the proposed
rule or a description of the subjects and issues
involved.
Except when notice or hearing is required by statute, this
subsection does not apply--
(A) to interpretative rules, general statements of
policy, or rules of agency organization, procedure, or
practice; or
(B) when the agency for good cause finds (and
incorporates the finding and a brief statement of
reasons therefor in the rules issued) that notice and
public procedure thereon are impracticable,
unnecessary, or contrary to the public interest.
(c) After notice required by this section, the agency shall
give interested persons an opportunity to participate in the
rule making through submission of written data, views, or
arguments with or without opportunity for oral presentation.
After consideration of the relevant matter presented, the
agency shall incorporate in the rules adopted a concise general
statement of their basis and purpose. When rules are required
by statute to be made on the record after opportunity for an
agency hearing, sections 556 and 557 of this title apply
instead of this subsection.
(d) The required publication or service of a substantive
rule shall be made not less than 30 days before its effective
date, except--
(1) a substantive rule which grants or recognizes
an exemption or relieves a restriction;
(2) interpretative rules and statements of policy;
or
(3) as otherwise provided by the agency for good
cause found and published with the rule.
(e) Each agency shall give an interested person the right
to petition for the issuance, amendment, or repeal of a rule.
Sec. 554. Adjudications
(a) This section applies, according to the provisions
thereof, in every case of adjudication required by statute to
be determined on the record after opportunity for an agency
hearing, except to the extent that there is involved--
(1) a matter subject to a subsequent trial of the
law and the facts de novo in a court;
(2) the selection or tenure of an employee, except
a \1\ administrative law judge appointed under section
3105 of this title;
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\1\ So in original. Probably should be ``an''.
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(3) proceedings in which decisions rest solely on
inspections, tests, or elections;
(4) the conduct of military or foreign affairs
functions;
(5) cases in which an agency is acting as an agent
for a court; or
(6) the certification of worker representatives.
(b) Persons entitled to notice of an agency hearing shall
be timely informed of--
(1) the time, place, and nature of the hearings;
(2) the legal authority and jurisdiction under
which the hearing is to be held; and
(3) the matters of fact and law asserted.
When private persons are the moving parties, other parties to
the proceeding shall give prompt notice of issues controverted
in fact or law; and in other instances agencies may by rule
require responsive pleading. In fixing the time and place for
hearings, due regard shall be had for the convenience and
necessity of the parties or their representatives.
(c) The agency shall give all interested parties
opportunity for--
(1) the submission and consideration of facts,
arguments, offers of settlement, or proposals of
adjustment when time, the nature of the proceeding, and
the public interest permit; and
(2) to the extent that the parties are unable so to
determine a controversy by consent, hearing and
decision on notice and in accordance with sections 556
and 557 of this title.
(d) The employee who presides at the reception of evidence
pursuant to section 556 of this title shall make the
recommended decision or initial decision required by section
557 of this title, unless he becomes unavailable to the agency.
Except to the extent required for the disposition of ex parte
matters as authorized by law, such an employee may not--
(1) consult a person or party on a fact in issue,
unless on notice and opportunity for all parties to
participate; or
(2) be responsible to or subject to the supervision
or direction of an employee or agent engaged in the
performance of investigative or prosecuting functions
for an agency.
An employee or agent engaged in the performance of
investigative or prosecuting functions for an agency in a case
may not, in that or a factually related case, participate or
advise in the decision, recommended decision, or agency review
pursuant to section 557 of this title, except as witness or
counsel in public proceedings. This subsection does not apply--
(A) in determining applications for initial
licenses;
(B) to proceedings involving the validity or
application of rates, facilities, or practices of
public utilities or carriers; or
(C) to the agency or a member or members of the
body comprising the agency.
(e) The agency, with like effect as in the case of other
orders, and in its sound discretion, may issue a declaratory
order to terminate a controversy or remove uncertainty.
Sec. 555. Ancillary matters
(a) This section applies, according to the provisions
thereof, except as otherwise provided by this subchapter.
(b) A person compelled to appear in person before an agency
or representative thereof is entitled to be accompanied,
represented, and advised by counsel or, if permitted by the
agency, by other qualified representative. A party is entitled
to appear in person or by or with counsel or other duly
qualified representative in an agency proceeding. So far as the
orderly conduct of public business permits, an interested
person may appear before an agency or its responsible employees
for the presentation, adjustment, or determination of an issue,
request, or controversy in a proceeding, whether interlocutory,
summary, or otherwise, or in connection with an agency
function. With due regard for the convenience and necessity of
the parties or their representatives and within a reasonable
time, each agency shall proceed to conclude a matter presented
to it. This subsection does not grant or deny a person who is
not a lawyer the right to appear for or represent others before
an agency or in an agency proceeding.
(c) Process, requirement of a report, inspection, or other
investigative act or demand may not be issued, made, or
enforced except as authorized by law. A person compelled to
submit data or evidence is entitled to retain or, on payment of
lawfully prescribed costs, procure a copy or transcript
thereof, except that in a nonpublic investigatory proceeding
the witness may for good cause be limited to inspection of the
official transcript of his testimony.
(d) Agency subpenas authorized by law shall be issued to a
party on request and, when required by rules of procedure, on a
statement or showing of general relevance and reasonable scope
of the evidence sought. On contest, the court shall sustain the
subpena or similar process or demand to the extent that it is
found to be in accordance with law. In a proceeding for
enforcement, the court shall issue an order requiring the
appearance of the witness or the production of the evidence or
data within a reasonable time under penalty of punishment for
contempt in case of contumacious failure to comply.
(e) Prompt notice shall be given of the denial in whole or
in part of a written application, petition, or other request of
an interested person made in connection with any agency
proceedings. Except in affirming a prior denial or when the
denial is self-explanatory, the notice shall be accompanied by
a brief statement of the grounds for denial.
Sec. 556. Hearings; presiding employees; powers and duties; burden of
proof; evidence; record as basis of decision
(a) This section applies, according to the provisions
thereof, to hearings required by section 553 or 554 of this
title to be conducted in accordance with this section.
(b) There shall preside at the taking of evidence--
(1) the agency;
(2) one or more members of the body which comprises
the agency; or
(3) one or more administrative law judges appointed
under section 3105 of this title.
This subchapter does not supersede the conduct of specified
classes of proceedings, in whole or in part, by or before
boards or other employees specially provided for by or
designated under statute. The functions of presiding employees
and of employees participating in decisions in accordance with
section 557 of this title shall be conducted in an impartial
manner. A presiding or participating employee may at any time
disqualify himself. On the filing in good faith of a timely and
sufficient affidavit of personal bias or other disqualification
of a presiding or participating employee, the agency shall
determine the matter as a part of the record and decision in
the case.
(c) Subject to published rules of the agency and within its
powers, employees presiding at hearings may--
(1) administer oaths and affirmations;
(2) issue subpenas authorized by law;
(3) rule on offers of proof and receive relevant
evidence;
(4) take depositions or have depositions taken when
the ends of justice would be served;
(5) regulate the course of the hearing;
(6) hold conferences for the settlement or
simplification of the issues by consent of the parties
or by the use of alternative means of dispute
resolution as provided in subchapter IV of this
chapter;
(7) inform the parties as to the availability of
one or more alternative means of dispute resolution,
and encourage use of such methods;
(8) require the attendance at any conference held
pursuant to paragraph (6) of at least one
representative of each party who has authority to
negotiate concerning resolution of issues in
controversy;
(9) dispose of procedural requests or similar
matters;
(10) make or recommend decisions in accordance with
section 557 of this title; and
(11) take other action authorized by agency rule
consistent with this subchapter.
(d) Except as otherwise provided by statute, the proponent
of a rule or order has the burden of proof. Any oral or
documentary evidence may be received, but the agency as a
matter of policy shall provide for the exclusion of irrelevant,
immaterial, or unduly repetitious evidence. A sanction may not
be imposed or rule or order issued except on consideration of
the whole record or those parts thereof cited by a party and
supported by and in accordance with the reliable, probative,
and substantial evidence. The agency may, to the extent
consistent with the interests of justice and the policy of the
underlying statutes administered by the agency, consider a
violation of section 557(d) of this title sufficient grounds
for a decision adverse to a party who has knowingly committed
such violation or knowingly caused such violation to occur. A
party is entitled to present his case or defense by oral or
documentary evidence, to submit rebuttal evidence, and to
conduct such cross-examination as may be required for a full
and true disclosure of the facts. In rule making or determining
claims for money or benefits or applications for initial
licenses an agency may, when a party will not be prejudiced
thereby, adopt procedures for the submission of all or part of
the evidence in written form.
(e) The transcript of testimony and exhibits, together with
all papers and requests filed in the proceeding, constitutes
the exclusive record for decision in accordance with section
557 of this title and, on payment of lawfully prescribed costs,
shall be made available to the parties. When an agency decision
rests on official notice of a material fact not appearing in
the evidence in the record, a party is entitled, on timely
request, to an opportunity to show the contrary.
Sec. 557. Initial decisions; conclusiveness; review by agency;
submissions by parties; contents of decisions;
record
(a) This section applies, according to the provisions
thereof, when a hearing is required to be conducted in
accordance with section 556 of this title.
(b) When the agency did not preside at the reception of the
evidence, the presiding employee or, in cases not subject to
section 554(d) of this title, an employee qualified to preside
at hearings pursuant to section 556 of this title, shall
initially decide the case unless the agency requires, either in
specific cases or by general rule, the entire record to be
certified to it for decision. When the presiding employee makes
an initial decision, that decision then becomes the decision of
the agency without further proceedings unless there is an
appeal to, or review on motion of, the agency within time
provided by rule. On appeal from or review of the initial
decision, the agency has all the powers which it would have in
making the initial decision except as it may limit the issues
on notice or by rule. When the agency makes the decision
without having presided at the reception of the evidence, the
presiding employee or an employee qualified to preside at
hearings pursuant to section 556 of this title shall first
recommend a decision, except that in rule making or determining
applications for initial licenses--
(1) instead thereof the agency may issue a
tentative decision or one of its responsible employees
may recommend a decision; or
(2) this procedure may be omitted in a case in
which the agency finds on the record that due and
timely execution of its functions imperatively and
unavoidably so requires.
(c) Before a recommended, initial, or tentative decision,
or a decision on agency review of the decision of subordinate
employees, the parties are entitled to a reasonable opportunity
to submit for the consideration of the employees participating
in the decisions--
(1) proposed findings and conclusions; or \1\
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\1\ So in law. Paragraphs (2) and (3) probably should be paragraph
(2)(A) and (B).
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(2) exceptions to the decisions or recommended
decisions of subordinate employees or to tentative
agency decisions; and \1\
(3) supporting reasons for the exceptions or
proposed findings or conclusions.
The record shall show the ruling on each finding, conclusion,
or exception presented. All decisions, including initial,
recommended, and tentative decisions, are a part of the record
and shall include a statement of--
(A) findings and conclusions, and the reasons or
basis therefor, on all the material issues of fact,
law, or discretion presented on the record; and
(B) the appropriate rule, order, sanction, relief,
or denial thereof.
(d)(1) In any agency proceeding which is subject to
subsection (a) of this section, except to the extent required
for the disposition of ex parte matters as authorized by law--
(A) no interested person outside the agency shall
make or knowingly cause to be made to any member of the
body comprising the agency, administrative law judge,
or other employee who is or may reasonably be expected
to be involved in the decisional process of the
proceeding, an ex parte communication relevant to the
merits of the proceeding;
(B) no member of the body comprising the agency,
administrative law judge, or other employee who is or
may reasonably be expected to be involved in the
decisional process of the proceeding, shall make or
knowingly cause to be made to any interested person
outside the agency an ex parte communication relevant
to the merits of the proceeding;
(C) a member of the body comprising the agency,
administrative law judge, or other employee who is or
may reasonably be expected to be involved in the
decisional process of such proceeding who receives, or
who makes or knowingly causes to be made, a
communication prohibited by this subsection shall place
on the public record of the proceeding:
(i) all such written communications;
(ii) memoranda stating the substance of all
such oral communications; and
(iii) all written responses, and memoranda
stating the substance of all oral responses, to
the materials described in clauses (i) and (ii)
of this subparagraph;
(D) upon receipt of a communication knowingly made
or knowingly caused to be made by a party in violation
of this subsection, the agency, administrative law
judge, or other employee presiding at the hearing may,
to the extent consistent with the interests of justice
and the policy of the underlying statutes, require the
party to show cause why his claim or interest in the
proceeding should not be dismissed, denied,
disregarded, or otherwise adversely affected on account
of such violation; and
(E) the prohibitions of this subsection shall apply
beginning at such time as the agency may designate, but
in no case shall they begin to apply later than the
time at which a proceeding is noticed for hearing
unless the person responsible for the communication has
knowledge that it will be noticed, in which case the
prohibitions shall apply beginning at the time of his
acquisition of such knowledge.
(2) This subsection does not constitute authority to
withhold information from Congress.
Sec. 558. Imposition of sanctions; determination of applications for
licenses; suspension, revocation, and expiration of
licenses
(a) This section applies, according to the provisions
thereof, to the exercise of a power or authority.
(b) A sanction may not be imposed or a substantive rule or
order issued except within jurisdiction delegated to the agency
and as authorized by law.
(c) When application is made for a license required by law,
the agency, with due regard for the rights and privileges of
all the interested parties or adversely affected persons and
within a reasonable time, shall set and complete proceedings
required to be conducted in accordance with sections 556 and
557 of this title or other proceedings required by law and
shall make its decision. Except in cases of willfulness or
those in which public health, interest, or safety requires
otherwise, the withdrawal, suspension, revocation, or annulment
of a license is lawful only if, before the institution of
agency proceedings therefor, the licensee has been given--
(1) notice by the agency in writing of the facts or
conduct which may warrant the action; and
(2) opportunity to demonstrate or achieve
compliance with all lawful requirements.
When the licensee has made timely and sufficient application
for a renewal or a new license in accordance with agency rules,
a license with reference to an activity of a continuing nature
does not expire until the application has been finally
determined by the agency.
Sec. 559. Effect on other laws; effect of subsequent statute
This subchapter, chapter 7, and sections 1305, 3105, 3344,
4301(2)(E), 5372, and 7521 of this title, and the provisions of
section 5335(a)(B) of this title that relate to administrative
law judges, do not limit or repeal additional requirements
imposed by statute or otherwise recognized by law. Except as
otherwise required by law, requirements or privileges relating
to evidence or procedure apply equally to agencies and persons.
Each agency is granted the authority necessary to comply with
the requirements of this subchapter through the issuance of
rules or otherwise. Subsequent statute may not be held to
supersede or modify this subchapter, chapter 7, sections 1305,
3105, 3344, 4301(2)(E), 5372, or 7521 of this title, or the
provisions of section 5335(a)(B) of this title that relate to
administrative law judges, except to the extent that it does so
expressly.
SUBCHAPTER III--NEGOTIATED RULEMAKING PROCEDURE
Sec. 561. Purpose
The purpose of this subchapter is to establish a framework
for the conduct of negotiated rulemaking, consistent with
section 553 of this title, to encourage agencies to use the
process when it enhances the informal rulemaking process.
Nothing in this subchapter should be construed as an attempt to
limit innovation and experimentation with the negotiated
rulemaking process or with other innovative rulemaking
procedures otherwise authorized by law.
Sec. 562. Definitions
For the purposes of this subchapter, the term--
(1) ``agency'' has the same meaning as in section
551(1) of this title;
(2) ``consensus'' means unanimous concurrence among
the interests represented on a negotiated rulemaking
committee established under this subchapter, unless
such committee--
(A) agrees to define such term to mean a
general but not unanimous concurrence; or
(B) agrees upon another specified
definition;
(3) ``convener'' means a person who impartially
assists an agency in determining whether establishment
of a negotiated rulemaking committee is feasible and
appropriate in a particular rulemaking.
(4) ``facilitator'' means a person who impartially
aids in the discussions and negotiations among the
members of a negotiated rulemaking committee to develop
a proposed rule;
(5) ``interest'' means, with respect to an issue or
matter, multiple parties which have a similar point of
view or which are likely to be affected in a similar
manner;
(6) ``negotiated rulemaking'' means rulemaking
through the use of a negotiated rulemaking committee;
(7) ``negotiated rulemaking committee'' or
``committee'' means an advisory committee established
by an agency in accordance with this subchapter and the
Federal Advisory Committee Act to consider and discuss
issues for the purpose of reaching a consensus in the
development of a proposed rule;
(8) ``party'' has the same meaning as in section
551(3) of this title;
(9) ``person'' has the same meaning as in section
551(2) of this title;
(10) ``rule'' has the same meaning as in section
551(4) of this title; and
(11) ``rulemaking'' means ``rule making'' as that
term is defined in section 551(5) of this title.
Sec. 563. Determination of need for negotiated rulemaking committee
(a) Determination of Need by the Agency.--An agency may
establish a negotiated rulemaking committee to negotiate and
develop a proposed rule, if the head of the agency determines
that the use of the negotiated rulemaking procedure is in the
public interest. In making such a determination, the head of
the agency shall consider whether--
(1) there is a need for a rule;
(2) there are a limited number of identifiable
interests that will be significantly affected by the
rule;
(3) there is a reasonable likelihood that a
committee can be convened with a balanced
representation of persons who--
(A) can adequately represent the interests
identified under paragraph (2); and
(B) are willing to negotiate in good faith
to reach a consensus on the proposed rule;
(4) there is a reasonable likelihood that a
committee will reach a consensus on the proposed rule
within a fixed period of time;
(5) the negotiated rulemaking procedure will not
unreasonably delay the notice of proposed rulemaking
and the issuance of the final rule;
(6) the agency has adequate resources and is
willing to commit such resources, including technical
assistance, to the committee; and
(7) the agency, to the maximum extent possible
consistent with the legal obligations of the agency,
will use the consensus of the committee with respect to
the proposed rule as the basis for the rule proposed by
the agency for notice and comment.
(b) Use of Conveners.--
(1) Purposes of conveners.--An agency may use the
services of a convener to assist the agency in--
(A) identifying persons who will be
significantly affected by a proposed rule,
including residents of rural areas; and
(B) conducting discussions with such
persons to identify the issues of concern to
such persons, and to ascertain whether the
establishment of a negotiated rulemaking
committee is feasible and appropriate in the
particular rulemaking.
(2) Duties of conveners.--The convener shall report
findings and may make recommendations to the agency.
Upon request of the agency, the convener shall
ascertain the names of persons who are willing and
qualified to represent interests that will be
significantly affected by the proposed rule, including
residents of rural areas. The report and any
recommendations of the convener shall be made available
to the public upon request.
Sec. 564. Publication of notice; applications for membership on
committees
(a) Publication of Notice.--If, after considering the
report of a convener or conducting its own assessment, an
agency decides to establish a negotiated rulemaking committee,
the agency shall publish in the Federal Register and, as
appropriate, in trade or other specialized publications, a
notice which shall include--
(1) an announcement that the agency intends to
establish a negotiated rulemaking committee to
negotiate and develop a proposed rule;
(2) a description of the subject and scope of the
rule to be developed, and the issues to be considered;
(3) a list of the interests which are likely to be
significantly affected by the rule;
(4) a list of the persons proposed to represent
such interests and the person or persons proposed to
represent the agency;
(5) a proposed agenda and schedule for completing
the work of the committee, including a target date for
publication by the agency of a proposed rule for notice
and comment;
(6) a description of administrative support for the
committee to be provided by the agency, including
technical assistance;
(7) a solicitation for comments on the proposal to
establish the committee, and the proposed membership of
the negotiated rulemaking committee; and
(8) an explanation of how a person may apply or
nominate another person for membership on the
committee, as provided under subsection (b).
(b) Application for Membership on Committee.--Persons who
will be significantly affected by a proposed rule and who
believe that their interests will not be adequately represented
by any person specified in a notice under subsection (a)(4) may
apply for, or nominate another person for, membership on the
negotiated rulemaking committee to represent such interests
with respect to the proposed rule. Each application or
nomination shall include--
(1) the name of the applicant or nominee and a
description of the interests such person shall
represent;
(2) evidence that the applicant or nominee is
authorized to represent parties related to the
interests the person proposes to represent;
(3) a written commitment that the applicant or
nominee shall actively participate in good faith in the
development of the rule under consideration; and
(4) the reasons that the persons specified in the
notice under subsection (a)(4) do not adequately
represent the interests of the person submitting the
application or nomination.
(c) Period for Submission of Comments and Applications.--
The agency shall provide for a period of at least 30 calendar
days for the submission of comments and applications under this
section.
Sec. 565. Establishment of committee
(a) Establishment.--
(1) Determination to establish committee.--If after
considering comments and applications submitted under
section 564, the agency determines that a negotiated
rulemaking committee can adequately represent the
interests that will be significantly affected by a
proposed rule and that it is feasible and appropriate
in the particular rulemaking, the agency may establish
a negotiated rulemaking committee. In establishing and
administering such a committee, the agency shall comply
with the Federal Advisory Committee Act with respect to
such committee, except as otherwise provided in this
subchapter.
(2) Determination not to establish committee.--If
after considering such comments and applications, the
agency decides not to establish a negotiated rulemaking
committee, the agency shall promptly publish notice of
such decision and the reasons therefor in the Federal
Register and, as appropriate, in trade or other
specialized publications, a copy of which shall be sent
to any person who applied for, or nominated another
person for membership on the negotiating \1\ rulemaking
committee to represent such interests with respect to
the proposed rule.
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\1\ So in original. Probably should be ``negotiated''.
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(b) Membership.--The agency shall limit membership on a
negotiated rulemaking committee to 25 members, unless the
agency head determines that a greater number of members is
necessary for the functioning of the committee or to achieve
balanced membership. Each committee shall include at least one
person representing the agency.
(c) Administrative Support.--The agency shall provide
appropriate administrative support to the negotiated rulemaking
committee, including technical assistance.
Sec. 566. Conduct of committee activity
(a) Duties of Committee.--Each negotiated rulemaking
committee established under this subchapter shall consider the
matter proposed by the agency for consideration and shall
attempt to reach a consensus concerning a proposed rule with
respect to such matter and any other matter the committee
determines is relevant to the proposed rule.
(b) Representatives of Agency on Committee.--The person or
persons representing the agency on a negotiated rulemaking
committee shall participate in the deliberations and activities
of the committee with the same rights and responsibilities as
other members of the committee, and shall be authorized to
fully represent the agency in the discussions and negotiations
of the committee.
(c) Selecting Facilitator.--Notwithstanding section 10(e)
of the Federal Advisory Committee Act, an agency may nominate
either a person from the Federal Government or a person from
outside the Federal Government to serve as a facilitator for
the negotiations of the committee, subject to the approval of
the committee by consensus. If the committee does not approve
the nominee of the agency for facilitator, the agency shall
submit a substitute nomination. If a committee does not approve
any nominee of the agency for facilitator, the committee shall
select by consensus a person to serve as facilitator. A person
designated to represent the agency in substantive issues may
not serve as facilitator or otherwise chair the committee.
(d) Duties of Facilitator.--A facilitator approved or
selected by a negotiated rulemaking committee shall--
(1) chair the meetings of the committee in an
impartial manner;
(2) impartially assist the members of the committee
in conducting discussions and negotiations; and
(3) manage the keeping of minutes and records as
required under section 10 (b) and (c) of the Federal
Advisory Committee Act, except that any personal notes
and materials of the facilitator or of the members of a
committee shall not be subject to section 552 of this
title.
(e) Committee Procedures.--A negotiated rulemaking
committee established under this subchapter may adopt
procedures for the operation of the committee. No provision of
section 553 of this title shall apply to the procedures of a
negotiated rulemaking committee.
(f) Report of Committee.--If a committee reaches a
consensus on a proposed rule, at the conclusion of negotiations
the committee shall transmit to the agency that established the
committee a report containing the proposed rule. If the
committee does not reach a consensus on a proposed rule, the
committee may transmit to the agency a report specifying any
areas in which the committee reached a consensus. The committee
may include in a report any other information, recommendations,
or materials that the committee considers appropriate. Any
committee member may include as an addendum to the report
additional information, recommendations, or materials.
(g) Records of Committee.--In addition to the report
required by subsection (f), a committee shall submit to the
agency the records required under section 10 (b) and (c) of the
Federal Advisory Committee Act.
Sec. 567. Termination of committee
A negotiated rulemaking committee shall terminate upon
promulgation of the final rule under consideration, unless the
committee's charter contains an earlier termination date or the
agency, after consulting the committee, or the committee itself
specifies an earlier termination date.
Sec. 568. Services, facilities, and payment of committee member
expenses
(a) Services of Conveners and Facilitators.--
(1) In general.--An agency may employ or enter into
contracts for the services of an individual or
organization to serve as a convener or facilitator for
a negotiated rulemaking committee under this
subchapter, or may use the services of a Government
employee to act as a convener or a facilitator for such
a committee.
(2) Determination of conflicting interests.--An
agency shall determine whether a person under
consideration to serve as convener or facilitator of a
committee under paragraph (1) has any financial or
other interest that would preclude such person from
serving in an impartial and independent manner.
(b) Services and Facilities of Other Entities.--For
purposes of this subchapter, an agency may use the services and
facilities of other Federal agencies and public and private
agencies and instrumentalities with the consent of such
agencies and instrumentalities, and with or without
reimbursement to such agencies and instrumentalities, and may
accept voluntary and uncompensated services without regard to
the provisions of section 1342 of title 31. The Federal
Mediation and Conciliation Service may provide services and
facilities, with or without reimbursement, to assist agencies
under this subchapter, including furnishing conveners,
facilitators, and training in negotiated rulemaking.
(c) Expenses of Committee Members.--Members of a negotiated
rulemaking committee shall be responsible for their own
expenses of participation in such committee, except that an
agency may, in accordance with section 7(d) of the Federal
Advisory Committee Act, pay for a member's reasonable travel
and per diem expenses, expenses to obtain technical assistance,
and a reasonable rate of compensation, if--
(1) such member certifies a lack of adequate
financial resources to participate in the committee;
and
(2) the agency determines that such member's
participation in the committee is necessary to assure
an adequate representation of the member's interest.
(d) Status of Member as Federal Employee.--A member's
receipt of funds under this section or section 569 shall not
conclusively determine for purposes of sections 202 through 209
of title 18 whether that member is an employee of the United
States Government.
Sec. 569. Encouraging negotiated rulemaking
(a) The President shall designate an agency or designate or
establish an interagency committee to facilitate and encourage
agency use of negotiated rulemaking. An agency that is
considering, planning, or conducting a negotiated rulemaking
may consult with such agency or committee for information and
assistance.
(b) To carry out the purposes of this subchapter, an agency
planning or conducting a negotiated rulemaking may accept,
hold, administer, and utilize gifts, devises, and bequests of
property, both real and personal if that agency's acceptance
and use of such gifts, devises, or bequests do not create a
conflict of interest. Gifts and bequests of money and proceeds
from sales of other property received as gifts, devises, or
bequests shall be deposited in the Treasury and shall be
disbursed upon the order of the head of such agency. Property
accepted pursuant to this section, and the proceeds thereof,
shall be used as nearly as possible in accordance with the
terms of the gifts, devises, or bequests.
Sec. 570. Judicial review
Any agency action relating to establishing, assisting, or
terminating a negotiated rulemaking committee under this
subchapter shall not be subject to judicial review. Nothing in
this section shall bar judicial review of a rule if such
judicial review is otherwise provided by law. A rule which is
the product of negotiated rulemaking and is subject to judicial
review shall not be accorded any greater deference by a court
than a rule which is the product of other rulemaking
procedures.
Sec. 570a. Authorization of appropriations
There are authorized to be appropriated such sums as may be
necessary to carry out the purposes of this subchapter.
SUBCHAPTER IV--ALTERNATIVE MEANS OF DISPUTE RESOLUTION IN THE
ADMINISTRATIVE PROCESS
Sec. 571. Definitions
For the purposes of this subchapter, the term--
(1) ``agency'' has the same meaning as in section
551(1) of this title;
(2) ``administrative program'' includes a Federal
function which involves protection of the public
interest and the determination of rights, privileges,
and obligations of private persons through rule making,
adjudication, licensing, or investigation, as those
terms are used in subchapter II of this chapter;
(3) ``alternative means of dispute resolution''
means any procedure that is used to resolve issues in
controversy, including, but not limited to,
conciliation, facilitation, mediation, factfinding,
minitrials, arbitration, and use of ombuds, or any
combination thereof;
(4) ``award'' means any decision by an arbitrator
resolving the issues in controversy;
(5) ``dispute resolution communication'' means any
oral or written communication prepared for the purposes
of a dispute resolution proceeding, including any
memoranda, notes or work product of the neutral,
parties or nonparty participant; except that a written
agreement to enter into a dispute resolution
proceeding, or final written agreement or arbitral
award reached as a result of a dispute resolution
proceeding, is not a dispute resolution communication;
(6) ``dispute resolution proceeding'' means any
process in which an alternative means of dispute
resolution is used to resolve an issue in controversy
in which a neutral is appointed and specified parties
participate;
(7) ``in confidence'' means, with respect to
information, that the information is provided--
(A) with the expressed intent of the source
that it not be disclosed; or
(B) under circumstances that would create
the reasonable expectation on behalf of the
source that the information will not be
disclosed;
(8) ``issue in controversy'' means an issue which
is material to a decision concerning an administrative
program of an agency, and with which there is
disagreement--
(A) between an agency and persons who would
be substantially affected by the decision; or
(B) between persons who would be
substantially affected by the decision;
(9) ``neutral'' means an individual who, with
respect to an issue in controversy, functions
specifically to aid the parties in resolving the
controversy;
(10) ``party'' means--
(A) for a proceeding with named parties,
the same as in section 551(3) of this title;
and
(B) for a proceeding without named parties,
a person who will be significantly affected by
the decision in the proceeding and who
participates in the proceeding;
(11) ``person'' has the same meaning as in section
551(2) of this title; and
(12) ``roster'' means a list of persons qualified
to provide services as neutrals.
Sec. 572. General authority
(a) An agency may use a dispute resolution proceeding for
the resolution of an issue in controversy that relates to an
administrative program, if the parties agree to such
proceeding.
(b) An agency shall consider not using a dispute resolution
proceeding if--
(1) a definitive or authoritative resolution of the
matter is required for precedential value, and such a
proceeding is not likely to be accepted generally as an
authoritative precedent;
(2) the matter involves or may bear upon
significant questions of Government policy that require
additional procedures before a final resolution may be
made, and such a proceeding would not likely serve to
develop a recommended policy for the agency;
(3) maintaining established policies is of special
importance, so that variations among individual
decisions are not increased and such a proceeding would
not likely reach consistent results among individual
decisions;
(4) the matter significantly affects persons or
organizations who are not parties to the proceeding;
(5) a full public record of the proceeding is
important, and a dispute resolution proceeding cannot
provide such a record; and
(6) the agency must maintain continuing
jurisdiction over the matter with authority to alter
the disposition of the matter in the light of changed
circumstances, and a dispute resolution proceeding
would interfere with the agency's fulfilling that
requirement.
(c) Alternative means of dispute resolution authorized
under this subchapter are voluntary procedures which supplement
rather than limit other available agency dispute resolution
techniques.
Sec. 573. Neutrals
(a) A neutral may be a permanent or temporary officer or
employee of the Federal Government or any other individual who
is acceptable to the parties to a dispute resolution
proceeding. A neutral shall have no official, financial, or
personal conflict of interest with respect to the issues in
controversy, unless such interest is fully disclosed in writing
to all parties and all parties agree that the neutral may
serve.
(b) A neutral who serves as a conciliator, facilitator, or
mediator serves at the will of the parties.
(c) The President shall designate an agency or designate or
establish an interagency committee to facilitate and encourage
agency use of dispute resolution under this subchapter. Such
agency or interagency committee, in consultation with other
appropriate Federal agencies and professional organizations
experienced in matters concerning dispute resolution, shall--
(1) encourage and facilitate agency use of
alternative means of dispute resolution; and
(2) develop procedures that permit agencies to
obtain the services of neutrals on an expedited basis.
(d) An agency may use the services or one or more employees
of other agencies to serve as neutrals in dispute resolution
proceedings. The agencies may enter into an interagency
agreement that provides for the reimbursement by the user
agency or the parties of the full or partial cost of the
services of such an employee.
(e) Any agency may enter into a contract with any person
for services as a neutral, or for training in connection with
alternative means of dispute resolution. The parties in a
dispute resolution proceeding shall agree on compensation for
the neutral that is fair and reasonable to the Government.
Sec. 574. Confidentiality
(a) Except as provided in subsections (d) and (e), a
neutral in a dispute resolution proceeding shall not
voluntarily disclose or through discovery or compulsory process
be required to disclose any dispute resolution communication or
any communication provided in confidence to the neutral,
unless--
(1) all parties to the dispute resolution
proceeding and the neutral consent in writing, and, if
the dispute resolution communication was provided by a
nonparty participant, that participant also consents in
writing;
(2) the dispute resolution communication has
already been made public;
(3) the dispute resolution communication is
required by statute to be made public, but a neutral
should make such communication public only if no other
person is reasonably available to disclose the
communication; or
(4) a court determines that such testimony or
disclosure is necessary to--
(A) prevent a manifest injustice;
(B) help establish a violation of law; or
(C) prevent harm to the public health or
safety,
of sufficient magnitude in the particular case
to outweigh the integrity of dispute resolution
proceedings in general by reducing the
confidence of parties in future cases that
their communications will remain confidential.
(b) A party to a dispute resolution proceeding shall not
voluntarily disclose or through discovery or compulsory process
be required to disclose any dispute resolution communications
unless--
(1) the communication was prepared by the party
seeking disclosure;
(2) all parties to the dispute resolution
proceeding consent in writing;
(3) the dispute resolution communication has
already been made public;
(4) the dispute resolution communication is
required by statute to be made public;
(5) a court determines that such testimony or
disclosure is necessary to--
(A) prevent a manifest injustice;
(B) help establish a violation of law; or
(C) prevent harm to the public health and
safety,
of sufficient magnitude in the particular case
to outweigh the integrity of dispute resolution
proceedings in general by reducing the
confidence of parties in future cases that
their communications will remain confidential;
(6) the dispute resolution communication is
relevant to determining the existence or meaning of an
agreement or award that resulted from the dispute
resolution communication or to the enforcement of such
an agreement or award; or
(7) except for dispute resolution communications
generated by the neutral, the dispute resolution
communication was provided to or was available to all
parties to the dispute resolution proceeding.
(c) Any dispute resolution communication that is disclosed
in violation of subsection (a) or (b),\1\ shall not be
admissible in any proceeding relating to the issues in
controversy with respect to which the communication was made.
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\1\ So in law. Comma probably is unnecessary.
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(d)(1) The parties may agree to alternative confidential
procedures for disclosures by a neutral. Upon such agreement
the parties shall inform the neutral before the commencement of
the dispute resolution proceeding of any modifications to the
provisions of subsection (a) that will govern the
confidentiality of the dispute resolution proceeding. If the
parties do not so inform the neutral, subsection (a) shall
apply.
(2) To qualify for the exemption established under
subsection (j), an alternative confidential procedure under
this subsection may not provide for less disclosure than the
confidential procedures otherwise provided under this section.
(e) If a demand for disclosure, by way of discovery request
or other legal process, is made upon a neutral regarding a
dispute resolution communication, the neutral shall make
reasonable efforts to notify the parties and any affected
nonparty participants of the demand. Any party or affected
nonparty participant who receives such notice and within 15
calendar days does not offer to defend a refusal of the neutral
to disclose the requested information shall have waived any
objection to such disclosure.
(f) Nothing in this section shall prevent the discovery or
admissibility of any evidence that is otherwise discoverable,
merely because the evidence was presented in the course of a
dispute resolution proceeding.
(g) Subsections (a) and (b) shall have no effect on the
information and data that are necessary to document an
agreement reached or order issued pursuant to a dispute
resolution proceeding.
(h) Subsections (a) and (b) shall not prevent the gathering
of information for research or educational purposes, in
cooperation with other agencies, governmental entities, or
dispute resolution programs, so long as the parties and the
specific issues in controversy are not identifiable.
(i) Subsections (a) and (b) shall not prevent use of a
dispute resolution communication to resolve a dispute between
the neutral in a dispute resolution proceeding and a party to
or participant in such proceeding so long as such dispute
resolution communication is disclosed only to the extent
necessary to resolve such dispute.
(j) A dispute resolution communication which is between a
neutral and a party and which may not be disclosed under this
section shall also be exempt from disclosure under section
552(b)(3).
Sec. 575. Authorization of arbitration
(a)(1) Arbitration may be used as an alternative means of
dispute resolution whenever all parties consent. Consent may be
obtained either before or after an issue in controversy has
arisen. A party may agree to--
(A) submit only certain issues in controversy to
arbitration; or
(B) arbitration on the condition that the award
must be within a range of possible outcomes.
(2) The arbitration agreement that sets forth the subject
matter submitting to the arbitration shall be in writing. Each
such arbitration agreement shall specify a maximum award that
may be issued by the arbitrator and may specify other
conditions limiting the range of possible outcomes.
(3) An agency may not require any person to consent to
arbitration as a condition of entering into a contract or
obtaining a benefit.
(b) An officer or employee of an agency shall not offer to
use arbitration for the resolution of issues in controversy
unless such officer or employee--
(1) would otherwise have authority to enter into a
settlement concerning the matter; or
(2) is otherwise specifically authorized by the
agency to consent to the use of arbitration.
(c) Prior to using binding arbitration under this
subchapter, the head of an agency, in consultation with the
Attorney General and after taking into account the factors in
section 572(b), shall issue guidance on the appropriate use of
binding arbitration and when an officer or employee of the
agency has authority to settle an issue in controversy through
binding arbitration.
Sec. 576. Enforcement of arbitration agreements
An agreement to arbitrate a matter to which this subchapter
applies is enforcement pursuant to section 4 of title 9, and no
action brought to enforce such an agreement shall be dismissed
nor shall relief therein be denied on the grounds that it is
against the United States or that the United States is an
indispensable party.
Sec. 577. Arbitrators
(a) The parties to an arbitration proceeding shall be
entitled to participate in the selection of the arbitrator.
(b) The arbitrator shall be a neutral who meets the
criteria of section 573 of this title.
Sec. 578. Authority of the arbitrator
An arbitrator to whom a dispute is referred under this
subchapter may--
(1) regulate the course of and conduct arbitral
hearings;
(2) administer oaths and affirmations;
(3) compel the attendance of witnesses and
production of evidence at the hearing under the
provisions of section 7 of title 9 only to the extent
the agency involved is otherwise authorized by law to
do so; and
(4) make awards.
Sec. 579. Arbitration proceedings
(a) The arbitrator shall set a time and place for the
hearing on the dispute and shall notify the parties not less
than 5 days before the hearing.
(b) Any party wishing a record of the hearing shall--
(1) be responsible for the preparation of such
record;
(2) notify the other parties and the arbitrator of
the preparation of such record;
(3) furnish copies to all identified parties and
the arbitrator; and
(4) pay all costs for such record, unless the
parties agree otherwise or the arbitrator determines
that the costs should be apportioned.
(c)(1) The parties to the arbitration are entitled to be
heard, to present evidence material to the controversy, and to
cross-examine witnesses appearing at the hearing.
(2) The arbitrator may, with the consent of the parties,
conduct all or part of the hearing by telephone, television,
computer, or other electronic means, if each party has an
opportunity to participate.
(3) The hearing shall be conducted expeditiously and in an
informal manner.
(4) The arbitrator may receive any oral or documentary
evidence, except that irrelevant, immaterial, unduly
repetitious, or privileged evidence may be excluded by the
arbitrator.
(5) The arbitrator shall interpret and apply relevant
statutory and regulatory requirements, legal precedents, and
policy directives.
(d) No interested person shall make or knowingly cause to
be made to the arbitrator an unauthorized ex parte
communication relevant to the merits of the proceeding, unless
the parties agree otherwise. If a communication is made in
violation of this subsection, the arbitrator shall ensure that
a memorandum of the communication is prepared and made a part
of the record, and that an opportunity for rebuttal is allowed.
Upon receipt of a communication made in violation of this
subsection, the arbitrator may, to the extent consistent with
the interests of justice and the policies underlying this
subchapter, require the offending party to show cause why the
claim of such party should not be resolved against such party
as a result of the improper conduct.
(e) The arbitrator shall make the award within 30 days
after the close of the hearing, or the date of the filing of
any briefs authorized by the arbitrator, whichever date is
later, unless--
(1) the parties agree to some other time limit; or
(2) the agency provides by rule for some other time
limit.
Sec. 580. Arbitration awards
(a)(1) Unless the agency provides otherwise by rule, the
award in an arbitration proceeding under this subchapter shall
include a brief, informal discussion of the factual and legal
basis for the award, but formal findings of fact or conclusions
of law shall not be required.
(2) The prevailing parties shall file the award with all
relevant agencies, along with proof of service on all parties.
(b) The award in an arbitration proceeding shall become
final 30 days after it is served on all parties. Any agency
that is a party to the proceeding may extend this 30-day period
for an additional 30-day period by serving a notice of such
extension on all other parties before the end of the first 30-
day period.
(c) A final award is binding on the parties to the
arbitration proceeding, and may be enforced pursuant to
sections 9 through 13 of title 9. No action brought to enforce
such an award shall be dismissed nor shall relief therein be
denied on the grounds that it is against the United States or
that the United States is an indispensable party.
(d) An award entered under this subchapter in an
arbitration proceeding may not serve as an estoppel in any
other proceeding for any issue that was resolved in the
proceeding. Such an award also may not be used as precedent or
otherwise be considered in any factually unrelated proceeding,
whether conducted under this subchapter, by an agency, or in a
court, or in any other arbitration proceeding.
Sec. 581. Judicial review
(a) Notwithstanding any other provision of law, any person
adversely affected or aggrieved by an award made in an
arbitration proceeding conducted under this subchapter may
bring an action for review of such award only pursuant to the
provisions of sections 9 through 13 of title 9.
(b) \1\ (1) A decision by an agency to use or not to use a
dispute resolution proceeding under this subchapter shall be
committed to the discretion of the agency and shall not be
subject to judicial review, except that arbitration shall be
subject to judicial review under section 10(b) of title 9.
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\1\ Section 8(b) of the Administrative Dispute Resolution Act of
1996 (P.L. 104-320; 110 Stat. 3872) amended section ``581(d)'' of title
5 by striking ``(1)'' after ``(b)'' and by striking paragraph (2). The
amendment probably should have been made to section 581(b).
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(2) A decision by the head of an agency under section 580
to terminate an arbitration proceeding or vacate an arbitral
award shall be committed to the discretion of the agency and
shall not be subject to judicial review.
[Sec. 582. Repealed. Pub. L. 104-320, Sec. 4(b)(1), Oct. 19, 1996, 110
Stat. 3871.]
Sec. 583. Support services
For the purposes of this subchapter, an agency may use
(with or without reimbursement) the services and facilities of
other Federal agencies, State, local, and tribal governments,
public and private organizations and agencies, and individuals,
with the consent of such agencies, organizations, and
individuals. An agency may accept voluntary and uncompensated
services for purposes of this subchapter without regard to the
provisions of section 1342 of title 31.
Sec. 584. Authorization of appropriations
There are authorized to be appropriated such sums as may be
necessary to carry out the purposes of this subchapter.
SUBCHAPTER V--ADMINISTRATIVE CONFERENCE OF THE UNITED STATES
Sec. 591. Purpose
It is the purpose of this subchapter to provide suitable
arrangements through which Federal agencies, assisted by
outside experts, may cooperatively study mutual problems,
exchange information, and develop recommendations for action by
proper authorities to the end that private rights may be fully
protected and regulatory activities and other Federal
responsibilities may be carried out expeditiously in the public
interest.
Sec. 592. Definitions
For the purpose of this subchapter--
(1) ``administrative program'' includes a Federal
function which involves protection of the public
interest and the determination of rights, privileges,
and obligations of private persons through rule making,
adjudication, licensing, or investigation, as those
terms are used in subchapter II of this chapter, except
that it does not include a military or foreign affairs
function of the United States;
(2) ``administrative agency'' means an authority as
defined by section 551(1) of this title; and
(3) ``administrative procedure'' means procedure
used in carrying out an administrative program and is
to be broadly construed to include any aspect of agency
organization, procedure, or management which may affect
the equitable consideration of public and private
interests, the fairness of agency decisions, the speed
of agency action, and the relationship of operating
methods to later judicial review, but does not include
the scope of agency responsibility as established by
law or matters of substantive policy committed by law
to agency discretion.
Sec. 593. Administrative Conference of the United States
(a) The Administrative Conference of the United States
consists of not more than 101 nor less than 75 members
appointed as set forth in subsection (b) of this section.
(b) The Conference is composed of--
(1) a full-time Chairman appointed for a 5-year
term by the President, by and with the advice and
consent of the Senate. The Chairman is entitled to pay
at the highest rate established by statute for the
chairman of an independent regulatory board or
commission, and may continue to serve until his
successor is appointed and has qualified;
(2) the chairman of each independent regulatory
board or commission or an individual designated by the
board or commission;
(3) the head of each Executive department or other
administrative agency which is designated by the
President, or an individual designated by the head of
the department or agency;
(4) when authorized by the Council referred to in
section 595(b) of this title, one or more appointees
from a board, commission, department, or agency
referred to in this subsection, designated by the head
thereof with, in the case of a board or commission, the
approval of the board or commission;
(5) individuals appointed by the President to
membership on the Council who are not otherwise members
of the Conference; and
(6) not more than 40 other members appointed by the
Chairman, with the approval of the Council, for terms
of 2 years, except that the number of members appointed
by the Chairman may at no time be less than one-third
nor more than two-fifths of the total number of
members. The Chairman shall select the members in a
manner which will provide broad representation of the
views of private citizens and utilize diverse
experience. The members shall be members of the
practicing bar, scholars in the field of administrative
law or government, or others specially informed by
knowledge and experience with respect to Federal
administrative procedure.
(c) Members of the Conference, except the Chairman, are not
entitled to pay for service. Members appointed from outside the
Federal Government are entitled to travel expenses, including
per diem instead of subsistence, as authorized by section 5703
of this title for individuals serving without pay.
Sec. 594. Powers and duties of the Conference
To carry out the purpose of this subchapter, the
Administrative Conference of the United States may--
(1) study the efficiency, adequacy, and fairness of
the administrative procedure used by administrative
agencies in carrying out administrative programs, and
make recommendations to administrative agencies,
collectively or individually, and to the President,
Congress, or the Judicial Conference of the United
States, in connection therewith, as it considers
appropriate;
(2) arrange for interchange among administrative
agencies of information potentially useful in improving
administrative procedure;
(3) collect information and statistics from
administrative agencies and publish such reports as it
considers useful for evaluating and improving
administrative procedure;
(4) enter into arrangements with any administrative
agency or major organizational unit within an
administrative agency pursuant to which the Conference
performs any of the functions described in this
section; and
(5) \1\ provide assistance in response to requests
relating to the improvement of administrative procedure
in foreign countries, subject to the concurrence of the
Secretary of State, the Administrator of the Agency for
International Development, or the Director of the
United States Information Agency, as appropriate,
except that--
---------------------------------------------------------------------------
\1\ Public Law 102-403 added paragraph (5) ``at the end'' of
section 594. It probably should have been added after paragraph (4), as
shown here.
---------------------------------------------------------------------------
(A) such assistance shall be limited to the
analysis of issues relating to administrative
procedure, the provision of training of foreign
officials in administrative procedure, and the
design or improvement of administrative
procedure, where the expertise of members of
the Conference is indicated; and
(B) such assistance may only be undertaken
on a fully reimbursable basis, including all
direct and indirect administrative costs.
Payment for services provided by the Conference pursuant to
paragraph (4) shall be credited to the operating account for
the Conference and shall remain available until expended.
Sec. 595. Organization of the Conference
(a) The membership of the Administrative Conference of the
United States meeting in plenary session constitutes the
Assembly of the Conference. The Assembly has ultimate authority
over all activities of the Conference. Specifically, it has the
power to--
(1) adopt such recommendations as it considers
appropriate for improving administrative procedure. A
member who disagrees with a recommendation adopted by
the Assembly is entitled to enter a dissenting opinion
and an alternate proposal in the record of the
Conference proceedings, and the opinion and proposal so
entered shall accompany the Conference recommendation
in a publication or distribution thereof; and
(2) adopt bylaws and regulations not inconsistent
with this subchapter for carrying out the functions of
the Conference, including the creation of such
committees as it considers necessary for the conduct of
studies and the development of recommendations for
consideration by the Assembly.
(b) The Conference includes a Council composed of the
Chairman of the Conference, who is Chairman of the Council, and
10 other members appointed by the President, of whom not more
than one-half shall be employees of Federal regulatory agencies
or Executive departments. The President may designate a member
of the Council as Vice Chairman. During the absence or
incapacity of the Chairman, or when that office is vacant, the
Vice Chairman shall serve as Chairman. The term of each member,
except the Chairman, is 3 years. When the term of a member
ends, he may continue to serve until a successor is appointed.
However, the service of any member ends when a change in his
employment status would make him ineligible for Council
membership under the conditions of his original appointment.
The Council has the power to--
(1) determine the time and place of plenary
sessions of the Conference and the agenda for the
sessions. The Council shall call at least one plenary
session each year;
(2) propose bylaws and regulations, including rules
of procedure and committee organization, for adoption
by the Assembly;
(3) make recommendations to the Conference or its
committees on a subject germane to the purpose of the
Conference;
(4) receive and consider reports and
recommendations of committees of the Conference and
send them to members of the Conference with the views
and recommendations of the Council;
(5) designate a member of the Council to preside at
meetings of the Council in the absence or incapacity of
the Chairman and Vice Chairman;
(6) designate such additional officers of the
Conference as it considers desirable;
(7) approve or revise the budgetary proposals of
the Chairman; and
(8) exercise such other powers as may be delegated
to it by the Assembly.
(c) The Chairman is the chief executive of the Conference.
In that capacity he has the power to--
(1) make inquiries into matters he considers
important for Conference consideration, including
matters proposed by individuals inside or outside the
Federal Government;
(2) be the official spokesman for the Conference in
relations with the several branches and agencies of the
Federal Government and with interested organizations
and individuals outside the Government, including
responsibility for encouraging Federal agencies to
carry out the recommendations of the Conference;
(3) request agency heads to provide information
needed by the Conference, which information shall be
supplied to the extent permitted by law;
(4) recommend to the Council appropriate subjects
for action by the Conference;
(5) appoint, with the approval of the Council,
members of committees authorized by the bylaws and
regulations of the Conference;
(6) prepare, for approval of the Council, estimates
of the budgetary requirements of the Conference;
(7) appoint and fix the pay of employees, define
their duties and responsibilities, and direct and
supervise their activities;
(8) rent office space in the District of Columbia;
(9) provide necessary services for the Assembly,
the Council, and the committees of the Conference;
(10) organize and direct studies ordered by the
Assembly or the Council, to contract for the
performance of such studies with any public or private
persons, firm, association, corporation, or institution
under title III of the Federal Property and
Administrative Services Act of 1949, as amended (41
U.S.C. 251-260), and to use from time to time, as
appropriate, experts and consultants who may be
employed in accordance with section 3109 of this title
at rates not in excess of the maximum rate of pay for
grade GS-15 as provided in section 5332 of this title;
(11) utilize, with their consent, the services and
facilities of Federal agencies and of State and private
agencies and instrumentalities with or without
reimbursement;
(12) accept, hold, administer, and utilize gifts,
devises, and bequests of property, both real and
personal, for the purpose of aiding and facilitating
the work of the Conference. Gifts and bequests of money
and proceeds from sales of other property received as
gifts, devises, or bequests shall be deposited in the
Treasury and shall be disbursed upon the order of the
Chairman. Property accepted pursuant to this section,
and the proceeds thereof, shall be used as nearly as
possible in accordance with the terms of the gifts,
devises, or bequests. For purposes of Federal income,
estate, or gift taxes, property accepted under this
section shall be considered as a gift, devise, or
bequest to the United States;
(13) accept voluntary and uncompensated services,
notwithstanding the provisions of section 1342 of title
31;
(14) on request of the head of an agency, furnish
assistance and advice on matters of administrative
procedure;
(15) exercise such additional authority as the
Council or Assembly delegates to him; and
(16) request any administrative agency to notify
the Chairman of its intent to enter into any contract
with any person outside the agency to study the
efficiency, adequacy, of fairness of an agency
proceeding (as defined in section 551(12) of this
title).
The Chairman shall preside at meetings of the Council and at
each plenary session of the Conference, to which he shall make
a full report concerning the affairs of the Conference since
the last preceding plenary session. The Chairman, on behalf of
the Conference, shall transmit to the President and Congress an
annual report and such interim reports as he considers
desirable.
Sec. 596. Authorization of appropriations
There are authorized to be appropriated to carry out the
purposes of this subchapter not more than $2,000,000 for fiscal
year 1990, $2,100,000 for fiscal year 1991, $2,200,000 for
fiscal year 1992, $2,300,000 for fiscal year 1993, and
$2,400,000 for fiscal year 1994. Of any amounts appropriated
under this section, not more than $1,500 may be made available
in each fiscal year for official representation and
entertainment expenses for foreign dignitaries.
CHAPTER 6--THE ANALYSIS OF REGULATORY FUNCTIONS
Sec.
601. Definitions.
602. Regulatory agenda.
603. Initial regulatory flexibility analysis.
604. Final regulatory flexibility analysis.
605. Avoidance of duplicative or unnecessary analyses.
606. Effect on other law.
607. Preparation of analyses.
608. Procedure for waiver or delay of completion.
609. Procedures for gathering comments.
610. Periodic review of rules.
611. Judicial review.
612. Reports and intervention rights.
Sec. 601. Definitions
For purposes of this chapter--
(1) the term ``agency'' means an agency as defined
in section 551(1) of this title;
(2) the term ``rule'' means any rule for which the
agency publishes a general notice of proposed
rulemaking pursuant to section 553(b) of this title, or
any other law, including any rule of general
applicability governing Federal grants to State and
local governments for which the agency provides an
opportunity for notice and public comment, except that
the term ``rule'' does not include a rule of particular
applicability relating to rates, wages, corporate or
financial structures or reorganizations thereof,
prices, facilities, appliances, services, or allowances
therefor or to valuations, costs or accounting, or
practices relating to such rates, wages, structures,
prices, appliances, services, or allowances;
(3) the term ``small business'' has the same
meaning as the term ``small business concern'' under
section 3 of the Small Business Act, unless an agency,
after consultation with the Office of Advocacy of the
Small Business Administration and after opportunity for
public comment, establishes one or more definitions of
such term which are appropriate to the activities of
the agency and publishes such definition(s) in the
Federal Register;
(4) the term ``small organization'' means any not-
for-profit enterprise which is independently owned and
operated and is not dominant in its field, unless an
agency establishes, after opportunity for public
comment, one or more definitions of such term which are
appropriate to the activities of the agency and
publishes such definition(s) in the Federal Register;
(5) the term ``small governmental jurisdiction''
means governments of cities, counties, towns,
townships, villages, school districts, or special
districts, with a population of less than fifty
thousand, unless an agency establishes, after
opportunity for public comment, one or more definitions
of such term which are appropriate to the activities of
the agency and which are based on such factors as
location in rural or sparsely populated areas or
limited revenues due to the population of such
jurisdiction, and publishes such definition(s) in the
Federal Register;
(6) the term ``small entity'' shall have the same
meaning as the terms ``small business'', ``small
organization'' and ``small governmental jurisdiction''
defined in paragraphs (3), (4) and (5) of this section;
and \1\
(7) the term ``collection of information''--
(A) means the obtaining, causing to be
obtained, soliciting, or requiring the
disclosure to third parties or the public, of
facts or opinions by or for an agency,
regardless of form or format, calling for
either--
(i) answers to identical questions
posed to, or identical reporting or
recordkeeping requirements imposed on,
10 or more persons, other than
agencies, instrumentalities, or
employees of the United States; or
(ii) answers to questions posed to
agencies, instrumentalities, or
employees of the United States which
are to be used for general statistical
purposes; and
(B) shall not include a collection of
information described under section 3518(c)(1)
of title 44, United States Code. \1\
(8) \1\ Recordkeeping requirement.--The term
``recordkeeping requirement'' means a requirement
imposed by an agency on persons to maintain specified
records.
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\1\ So in law. Section 241(a)(2) of P.L. 104-121 (110 Stat. 864)
amended paragraph (6) by striking the period and inserting ``; and'',
and added new paragraphs (7) and (8).
---------------------------------------------------------------------------
Sec. 602. Regulatory agenda
(a) During the months of October and April of each year,
each agency shall publish in the Federal Register a regulatory
flexibility agenda which shall contain--
(1) a brief description of the subject area of any
rule which the agency expects to propose or promulgate
which is likely to have a significant economic impact
on a substantial number of small entities;
(2) a summary of the nature of any such rule under
consideration for each subject area listed in the
agenda pursuant to paragraph (1), the objectives and
legal basis for the issuance of the rule, and an
approximate schedule for completing action on any rule
for which the agency has issued a general notice of
proposed rulemaking,\2\ and
---------------------------------------------------------------------------
\2\ So in original. The comma probably should be a semicolon.
---------------------------------------------------------------------------
(3) the name and telephone number of an agency
official knowledgeable concerning the items listed in
paragraph (1).
(b) Each regulatory flexibility agenda shall be transmitted
to the Chief Counsel for Advocacy of the Small Business
Administration for comment, if any.
(c) Each agency shall endeavor to provide notice of each
regulatory flexibility agenda to small entities or their
representatives through direct notification or publication of
the agenda in publications likely to be obtained by such small
entities and shall invite comments upon each subject area on
the agenda.
(d) Nothing in this section precludes an agency from
considering or acting on any matter not included in a
regulatory flexibility agenda, or requires an agency to
consider or act on any matter listed in such agenda.
Sec. 603. Initial regulatory flexibility analysis
(a) Whenever an agency is required by section 553 of this
title, or any other law, to publish general notice of proposed
rulemaking for any proposed rule, or publishes a notice of
proposed rulemaking for an interpretative rule involving the
internal revenue laws of the United States, the agency shall
prepare and make available for public comment an initial
regulatory flexibility analysis. Such analysis shall describe
the impact of the proposed rule on small entities. The initial
regulatory flexibility analysis or a summary shall be published
in the Federal Register at the time of the publication of
general notice of proposed rulemaking for the rule. The agency
shall transmit a copy of the initial regulatory flexibility
analysis to the Chief Counsel for Advocacy of the Small
Business Administration. In the case of an interpretative rule
involving the internal revenue laws of the United States, this
chapter applies to interpretative rules published in the
Federal Register for codification in the Code of Federal
Regulations, but only to the extent that such interpretative
rules impose on small entities a collection of information
requirement.
(b) Each initial regulatory flexibility analysis required
under this section shall contain--
(1) a description of the reasons why action by the
agency is being considered;
(2) a succinct statement of the objectives of, and
legal basis for, the proposed rule;
(3) a description of and, where feasible, an
estimate of the number of small entities to which the
proposed rule will apply;
(4) a description of the projected reporting,
recordkeeping and other compliance requirements of the
proposed rule, including an estimate of the classes of
small entities which will be subject to the requirement
and the type of professional skills necessary for
preparation of the report or record;\1\
---------------------------------------------------------------------------
\1\ So in law. Probably should be ``; and''.
---------------------------------------------------------------------------
(5) an identification, to the extent practicable,
of all relevant Federal rules which may duplicate,
overlap or conflict with the proposed rule.
(c) Each initial regulatory flexibility analysis shall also
contain a description of any significant alternatives to the
proposed rule which accomplish the stated objectives of
applicable statutes and which minimize any significant economic
impact of the proposed rule on small entities. Consistent with
the stated objectives of applicable statutes, the analysis
shall discuss significant alternatives such as--
(1) the establishment of differing compliance or
reporting requirements or timetables that take into
account the resources available to small entities;
(2) the clarification, consolidation, or
simplification of compliance and reporting requirements
under the rule for such small entities;
(3) the use of performance rather than design
standards; and
(4) an exemption from coverage of the rule, or any
part thereof, for such small entities.
Sec. 604. Final regulatory flexibility analysis
(a) When an agency promulgates a final rule under section
553 of this title, after being required by that section or any
other law to publish a general notice of proposed rulemaking,
or promulgates a final interpretative rule involving the
internal revenue laws of the United States as described in
section 603(a), the agency shall prepare a final regulatory
flexibility analysis. Each final regulatory flexibility
analysis shall contain--
(1) a succinct statement of the need for, and
objectives of, the rule;
(2) a summary of the significant issues raised by
the public comments in response to the initial
regulatory flexibility analysis, a summary of the
assessment of the agency of such issues, and a
statement of any changes made in the proposed rule as a
result of such comments;
(3) a description of and an estimate of the number
of small entities to which the rule will apply or an
explanation of why no such estimate is available;
(4) a description of the projected reporting,
recordkeeping and other compliance requirements of the
rule, including an estimate of the classes of small
entities which will be subject to the requirement and
the type of professional skills necessary for
preparation of the report or record; and
(5) a description of the steps the agency has taken
to minimize the significant economic impact on small
entities consistent with the stated objectives of
applicable statutes, including a statement of the
factual, policy, and legal reasons for selecting the
alternative adopted in the final rule and why each one
of the other significant alternatives to the rule
considered by the agency which affect the impact on
small entities was rejected.
(b) The agency shall make copies of the final regulatory
flexibility analysis available to members of the public and
shall publish in the Federal Register such analysis or a
summary thereof.
Sec. 605. Avoidance of duplicative or unnecessary analyses
(a) Any Federal agency may perform the analyses required by
sections 602, 603, and 604 of this title in conjunction with or
as a part of any other agenda or analysis required by any other
law if such other analysis satisfies the provisions of such
sections.
(b) Sections 603 and 604 of this title shall not apply to
any proposed or final rule if the head of the agency certifies
that the rule will not, if promulgated, have a significant
economic impact on a substantial number of small entities. If
the head of the agency makes a certification under the
preceding sentence, the agency shall publish such certification
in the Federal Register at the time of publication of general
notice of proposed rulemaking for the rule or at the time of
publication of the final rule, along with a statement providing
the factual basis for such certification. The agency shall
provide such certification and statement to the Chief Counsel
for Advocacy of the Small Business Administration.
(c) In order to avoid duplicative action, an agency may
consider a series of closely related rules as one rule for the
purposes of sections 602, 603, 604 and 610 of this title.
Sec. 606. Effect on other law
The requirements of sections 603 and 604 of this title do
not alter in any manner standards otherwise applicable by law
to agency action.
Sec. 607. Preparation of analyses
In complying with the provisions of sections 603 and 604 of
this title, an agency may provide either a quantifiable or
numerical description of the effects of a proposed rule or
alternatives to the proposed rule, or more general descriptive
statements if quantification is not practicable or reliable.
Sec. 608. Procedure for waiver or delay of completion
(a) An agency head may waive or delay the completion of
some or all of the requirements of section 603 of this title by
publishing in the Federal Register, not later than the date of
publication of the final rule, a written finding, with reasons
therefor, that the final rule is being promulgated in response
to an emergency that makes compliance or timely compliance with
the provisions of section 603 of this title impracticable.
(b) Except as provided in section 605(b), an agency head
may not waive the requirements of section 604 of this title. An
agency head may delay the completion of the requirements of
section 604 of this title for a period of not more than one
hundred and eighty days after the date of publication in the
Federal Register of a final rule by publishing in the Federal
Register, not later than such date of publication, a written
finding, with reasons therefor, that the final rule is being
promulgated in response to an emergency that makes timely
compliance with the provisions of section 604 of this title
impracticable. If the agency has not prepared a final
regulatory analysis pursuant to section 604 of this title
within one hundred and eighty days from the date of publication
of the final rule, such rule shall lapse and have no effect.
Such rule shall not be repromulgated until a final regulatory
flexibility analysis has been completed by the agency.
Sec. 609. Procedures for gathering comments
(a) When any rule is promulgated which will have a
significant economic impact on a substantial number of small
entities, the head of the agency promulgating the rule or the
official of the agency with statutory responsibility for the
promulgation of the rule shall assure that small entities have
been given an opportunity to participate in the rulemaking for
the rule through techniques \1\ such as--
---------------------------------------------------------------------------
\1\ Section 244(a)(1) of P.L. 104-121 (110 Stat. 867) attempted to
amend section 609 by inserting ``the reasonable use of'' before
``techniques,''. No comma appears after ``techniques'', therefore the
amendment was not executed.
---------------------------------------------------------------------------
(1) the inclusion in an advanced notice of proposed
rulemaking, if issued, of a statement that the proposed
rule may have a significant economic effect on a
substantial number of small entities;
(2) the publication of general notice of proposed
rulemaking in publications likely to be obtained by
small entities;
(3) the direct notification of interested small
entities;
(4) the conduct of open conferences or public
hearings concerning the rule for small entities
including soliciting and receiving comments over
computer networks; and
(5) the adoption or modification of agency
procedural rules to reduce the cost or complexity of
participation in the rulemaking by small entities.
(b) Prior to publication of an initial regulatory
flexibility analysis which a covered agency is required to
conduct by this chapter--
(1) a covered agency shall notify the Chief Counsel
for Advocacy of the Small Business Administration and
provide the Chief Counsel with information on the
potential impacts of the proposed rule on small
entities and the type of small entities that might be
affected;
(2) not later than 15 days after the date of
receipt of the materials described in paragraph (1),
the Chief Counsel shall identify individuals
representative of affected small entities for the
purpose of obtaining advice and recommendations from
those individuals about the potential impacts of the
proposed rule;
(3) the agency shall convene a review panel for
such rule consisting wholly of full time Federal
employees of the office within the agency responsible
for carrying out the proposed rule, the Office of
Information and Regulatory Affairs within the Office of
Management and Budget, and the Chief Counsel;
(4) the panel shall review any material the agency
has prepared in connection with this chapter, including
any draft proposed rule, collect advice and
recommendations of each individual small entity
representative identified by the agency after
consultation with the Chief Counsel, on issues related
to subsections 603(b), paragraphs (3), (4) and (5) and
603(c); \2\
---------------------------------------------------------------------------
\2\ So in law. See section 244(a)(4) of Public Law 104-121 (110
Stat. 867).
---------------------------------------------------------------------------
(5) not later than 60 days after the date a covered
agency convenes a review panel pursuant to paragraph
(3), the review panel shall report on the comments of
the small entity representatives and its findings as to
issues related to subsections 603(b), paragraphs (3),
(4) and (5) and 603(c) \2\, provided that such report
shall be made public as part of the rulemaking record;
and
(6) where appropriate, the agency shall modify the
proposed rule, the initial regulatory flexibility
analysis or the decision on whether an initial
regulatory flexibility analysis is required.
(c) An agency may in its discretion apply subsection (b) to
rules that the agency intends to certify under subsection
605(b), but the agency believes may have a greater than de
minimis impact on a substantial number of small entities.
(d) For purposes of this section, the term ``covered
agency'' means the Environmental Protection Agency and the
Occupational Safety and Health Administration of the Department
of Labor.
(e) The Chief Counsel for Advocacy, in consultation with
the individuals identified in subsection (b)(2), and with the
Administrator of the Office of Information and Regulatory
Affairs within the Office of Management and Budget, may waive
the requirements of subsections (b)(3), (b)(4), and (b)(5) by
including in the rulemaking record a written finding, with
reasons therefor, that those requirements would not advance the
effective participation of small entities in the rulemaking
process. For purposes of this subsection, the factors to be
considered in making such a finding are as follows:
(1) In developing a proposed rule, the extent to
which the covered agency consulted with individuals
representative of affected small entities with respect
to the potential impacts of the rule and took such
concerns into consideration.
(2) Special circumstances requiring prompt issuance
of the rule.
(3) Whether the requirements of subsection (b)
would provide the individuals identified in subsection
(b)(2) with a competitive advantage relative to other
small entities.
Sec. 610. Periodic review of rules
(a) Within one hundred and eighty days after the effective
date of this chapter, each agency shall publish in the Federal
Register a plan for the periodic review of the rules issued by
the agency which have or will have a significant economic
impact upon a substantial number of small entities. Such plan
may be amended by the agency at any time by publishing the
revision in the Federal Register. The purpose of the review
shall be to determine whether such rules should be continued
without change, or should be amended or rescinded, consistent
with the stated objectives of applicable statutes, to minimize
any significant economic impact of the rules upon a substantial
number of such small entities. The plan shall provide for the
review of all such agency rules existing on the effective date
of this chapter within ten years of that date and for the
review of such rules adopted after the effective date of this
chapter within ten years of the publication of such rules as
the final rule. If the head of the agency determines that
completion of the review of existing rules is not feasible by
the established date, he shall so certify in a statement
published in the Federal Register and may extend the completion
date by one year at a time for a total of not more than five
years.
(b) In reviewing rules to minimize any significant economic
impact of the rule on a substantial number of small entities in
a manner consistent with the stated objectives of applicable
statutes, the agency shall consider the following factors--
(1) the continued need for the rule;
(2) the nature of complaints or comments received
concerning the rule from the public;
(3) the complexity of the rule;
(4) the extent to which the rule overlaps,
duplicates or conflicts with other Federal rules, and,
to the extent feasible, with State and local
governmental rules; and
(5) the length of time since the rule has been
evaluated or the degree to which technology, economic
conditions, or other factors have changed in the area
affected by the rule.
(c) Each year, each agency shall publish in the Federal
Register a list of the rules which have a significant economic
impact on a substantial number of small entities, which are to
be reviewed pursuant to this section during the succeeding
twelve months. The list shall include a brief description of
each rule and the need for and legal basis of such rule and
shall invite public comment upon the rule.
Sec. 611. Judicial review
(a)(1) For any rule subject to this chapter, a small entity
that is adversely affected or aggrieved by final agency action
is entitled to judicial review of agency compliance with the
requirements of sections 601, 604, 605(b), 608(b), and 610 in
accordance with chapter 7. Agency compliance with sections 607
and 609(a) shall be judicially reviewable in connection with
judicial review of section 604.
(2) Each court having jurisdiction to review such rule for
compliance with section 553, or under any other provision of
law, shall have jurisdiction to review any claims of
noncompliance with sections 601, 604, 605(b), 608(b), and 610
in accordance with chapter 7. Agency compliance with sections
607 and 609(a) shall be judicially reviewable in connection
with judicial review of section 604.
(3)(A) A small entity may seek such review during the
period beginning on the date of final agency action and ending
one year later, except that where a provision of law requires
that an action challenging a final agency action be commenced
before the expiration of one year, such lesser period shall
apply to an action for judicial review under this section.
(B) In the case where an agency delays the issuance of a
final regulatory flexibility analysis pursuant to section
608(b) of this chapter, an action for judicial review under
this section shall be filed not later than--
(i) one year after the date the analysis is made
available to the public, or
(ii) where a provision of law requires that an
action challenging a final agency regulation be
commenced before the expiration of the 1-year period,
the number of days specified in such provision of law
that is after the date the analysis is made available
to the public.
(4) In granting any relief in an action under this section,
the court shall order the agency to take corrective action
consistent with this chapter and chapter 7, including, but not
limited to--
(A) remanding the rule to the agency, and
(B) deferring the enforcement of the rule against
small entities unless the court finds that continued
enforcement of the rule is in the public interest.
(5) Nothing in this subsection shall be construed to limit
the authority of any court to stay the effective date of any
rule or provision thereof under any other provision of law or
to grant any other relief in addition to the requirements of
this section.
(b) In an action for the judicial review of a rule, the
regulatory flexibility analysis for such rule, including an
analysis prepared or corrected pursuant to paragraph (a)(4),
shall constitute part of the entire record of agency action in
connection with such review.
(c) Compliance or noncompliance by an agency with the
provisions of this chapter shall be subject to judicial review
only in accordance with this section.
(d) Nothing in this section bars judicial review of any
other impact statement or similar analysis required by any
other law if judicial review of such statement or analysis is
otherwise permitted by law.
Sec. 612. Reports and intervention rights
(a) The Chief Counsel for Advocacy of the Small Business
Administration shall monitor agency compliance with this
chapter and shall report at least annually thereon to the
President and to the Committees on the Judiciary of the Senate
and House of Representatives, the Select Committee on Small
Business of the Senate, and the Committee on Small Business of
the House of Representatives.\1\
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\1\ Section 243(b)(1) of Public Law 104-121 attempted to amend
section 612(a) by striking ``the committees on the Judiciary of the
Senate and the House of Representatives, the Select Committee on Small
Business of the Senate, and the Committee on Small Business of the
House of Representatives'' and inserting ``the Committees on the
Judiciary and Small Business of the Senate and House of
Representatives''. The amendment was not executed because the matter
proposed to be struck is not an exact statement of the law.
---------------------------------------------------------------------------
(b) The Chief Counsel for Advocacy of the Small Business
Administration is authorized to appear as amicus curiae in any
action brought in a court of the United States to review a
rule. In any such action, the Chief Counsel is authorized to
present his or her views with respect to compliance with this
chapter, the adequacy of the rulemaking record with respect to
small entities and the effect of the rule on small entities.
(c) A court of the United States shall grant the
application of the Chief Counsel for Advocacy of the Small
Business Administration to appear in any such action for the
purposes described in subsection (b).
CHAPTER 7--JUDICIAL REVIEW
Sec.
701. Application; definitions.
702. Right of review.
703. Form and venue of proceeding.
704. Actions reviewable.
705. Relief pending review.
706. Scope of review.
Sec. 701. Application; definitions
(a) This chapter applies, according to the provisions
thereof, except to the extent that--
(1) statutes preclude judicial review; or
(2) agency action is committed to agency discretion
by law.
(b) For the purpose of this chapter--
(1) ``agency'' means each authority of the
Government of the United States, whether or not it is
within or subject to review by another agency, but does
not include--
(A) the Congress;
(B) the courts of the United States;
(C) the governments of the territories or
possessions of the United States;
(D) the government of the District of
Columbia;
(E) agencies composed of representatives of
the parties or of representatives of
organizations of the parties to the disputes
determined by them;
(F) courts martial and military
commissions;
(G) military authority exercised in the
field in time of war or in occupied territory;
or
(H) functions conferred by sections 1738,
1739, 1743, and 1744 of title 12; chapter 2 of
title 41; subchapter II of chapter 471 of title
49; or sections 1884, 1891-1902, and former
section 1641(b)(2), of title 50, appendix; and
(2) ``person'', ``rule'', ``order'', ``license'',
``sanction'', ``relief'', and ``agency action'' have
the meanings given them by section 551 of this title.
Sec. 702. Right of review
A person suffering legal wrong because of agency action, or
adversely affected or aggrieved by agency action within the
meaning of a relevant statute, is entitled to judicial review
thereof. An action in a court of the United States seeking
relief other than money damages and stating a claim that an
agency or an officer or employee thereof acted or failed to act
in an official capacity or under color of legal authority shall
not be dismissed nor relief therein be denied on the ground
that it is against the United States or that the United States
is an indispensable party. The United States may be named as a
defendant in any such action, and a judgment or decree may be
entered against the United States: Provided, That any mandatory
or injunctive decree shall specify the Federal officer or
officers (by name or by title), and their successors in office,
personally responsible for compliance. Nothing herein (1)
affects other limitations on judicial review or the power or
duty of the court to dismiss any action or deny relief on any
other appropriate legal or equitable ground; or (2) confers
authority to grant relief if any other statute that grants
consent to suit expressly or impliedly forbids the relief which
is sought.
Sec. 703. Form and venue of proceeding
The form of proceeding for judicial review is the special
statutory review proceeding relevant to the subject matter in a
court specified by statute or, in the absence or inadequacy
thereof, any applicable form of legal action, including actions
for declaratory judgments or writs of prohibitory or mandatory
injunction or habeas corpus, in a court of competent
jurisdiction. If no special statutory review proceeding is
applicable, the action for judicial review may be brought
against the United States, the agency by its official title, or
the appropriate officer. Except to the extent that prior,
adequate, and exclusive opportunity for judicial review is
provided by law, agency action is subject to judicial review in
civil or criminal proceedings for judicial enforcement.
Sec. 704. Actions reviewable
Agency action made reviewable by statute and final agency
action for which there is no other adequate remedy in a court
are subject to judicial review. A preliminary, procedural, or
intermediate agency action or ruling not directly reviewable is
subject to review on the review of the final agency action.
Except as otherwise expressly required by statute, agency
action otherwise final is final for the purposes of this
section whether or not there has been presented or determined
an application for a declaratory order, for any form of
reconsideration, or, unless the agency otherwise requires by
rule and provides that the action meanwhile is inoperative, for
an appeal to superior agency authority.
Sec. 705. Relief pending review
When an agency finds that justice so requires, it may
postpone the effective date of action taken by it, pending
judicial review. On such conditions as may be required and to
the extent necessary to prevent irreparable injury, the
reviewing court, including the court to which a case may be
taken on appeal from or on application for certiorari or other
writ to a reviewing court, may issue all necessary and
appropriate process to postpone the effective date of an agency
action or to preserve status or rights pending conclusion of
the review proceedings.
Sec. 706. Scope of review
To the extent necessary to decision and when presented, the
reviewing court shall decide all relevant questions of law,
interpret constitutional and statutory provisions, and
determine the meaning or applicability of the terms of an
agency action. The reviewing court shall--
(1) compel agency action unlawfully withheld or
unreasonably delayed; and
(2) hold unlawful and set aside agency action,
findings, and conclusions found to be--
(A) arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with
law;
(B) contrary to constitutional right,
power, privilege, or immunity;
(C) in excess of statutory jurisdiction,
authority, or limitations, or short of
statutory right;
(D) without observance of procedure
required by law;
(E) unsupported by substantial evidence in
a case subject to sections 556 and 557 of this
title or otherwise reviewed on the record of an
agency hearing provided by statute; or
(F) unwarranted by the facts to the extent
that the facts are subject to trial de novo by
the reviewing court.
In making the foregoing determinations, the court shall review
the whole record or those parts of it cited by a party, and due
account shall be taken of the rule of prejudicial error.
CHAPTER 8--CONGRESSIONAL REVIEW OF AGENCY RULEMAKING
Sec.
801. Congressional review.
802. Congressional disapproval procedure.
803. Special rule on statutory, regulatory, and judicial deadlines.
804. Definitions.
805. Judicial review.
806. Applicability; severability.
807. Exemption for monetary policy.
808. Effective date of certain rules.
Sec. 801. Congressional review
(a)(1)(A) Before a rule can take effect, the Federal agency
promulgating such rule shall submit to each House of the
Congress and to the Comptroller General a report containing--
(i) a copy of the rule;
(ii) a concise general statement relating to the
rule, including whether it is a major rule; and
(iii) the proposed effective date of the rule.
(B) On the date of the submission of the report under
subparagraph (A), the Federal agency promulgating the rule
shall submit to the Comptroller General and make available to
each House of Congress--
(i) a complete copy of the cost-benefit analysis of
the rule, if any;
(ii) the agency's actions relevant to sections 603,
604, 605, 607, and 609;
(iii) the agency's actions relevant to sections
202, 203, 204, and 205 of the Unfunded Mandates Reform
Act of 1995; and
(iv) any other relevant information or requirements
under any other Act and any relevant Executive orders.
(C) Upon receipt of a report submitted under subparagraph
(A), each House shall provide copies of the report to the
chairman and ranking member of each standing committee with
jurisdiction under the rules of the House of Representatives or
the Senate to report a bill to amend the provision of law under
which the rule is issued.
(2)(A) The Comptroller General shall provide a report on
each major rule to the committees of jurisdiction in each House
of the Congress by the end of 15 calendar days after the
submission or publication date as provided in section
802(b)(2). The report of the Comptroller General shall include
an assessment of the agency's compliance with procedural steps
required by paragraph (1)(B).
(B) Federal agencies shall cooperate with the Comptroller
General by providing information relevant to the Comptroller
General's report under subparagraph (A).
(3) A major rule relating to a report submitted under
paragraph (1) shall take effect on the latest of--
(A) the later of the date occurring 60 days after
the date on which--
(i) the Congress receives the report
submitted under paragraph (1); or
(ii) the rule is published in the Federal
Register, if so published;
(B) if the Congress passes a joint resolution of
disapproval described in section 802 relating to the
rule, and the President signs a veto of such
resolution, the earlier date--
(i) on which either House of Congress votes
and fails to override the veto of the
President; or
(ii) occurring 30 session days after the
date on which the Congress received the veto
and objections of the President; or
(C) the date the rule would have otherwise taken
effect, if not for this section (unless a joint
resolution of disapproval under section 802 is
enacted).
(4) Except for a major rule, a rule shall take effect as
otherwise provided by law after submission to Congress under
paragraph (1).
(5) Notwithstanding paragraph (3), the effective date of a
rule shall not be delayed by operation of this chapter beyond
the date on which either House of Congress votes to reject a
joint resolution of disapproval under section 802.
(b)(1) A rule shall not take effect (or continue), if the
Congress enacts a joint resolution of disapproval, described
under section 802, of the rule.
(2) A rule that does not take effect (or does not continue)
under paragraph (1) may not be reissued in substantially the
same form, and a new rule that is substantially the same as
such a rule may not be issued, unless the reissued or new rule
is specifically authorized by a law enacted after the date of
the joint resolution disapproving the original rule.
(c)(1) Notwithstanding any other provision of this section
(except subject to paragraph (3)), a rule that would not take
effect by reason of subsection (a)(3) may take effect, if the
President makes a determination under paragraph (2) and submits
written notice of such determination to the Congress.
(2) Paragraph (1) applies to a determination made by the
President by Executive order that the rule should take effect
because such rule is--
(A) necessary because of an imminent threat to
health or safety or other emergency;
(B) necessary for the enforcement of criminal laws;
(C) necessary for national security; or
(D) issued pursuant to any statute implementing an
international trade agreement.
(3) An exercise by the President of the authority under
this subsection shall have no effect on the procedures under
section 802 or the effect of a joint resolution of disapproval
under this section.
(d)(1) In addition to the opportunity for review otherwise
provided under this chapter, in the case of any rule for which
a report was submitted in accordance with subsection (a)(1)(A)
during the period beginning on the date occurring--
(A) in the case of the Senate, 60 session days, or
(B) in the case of the House of Representatives, 60
legislative days,
before the date the Congress adjourns a session of Congress
through the date on which the same or succeeding Congress first
convenes its next session, section 802 shall apply to such rule
in the succeeding session of Congress.
(2)(A) In applying section 802 for purposes of such
additional review, a rule described under paragraph (1) shall
be treated as though--
(i) such rule were published in the Federal
Register (as a rule that shall take effect) on--
(I) in the case of the Senate, the 15th
session day, or
(II) in the case of the House of
Representatives, the 15th legislative day,
after the succeeding session of Congress first
convenes; and
(ii) a report on such rule were submitted to
Congress under subsection (a)(1) on such date.
(B) Nothing in this paragraph shall be construed to affect
the requirement under subsection (a)(1) that a report shall be
submitted to Congress before a rule can take effect.
(3) A rule described under paragraph (1) shall take effect
as otherwise provided by law (including other subsections of
this section).
(e)(1) For purposes of this subsection, section 802 shall
also apply to any major rule promulgated between March 1, 1996,
and the date of the enactment of this chapter.
(2) In applying section 802 for purposes of Congressional
review, a rule described under paragraph (1) shall be treated
as though--
(A) such rule were published in the Federal
Register on the date of enactment of this chapter; and
(B) a report on such rule were submitted to
Congress under subsection (a)(1) on such date.
(3) The effectiveness of a rule described under paragraph
(1) shall be as otherwise provided by law, unless the rule is
made of no force or effect under section 802.
(f) Any rule that takes effect and later is made of no
force or effect by enactment of a joint resolution under
section 802 shall be treated as though such rule had never
taken effect.
(g) If the Congress does not enact a joint resolution of
disapproval under section 802 respecting a rule, no court or
agency may infer any intent of the Congress from any action or
inaction of the Congress with regard to such rule, related
statute, or joint resolution of disapproval.
Sec. 802. Congressional disapproval procedure
(a) For purposes of this section, the term ``joint
resolution'' means only a joint resolution introduced in the
period beginning on the date on which the report referred to in
section 801(a)(1)(A) is received by Congress and ending 60 days
thereafter (excluding days either House of Congress is
adjourned for more than 3 days during a session of Congress),
the matter after the resolving clause of which is as follows:
``That Congress disapproves the rule submitted by the ____
relating to ____, and such rule shall have no force or
effect.'' (The blank spaces being appropriately filled in).
(b)(1) A joint resolution described in subsection (a) shall
be referred to the committees in each House of Congress with
jurisdiction.
(2) For purposes of this section, the term ``submission or
publication date'' means the later of the date on which--
(A) the Congress receives the report submitted
under section 801(a)(1); or
(B) the rule is published in the Federal Register,
if so published.
(c) In the Senate, if the committee to which is referred a
joint resolution described in subsection (a) has not reported
such joint resolution (or an identical joint resolution) at the
end of 20 calendar days after the submission or publication
date defined under subsection (b)(2), such committee may be
discharged from further consideration of such joint resolution
upon a petition supported in writing by 30 Members of the
Senate, and such joint resolution shall be placed on the
calendar.
(d)(1) In the Senate, when the committee to which a joint
resolution is referred has reported, or when a committee is
discharged (under subsection (c)) from further consideration of
a joint resolution described in subsection (a), it is at any
time thereafter in order (even though a previous motion to the
same effect has been disagreed to) for a motion to proceed to
the consideration of the joint resolution, and all points of
order against the joint resolution (and against consideration
of the joint resolution) are waived. The motion is not subject
to amendment, or to a motion to postpone, or to a motion to
proceed to the consideration of other business. A motion to
reconsider the vote by which the motion is agreed to or
disagreed to shall not be in order. If a motion to proceed to
the consideration of the joint resolution is agreed to, the
joint resolution shall remain the unfinished business of the
Senate until disposed of.
(2) In the Senate, debate on the joint resolution, and on
all debatable motions and appeals in connection therewith,
shall be limited to not more than 10 hours, which shall be
divided equally between those favoring and those opposing the
joint resolution. A motion further to limit debate is in order
and not debatable. An amendment to, or a motion to postpone, or
a motion to proceed to the consideration of other business, or
a motion to recommit the joint resolution is not in order.
(3) In the Senate, immediately following the conclusion of
the debate on a joint resolution described in subsection (a),
and a single quorum call at the conclusion of the debate if
requested in accordance with the rules of the Senate, the vote
on final passage of the joint resolution shall occur.
(4) Appeals from the decisions of the Chair relating to the
application of the rules of the Senate to the procedure
relating to a joint resolution described in subsection (a)
shall be decided without debate.
(e) In the Senate the procedure specified in subsection (c)
or (d) shall not apply to the consideration of a joint
resolution respecting a rule--
(1) after the expiration of the 60 session days
beginning with the applicable submission or publication
date, or
(2) if the report under section 801(a)(1)(A) was
submitted during the period referred to in section
801(d)(1), after the expiration of the 60 session days
beginning on the 15th session day after the succeeding
session of Congress first convenes.
(f) If, before the passage by one House of a joint
resolution of that House described in subsection (a), that
House receives from the other House a joint resolution
described in subsection (a), then the following procedures
shall apply:
(1) The joint resolution of the other House shall
not be referred to a committee.
(2) With respect to a joint resolution described in
subsection (a) of the House receiving the joint
resolution--
(A) the procedure in that House shall be
the same as if no joint resolution had been
received from the other House; but
(B) the vote on final passage shall be on
the joint resolution of the other House.
(g) This section is enacted by Congress--
(1) as an exercise of the rulemaking power of the
Senate and House of Representatives, respectively, and
as such it is deemed a part of the rules of each House,
respectively, but applicable only with respect to the
procedure to be followed in that House in the case of a
joint resolution described in subsection (a), and it
supersedes other rules only to the extent that it is
inconsistent with such rules; and
(2) with full recognition of the constitutional
right of either House to change the rules (so far as
relating to the procedure of that House) at any time,
in the same manner, and to the same extent as in the
case of any other rule of that House.
Sec. 803. Special rule on statutory, regulatory, and judicial deadlines
(a) In the case of any deadline for, relating to, or
involving any rule which does not take effect (or the
effectiveness of which is terminated) because of enactment of a
joint resolution under section 802, that deadline is extended
until the date 1 year after the date of enactment of the joint
resolution. Nothing in this subsection shall be construed to
affect a deadline merely by reason of the postponement of a
rule's effective date under section 801(a).
(b) The term ``deadline'' means any date certain for
fulfilling any obligation or exercising any authority
established by or under any Federal statute or regulation, or
by or under any court order implementing any Federal statute or
regulation.
Sec. 804. Definitions
For purposes of this chapter--
(1) The term ``Federal agency'' means any agency as
that term is defined in section 551(1).
(2) The term ``major rule'' means any rule that the
Administrator of the Office of Information and
Regulatory Affairs of the Office of Management and
Budget finds has resulted in or is likely to result
in--
(A) an annual effect on the economy of
$100,000,000 or more;
(B) a major increase in costs or prices for
consumers, individual industries, Federal,
State, or local government agencies, or
geographic regions; or
(C) significant adverse effects on
competition, employment, investment,
productivity, innovation, or on the ability of
United States-based enterprises to compete with
foreign-based enterprises in domestic and
export markets.
The term does not include any rule promulgated under
the Telecommunications Act of 1996 and the amendments
made by that Act.
(3) The term ``rule'' has the meaning given such
term in section 551, except that such term does not
include--
(A) any rule of particular applicability,
including a rule that approves or prescribes
for the future rates, wages, prices, services,
or allowances therefor, corporate or financial
structures, reorganizations, mergers, or
acquisitions thereof, or accounting practices
or disclosures bearing on any of the foregoing;
(B) any rule relating to agency management
or personnel; or
(C) any rule of agency organization,
procedure, or practice that does not
substantially affect the rights or obligations
of non-agency parties.
Sec. 805. Judicial review
No determination, finding, action, or omission under this
chapter shall be subject to judicial review.
Sec. 806. Applicability; severability
(a) This chapter shall apply notwithstanding any other
provision of law.
(b) If any provision of this chapter or the application of
any provision of this chapter to any person or circumstance, is
held invalid, the application of such provision to other
persons or circumstances, and the remainder of this chapter,
shall not be affected thereby.
Sec. 807. Exemption for monetary policy
Nothing in this chapter shall apply to rules that concern
monetary policy proposed or implemented by the Board of
Governors of the Federal Reserve System or the Federal Open
Market Committee.
Sec. 808. Effective date of certain rules
Notwithstanding section 801--
(1) any rule that establishes, modifies, opens,
closes, or conducts a regulatory program for a
commercial, recreational, or subsistence activity
related to hunting, fishing, or camping, or
(2) any rule which an agency for good cause finds
(and incorporates the finding and a brief statement of
reasons therefor in the rule issued) that notice and
public procedure thereon are impracticable,
unnecessary, or contrary to the public interest,
shall take effect at such time as the Federal agency
promulgating the rule determines.
CHAPTER 9--EXECUTIVE REORGANIZATION
Sec.
901. Purpose.
902. Definitions.
903. Reorganization plans.
904. Additional contents of reorganization plan.
905. Limitation on powers.
906. Effective date and publication of reorganization plans.
907. Effect on other laws, pending legal proceedings, and unexpended
appropriations.
908. Rules of Senate and House of Representatives on reorganization
plans.
909. Terms of resolution.
910. Introduction and reference of resolution.
911. Discharge of committee considering resolution.
912. Procedure after report or discharge of committee; debate; vote
on final passage.
Sec. 901. Purpose
(a) The Congress declares that it is the policy of the
United States--
(1) to promote the better execution of the laws,
the more effective management of the executive branch
and of its agencies and functions, and the expeditious
administration of the public business;
(2) to reduce expenditures and promote economy to
the fullest extent consistent with the efficient
operation of the Government;
(3) to increase the efficiency of the operations of
the Government to the fullest extent practicable;
(4) to group, coordinate, and consolidate agencies
and functions of the Government, as nearly as may be,
according to major purposes;
(5) to reduce the number of agencies by
consolidating those having similar functions under a
single head, and to abolish such agencies or functions
thereof as may not be necessary for the efficient
conduct of the Government; and
(6) to eliminate overlapping and duplication of
effort.
(b) Congress declares that the public interest demands the
carrying out of the purposes of subsection (a) of this section
and that the purposes may be accomplished in great measure by
proceeding under this chapter, and can be accomplished more
speedily thereby than by the enactment of specific legislation.
(c) It is the intent of Congress that the President should
provide appropriate means for broad citizen advice and
participation in restructuring and reorganizing the executive
branch.
(d) The President shall from time to time examine the
organization of all agencies and shall determine what changes
in such organization are necessary to carry out any policy set
forth in subsection (a) of this section.
Sec. 902. Definitions
For the purpose of this chapter--
(1) ``agency'' means--
(A) an Executive agency or part thereof;
and
(B) an office or officer in the executive
branch;
but does not include the General Accounting Office or
the Comptroller General of the United States;
(2) ``reorganization'' means a transfer,
consolidation, coordination, authorization, or
abolition, referred to in section 903 of this title;
and
(3) ``officer'' is not limited by section 2104 of
this title.
Sec. 903. Reorganization plans
(a) Whenever the President, after investigation, finds that
changes in the organization of agencies are necessary to carry
out any policy set forth in section 901(a) of this title, he
shall prepare a reorganization plan specifying the
reorganizations he finds are necessary. Any plan may provide
for--
(1) the transfer of the whole or a part of an
agency, or of the whole or a part of the functions
thereof, to the jurisdiction and control of another
agency;
(2) the abolition of all or a part of the functions
of an agency, except that no enforcement function or
statutory program shall be abolished by the plan;
(3) the consolidation or coordination of the whole
or a part of an agency, or of the whole or a part of
the functions thereof, with the whole or a part of
another agency or the functions thereof;
(4) the consolidation or coordination of part of an
agency or the functions thereof with another part of
the same agency or the functions thereof;
(5) the authorization of an officer to delegate any
of his functions; or
(6) the abolition of the whole or a part of an
agency which agency or part does not have, or on the
taking effect of the reorganization plan will not have,
any functions.
The President shall transmit the plan (bearing an
identification number) to the Congress together with a
declaration that, with respect to each reorganization included
in the plan, he has found that the reorganization is necessary
to carry out any policy set forth in section 901(a) of this
title.
(b) The President shall have a reorganization plan
delivered to both Houses on the same day and to each House
while it is in session, except that no more than three plans
may be pending before the Congress at one time. In his message
transmitting a reorganization plan, the President shall specify
with respect to each abolition of a function included in the
plan the statutory authority for the exercise of the function.
The message shall also estimate any reduction or increase in
expenditures (itemized so far as practicable), and describe any
improvements in management, delivery of Federal services,
execution of the laws, and increases in efficiency of
Government operations, which it is expected will be realized as
a result of the reorganizations included in the plan. In
addition, the President's message shall include an
implementation section which shall (1) describe in detail (A)
the actions necessary or planned to complete the
reorganization, (B) the anticipated nature and substance of any
orders, directives, and other administrative and operational
actions which are expected to be required for completing or
implementing the reorganization, and (C) any preliminary
actions which have been taken in the implementation process,
and (2) contain a projected timetable for completion of the
implementation process. The President shall also submit such
further background or other information as the Congress may
require for its consideration of the plan.
(c) Any time during the period of 60 calendar days of
continuous session of Congress after the date on which the plan
is transmitted to it, but before any resolution described in
section 909 has been ordered reported in either House, the
President may make amendments or modifications to the plan,
consistent with sections 903-905 of this title, which
modifications or revisions shall thereafter be treated as a
part of the reorganization plan originally transmitted and
shall not affect in any way the time limits otherwise provided
for in this chapter. The President may withdraw the plan any
time prior to the conclusion of 90 calendar days of continuous
session of Congress following the date on which the plan is
submitted to Congress.
Sec. 904. Additional contents of reorganization plan
A reorganization plan transmitted by the President under
section 903 of this title--
(1) may, subject to section 905, change, in such
cases as the President considers necessary, the name of
an agency affected by a reorganization and the title of
its head, and shall designate the name of an agency
resulting from a reorganization and the title of its
head;
(2) may provide for the appointment and pay of the
head and one or more officers of any agency (including
an agency resulting from a consolidation or other type
of reorganization) if the President finds, and in his
message transmitting the plan declares, that by reason
of a reorganization made by the plan the provisions are
necessary;
(3) shall provide for the transfer or other
disposition of the records, property, and personnel
affected by a reorganization;
(4) shall provide for the transfer of such
unexpended balances of appropriations, and of other
funds, available for use in connection with a function
or agency affected by a reorganization, as the
President considers necessary by reason of the
reorganization for use in connection with the functions
affected by the reorganization, or for the use of the
agency which shall have the functions after the
reorganization plan is effective; and
(5) shall provide for terminating the affairs of an
agency abolished.
A reorganization plan transmitted by the President containing
provisions authorized by paragraph (2) of this section may
provide that the head of an agency be an individual or a
commission or board with more than one member. In the case of
an appointment of the head of such an agency, the term of
office may not be fixed at more than four years, the pay may
not be at a rate in excess of that found by the President to be
applicable to comparable officers in the executive branch, and
if the appointment is not to a position in the competitive
service, it shall be by the President, by and with the advice
and consent of the Senate. Any reorganization plan transmitted
by the President containing provisions required by paragraph
(4) of this section shall provide for the transfer of
unexpended balances only if such balances are used for the
purposes for which the appropriation was originally made.
Sec. 905. Limitation on powers
(a) A reorganization plan may not provide for, and a
reorganization under this chapter may not have the effect of--
(1) creating a new executive department or renaming
an existing executive department, abolishing or
transferring an executive department or independent
regulatory agency, or all the functions thereof, or
consolidating two or more executive departments or two
or more independent regulatory agencies, or all the
functions thereof;
(2) continuing an agency beyond the period
authorized by law for its existence or beyond the time
when it would have terminated if the reorganization had
not been made;
(3) continuing a function beyond the period
authorized by law for its exercise or beyond the time
when it would have terminated if the reorganization had
not been made;
(4) authorizing an agency to exercise a function
which is not expressly authorized by law at the time
the plan is transmitted to Congress;
(5) creating a new agency which is not a component
or part of an existing executive department or
independent agency;
(6) increasing the term of an office beyond that
provided by law for the office; or
(7) dealing with more than one logically consistent
subject matter.
(b) A provision contained in a reorganization plan may take
effect only if the plan is transmitted to Congress (in
accordance with section 903(b)) on or before December 31, 1984.
Sec. 906. Effective date and publication of reorganization plans
(a) Except as provided under subsection (c) of this
section, a reorganization plan shall be effective upon approval
by the President of a resolution (as defined in section 909)
with respect to such plan, if such resolution is passed by the
House of Representatives and the Senate, within the first
period of 90 calendar days of continuous session of Congress
after the date on which the plan is transmitted to Congress.
Failure of either House to act upon such resolution by the end
of such period shall be the same as disapproval of the
resolution.
(b) For the purpose of this chapter--
(1) continuity of session is broken only by an
adjournment of Congress sine die; and
(2) the days on which either House is not in
session because of an adjournment of more than three
days to a day certain are excluded in the computation
of any period of time in which Congress is in
continuous session.
(c) Under provisions contained in a reorganization plan,
any provision thereof may be effective at a time later than the
date on which the plan otherwise is effective.
(d) A reorganization plan which is effective shall be
printed (1) in the Statutes at Large in the same volume as the
public laws and (2) in the Federal Register.
Sec. 907. Effect on other laws, pending legal proceedings, and
unexpended appropriations
(a) A statute enacted, and a regulation or other action
made, prescribed, issued, granted, or performed in respect of
or by an agency or function affected by a reorganization under
this chapter, before the effective date of the reorganization,
has, except to the extent rescinded, modified, superseded, or
made inapplicable by or under authority of law or by the
abolition of a function, the same effect as if the
reorganization had not been made. However, if the statute,
regulation, or other action has vested the functions in the
agency from which it is removed under the reorganization plan,
the function, insofar as it is to be exercised after the plan
becomes effective, shall be deemed as vested in the agency
under which the function is placed by the plan.
(b) For the purpose of subsection (a) of this section,
``regulation or other action'' means a regulation, rule, order,
policy, determination, directive, authorization, permit,
privilege, requirement, designation, or other action.
(c) A suit, action, or other proceeding lawfully commenced
by or against the head of an agency or other officer of the
United States, in his official capacity or in relation to the
discharge of his official duties, does not abate by reason of
the taking effect of a reorganization plan under this chapter.
On motion or supplemental petition filed at any time within
twelve months after the reorganization plan takes effect,
showing a necessity for a survival of the suit, action, or
other proceeding to obtain a settlement of the questions
involved, the court may allow the suit, action, or other
proceeding to be maintained by or against the successor of the
head or officer under the reorganization effected by the plan
or, if there is no successor, against such agency or officer as
the President designates.
(d) The appropriations or portions of appropriations
unexpended by reason of the operation of the chapter may not be
used for any purpose, but shall revert to the Treasury.
Sec. 908. Rules of Senate and House of Representatives on
reorganization plans
Sections 909 through 912 of this title are enacted by
Congress--
(1) as an exercise of the rulemaking power of the
Senate and the House of Representatives, respectively,
and as such they are deemed a part of the rules of each
House, respectively, but applicable only with respect
to the procedure to be followed in that House in the
case of resolutions with respect to any reorganization
plans transmitted to Congress (in accordance with
section 903(b) of this chapter) on or before December
31, 1984; and they supersede other rules only to the
extent that they are inconsistent therewith; and
(2) with full recognition of the constitutional
right of either House to change the rules (so far as
relating to the procedure of that House) at any time,
in the same manner and to the same extent as in the
case of any other rule of that House.
Sec. 909. Terms of resolution
For the purpose of sections 908 through 912 of this title,
``resolution'' means only a joint resolution of the Congress,
the matter after the resolving clause of which is as follows:
``That the Congress approves the reorganization plan numbered
transmitted to the Congress by the President on , 19
.'', and includes such modifications and revisions as are
submitted by the President under section 903(c) of this
chapter. The blank spaces therein are to be filled
appropriately. The term does not include a resolution which
specifies more than one reorganization plan.
Sec. 910. Introduction and reference of resolution
(a) No later than the first day of session following the
day on which a reorganization plan is transmitted to the House
of Representatives and the Senate under section 903, a
resolution, as defined in section 909, shall be introduced (by
request) in the House by the chairman of the Government
Operations Committee of the House, or by a Member or Members of
the House designated by such chairman; and shall be introduced
(by request) in the Senate by the chairman of the Governmental
Affairs Committee of the Senate, or by a Member or Members of
the Senate designated by such chairman.
(b) A resolution with respect to a reorganization plan
shall be referred to the Committee on Governmental Affairs of
the Senate and the Committee on Government Operations of the
House (and all resolutions with respect to the same plan shall
be referred to the same committee) by the President of the
Senate or the Speaker of the House of Representatives, as the
case may be. The committee shall make its recommendations to
the House of Representatives or the Senate, respectively,
within 75 calendar days of continuous session of Congress
following the date of such resolution's introduction.
Sec. 911. Discharge of committee considering resolution
If the committee to which is referred a resolution
introduced pursuant to subsection (a) of section 910 (or, in
the absence of such a resolution, the first resolution
introduced with respect to the same reorganization plan) has
not reported such resolution or identical resolution at the end
of 75 calendar days of continuous session of Congress after its
introduction, such committee shall be deemed to be discharged
from further consideration of such resolution and such
resolution shall be placed on the appropriate calendar of the
House involved.
Sec. 912. Procedure after report or discharge of committee; debate;
vote on final passage
(a) When the committee has reported, or has been deemed to
be discharged (under section 911) from further consideration
of, a resolution with respect to a reorganization plan, it is
at any time thereafter in order (even though a previous motion
to the same effect has been disagreed to) for any Member of the
respective House to move to proceed to the consideration of the
resolution. The motion is highly privileged and is not
debatable. The motion shall not be subject to amendment, or to
a motion to postpone, or a motion to proceed to the
consideration of other business. A motion to reconsider the
vote by which the motion is agreed to or disagreed to shall not
be in order. If a motion to proceed to the consideration of the
resolution is agreed to, the resolution shall remain the
unfinished business of the respective House until disposed of.
(b) Debate on the resolution, and on all debatable motions
and appeals in connection therewith, shall be limited to not
more than ten hours, which shall be divided equally between
individuals favoring and individuals opposing the resolution. A
motion further to limit debate is in order and not debatable.
An amendment to, or a motion to postpone, or a motion to
proceed to the consideration of other business, or a motion to
recommit the resolution is not in order. A motion to reconsider
the vote by which the resolution is passed or rejected shall
not be in order.
(c) Immediately following the conclusion of the debate on
the resolution with respect to a reorganization plan, and a
single quorum call at the conclusion of the debate if requested
in accordance with the rules of the appropriate House, the vote
on final passage of the resolution shall occur.
(d) Appeals from the decisions of the Chair relating to the
application of the rules of the Senate or the House of
Representatives, as the case may be, to the procedure relating
to a resolution with respect to a reorganization plan shall be
decided without debate.
(e) If, prior to the passage by one House of a resolution
of that House, that House receives a resolution with respect to
the same reorganization plan from the other House, then--
(1) the procedure in that House shall be the same
as if no resolution had been received from the other
House; but
(2) the vote on final passage shall be on the
resolution of the other House.
PART II--CIVIL SERVICE FUNCTIONS AND RESPONSIBILITIES
Chap. Sec.
Office of Personnel Management................................1101
Merit Systems Protection Board, Office of Special Counsel, and 12.
Employee Right of Action....................................1201
Special Authority.............................................1301
Political Activity of Certain State and Local Employees.......1501
CHAPTER 11--OFFICE OF PERSONNEL MANAGEMENT
Sec.
1101. Office of Personnel Management.
1102. Director; Deputy Director; Associate Directors.
1103. Functions of the Director.
1104. Delegation of authority for personnel management.
1105. Administrative procedure.
Sec. 1101. Office of Personnel Management
The Office of Personnel Management is an independent
establishment in the executive branch. The Office shall have an
official seal, which shall be judicially noticed, and shall
have its principal office in the District of Columbia, and may
have field offices in other appropriate locations.
Sec. 1102. Director; Deputy Director; Associate Directors
(a) There is at the head of the Office of Personnel
Management a Director of the Office of Personnel Management
appointed by the President, by and with the advice and consent
of the Senate. The term of office of any individual appointed
as Director shall be 4 years.
(b) There is in the Office a Deputy Director of the Office
of Personnel Management appointed by the President, by and with
the advice and consent of the Senate. The Deputy Director shall
perform such functions as the Director may from time to time
prescribe and shall act as Director during the absence or
disability of the Director or when the office of Director is
vacant.
(c) No individual shall, while serving as Director or
Deputy Director, serve in any other office or position in the
Government of the United States except as otherwise provided by
law or at the direction of the President. The Director and
Deputy Director shall not recommend any individual for
appointment to any position (other than Deputy Director of the
Office) which requires the advice and consent of the Senate.
(d) There may be within the Office of Personnel Management
not more than 5 Associate Directors, as determined from time to
time by the Director. Each Associate Director shall be
appointed by the Director.
Sec. 1103. Functions of the Director
(a) The following functions are vested in the Director of
the Office of Personnel Management, and shall be performed by
the Director, or subject to section 1104 of this title, by such
employees of the Office as the Director designates:
(1) securing accuracy, uniformity, and justice in
the functions of the Office;
(2) appointing individuals to be employed by the
Office;
(3) directing and supervising employees of the
Office, distributing business among employees and
organizational units of the Office, and directing the
internal management of the Office;
(4) directing the preparation of requests for
appropriations for the Office and the use and
expenditure of funds by the Office;
(5) executing, administering, and enforcing--
(A) the civil service rules and regulations
of the President and the Office and the laws
governing the civil service; and
(B) the other activities of the Office
including retirement and classification
activities;
except with respect to functions for which the Merit
Systems Protection Board or the Special Counsel is
primarily responsible;
(6) reviewing the operations under chapter 87 of
this title;
(7) aiding the President, as the President may
request, in preparing such civil service rules as the
President prescribes, and otherwise advising the
President on actions which may be taken to promote an
efficient civil service and a systematic application of
the merit system principles, including recommending
policies relating to the selection, promotion,
transfer, performance, pay, conditions of service,
tenure, and separation of employees;
(8) conducting, or otherwise providing for the
conduct of, studies and research under chapter 47 of
this title into methods of assuring improvements in
personnel management; and
(9) incurring official reception and representation
expenses of the Office subject to any limitation
prescribed in any law.
(b)(1) The Director shall publish in the Federal Register
general notice of any rule or regulation which is proposed by
the Office and the application of which does not apply solely
to the Office or its employees. Any such notice shall include
the matter required under section 553(b)(1), (2), and (3) of
this title.
(2) The Director shall take steps to ensure that--
(A) any proposed rule or regulation to which
paragraph (1) of this subsection applies is posted in
offices of Federal agencies maintaining copies of the
Federal personnel regulations; and
(B) to the extent the Director determines
appropriate and practical, exclusive representatives of
employees affected by such proposed rule or regulation
and interested members of the public are notified of
such proposed rule or regulation.
(3) Paragraphs (1) and (2) of this subsection shall not
apply to any proposed rule or regulation which is temporary in
nature and which is necessary to be implemented expeditiously
as a result of an emergency.
(4) Paragraphs (1) and (2) of this subsection and section
1105 of this title shall not apply to the establishment of any
schedules or rates of basic pay or allowances under subpart D
of part III of this title. The preceding sentence does not
apply to the establishment of the procedures, methodology, or
criteria used to establish such schedules, rates, or
allowances.
Sec. 1104. Delegation of authority for personnel management
(a) Subject to subsection (b)(3) of this section--
(1) the President may delegate, in whole or in
part, authority for personnel management functions,
including authority for competitive examinations, to
the Director of the Office of Personnel Management; and
(2) the Director may delegate, in whole or in part,
any function vested in or delegated to the Director,
including authority for competitive examinations
(except competitive examinations for administrative law
judges appointed under section 3105 of this title, the
cost of which examinations shall be reimbursed by
payments from the agencies employing such judges to the
revolving fund established under section 1304(e)), to
the heads of agencies in the executive branch and other
agencies employing persons in the competitive service.
(b)(1) The Office shall establish standards which shall
apply to the activities of the Office or any other agency under
authority delegated under subsection (a) of this section.
(2) The Office shall establish and maintain an oversight
program to ensure that activities under any authority delegated
under subsection (a) of this section are in accordance with the
merit system principles and the standards established under
paragraph (1) of this subsection.
(3) Nothing in subsection (a) of this section shall be
construed as affecting the responsibility of the Director to
prescribe regulations and to ensure compliance with the civil
service laws, rules, and regulations.
(4) \1\ At the request of the head of an agency to
whom a function has been delegated under subsection
(a)(2), the Office may provide assistance to the agency
in performing such function. Such assistance shall, to
the extent determined appropriate by the Director of
the Office, be performed on a reimbursable basis
through the revolving fund established under section
1304(e).
---------------------------------------------------------------------------
\1\ So in original. The margin of this paragraph probably should be
set full measure.
---------------------------------------------------------------------------
(c) If the Office makes a written finding, on the basis of
information obtained under the program established under
subsection (b)(2) of this section or otherwise, that any action
taken by an agency pursuant to authority delegated under
subsection (a)(2) of this section is contrary to any law, rule,
or regulation, or is contrary to any standard established under
subsection (b)(1) of this section, the agency involved shall
take any corrective action the Office may require.
Sec. 1105. Administrative procedure
Subject to section 1103(b) of this title, in the exercise
of the functions assigned under this chapter, the Director
shall be subject to subsections (b), (c), and (d) of section
553 of this title, notwithstanding subsection (a) of such
section 553.
CHAPTER 12--MERIT SYSTEMS PROTECTION BOARD, OFFICE OF SPECIAL COUNSEL,
AND EMPLOYEE RIGHT OF ACTION
SUBCHAPTER I--MERIT SYSTEMS PROTECTION BOARD
Sec.\1\ 1201. Appointment of members of the Merit Systems Protection
Board.
Sec. 1202. Term of office; filling vacancies; removal.
Sec. 1203. Chairman; Vice Chairman.
Sec. 1204. Powers and functions of the Merit Systems Protection Board.
Sec. 1205. Transmittal of information to Congress.
Sec. 1206. Annual report.
Sec. 1207. [Repealed.]
Sec. 1208. [Repealed.]
SUBCHAPTER II--OFFICE OF SPECIAL COUNSEL
Sec. 1211. Establishment.
Sec. 1212. Powers and functions of the Office of Special Counsel.
Sec. 1213. Provisions relating to disclosures of violations of law,
gross mismanagement, and certain other matters.
Sec. 1214. Investigation of prohibited personnel practices; corrective
action.
Sec. 1215. Disciplinary action.
Sec. 1216. Other matters within the jurisdiction of the Office of
Special Counsel.
Sec. 1217. Transmittal of information to Congress.
Sec. 1218. Annual report.
Sec. 1219. Public information.
SUBCHAPTER III--INDIVIDUAL RIGHT OF ACTION IN CERTAIN REPRISAL CASES
Sec. 1221. Individual right of action in certain reprisal cases.
Sec. 1222. Availability of other remedies.
SUBCHAPTER I--MERIT SYSTEMS PROTECTION BOARD
---------------------------------------------------------------------------
\1\ This table of sections does not conform to the style generally
followed in title 5.
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Sec. 1201. Appointment of members of the Merit Systems Protection Board
The Merit Systems Protection Board is composed of 3 members
appointed by the President, by and with the advice and consent
of the Senate, not more than 2 of whom may be adherents of the
same political party. The members of the Board shall be
individuals who, by demonstrated ability, background, training,
or experience are especially qualified to carry out the
functions of the Board. No member of the Board may hold another
office or position in the Government of the United States,
except as otherwise provided by law or at the direction of the
President. The Board shall have an official seal which shall be
judicially noticed. The Board shall have its principal office
in the District of Columbia and may have field offices in other
appropriate locations.
Sec. 1202. Term of office; filling vacancies; removal
(a) The term of office of each member of the Merit Systems
Protection Board is 7 years.
(b) A member appointed to fill a vacancy occurring before
the end of a term of office of the member's predecessor serves
for the remainder of that term. Any appointment to fill a
vacancy is subject to the requirements of section 1201. Any new
member serving only a portion of a seven-year term in office
may continue to serve until a successor is appointed and has
qualified, except that such member may not continue to serve
for more than one year after the date on which the term of the
member would otherwise expire, unless reappointed.
(c) Any member appointed for a 7-year term may not be
reappointed to any following term but may continue to serve
beyond the expiration of the term until a successor is
appointed and has qualified, except that such member may not
continue to serve for more than one year after the date on
which the term of the member would otherwise expire under this
section.
(d) Any member may be removed by the President only for
inefficiency, neglect of duty, or malfeasance in office.
Sec. 1203. Chairman; Vice Chairman
(a) The President shall from time to time appoint, by and
with the advice and consent of the Senate, one of the members
of the Merit Systems Protection Board as the Chairman of the
Board. The Chairman is the chief executive and administrative
officer of the Board.
(b) The President shall from time to time designate one of
the members of the Board as Vice Chairman of the Board. During
the absence or disability of the Chairman, or when the office
of Chairman is vacant, the Vice Chairman shall perform the
functions vested in the Chairman.
(c) During the absence or disability of both the Chairman
and the Vice Chairman, or when the offices of Chairman and Vice
Chairman are vacant, the remaining Board member shall perform
the functions vested in the Chairman.
Sec. 1204. Powers and functions of the Merit Systems Protection Board
(a) The Merit Systems Protection Board shall--
(1) hear, adjudicate, or provide for the hearing or
adjudication, of all matters within the jurisdiction of
the Board under this title, chapter 43 of title 38, or
any other law, rule, or regulation, and, subject to
otherwise applicable provisions of law, take final
action on any such matter;
(2) order any Federal agency or employee to comply
with any order or decision issued by the Board under
the authority granted under paragraph (1) of this
subsection and enforce compliance with any such order;
(3) conduct, from time to time, special studies
relating to the civil service and to other merit
systems in the executive branch, and report to the
President and to the Congress as to whether the public
interest in a civil service free of prohibited
personnel practices is being adequately protected; and
(4) review, as provided in subsection (f), rules
and regulations of the Office of Personnel Management.
(b)(1) Any member of the Merit Systems Protection Board,
any administrative law judge appointed by the Board under
section 3105 of this title, and any employee of the Board
designated by the Board may administer oaths, examine
witnesses, take depositions, and receive evidence.
(2) Any member of the Board, any administrative law judge
appointed by the Board under section 3105, and any employee of
the Board designated by the Board may, with respect to any
individual--
(A) issue subpoenas requiring the attendance and
presentation of testimony of any such individual, and
the production of documentary or other evidence from
any place in the United States, any territory or
possession of the United States, the Commonwealth of
Puerto Rico, or the District of Columbia; and
(B) order the taking of depositions from, and
responses to written interrogatories by, any such
individual.
(3) Witnesses (whether appearing voluntarily or under
subpoena) shall be paid the same fee and mileage allowances
which are paid subpoenaed witnesses in the courts of the United
States.
(c) In the case of contumacy or failure to obey a subpoena
issued under subsection (b)(2)(A) or section 1214(b), upon
application by the Board, the United States district court for
the district in which the person to whom the subpoena is
addressed resides or is served may issue an order requiring
such person to appear at any designated place to testify or to
produce documentary or other evidence. Any failure to obey the
order of the court may be punished by the court as a contempt
thereof.
(d) A subpoena referred to in subsection (b)(2)(A) may, in
the case of any individual outside the territorial jurisdiction
of any court of the United States, be served in such manner as
the Federal Rules of Civil Procedure prescribe for service of a
subpoena in a foreign country. To the extent that the courts of
the United States can assert jurisdiction over such individual,
the United States District Court for the District of Columbia
shall have the same jurisdiction to take any action respecting
compliance under this subsection by such individual that such
court would have if such individual were personally within the
jurisdiction of such court.
(e)(1)(A) In any proceeding under subsection (a)(1), any
member of the Board may request from the Director of the Office
of Personnel Management an advisory opinion concerning the
interpretation of any rule, regulation, or other policy
directive promulgated by the Office of Personnel Management.
(B)(i) The Merit Systems Protection Board may, during an
investigation by the Office of Special Counsel or during the
pendency of any proceeding before the Board, issue any order
which may be necessary to protect a witness or other individual
from harassment, except that an agency (other than the Office
of Special Counsel) may not request any such order with regard
to an investigation by the Office of Special Counsel from the
Board during such investigation.
(ii) An order issued under this subparagraph may be
enforced in the same manner as provided for under paragraph (2)
with respect to any order under subsection (a)(2).
(2)(A) In enforcing compliance with any order under
subsection (a)(2), the Board may order that any employee
charged with complying with such order, other than an employee
appointed by the President by and with the advice and consent
of the Senate, shall not be entitled to receive payment for
service as an employee during any period that the order has not
been complied with. The Board shall certify to the Comptroller
General of the United States that such an order has been issued
and no payment shall be made out of the Treasury of the United
States for any service specified in such order.
(B) The Board shall prescribe regulations under which any
employee who is aggrieved by the failure of any other employee
to comply with an order of the Board may petition the Board to
exercise its authority under subparagraph (A).
(3) In carrying out any study under subsection (a)(3), the
Board shall make such inquiries as may be necessary and, unless
otherwise prohibited by law, shall have access to personnel
records or information collected by the Office of Personnel
Management and may require additional reports from other
agencies as needed.
(f)(1) At any time after the effective date of any rule or
regulation issued by the Director of the Office of Personnel
Management in carrying out functions under section 1103, the
Board shall review any provision of such rule or regulation--
(A) on its own motion;
(B) on the granting by the Board, in its sole
discretion, of any petition for such review filed with
the Board by any interested person, after consideration
of the petition by the Board; or
(C) on the filing of a written complaint by the
Special Counsel requesting such review.
(2) In reviewing any provision of any rule or regulation
pursuant to this subsection, the Board shall declare such
provision--
(A) invalid on its face, if the Board determines
that such provision would, if implemented by any
agency, on its face, require any employee to violate
section 2302(b); or
(B) invalidly implemented by any agency, if the
Board determines that such provision, as it has been
implemented by the agency through any personnel action
taken by the agency or through any policy adopted by
the agency in conformity with such provision, has
required any employee to violate section 2302(b).
(3) The Director of the Office of Personnel Management, and
the head of any agency implementing any provision of any rule
or regulation under review pursuant to this subsection, shall
have the right to participate in such review.
(4) The Board shall require any agency--
(A) to cease compliance with any provisions of any
rule or regulation which the Board declares under this
subsection to be invalid on its face; and
(B) to correct any invalid implementation by the
agency of any provision of any rule or regulation which
the Board declares under this subsection to have been
invalidly implemented by the agency.
(g) The Board may delegate the performance of any of its
administrative functions under this title to any employee of
the Board.
(h) The Board shall have the authority to prescribe such
regulations as may be necessary for the performance of its
functions. The Board shall not issue advisory opinions. All
regulations of the Board shall be published in the Federal
Register.
(i) Except as provided in section 518 of title 28, relating
to litigation before the Supreme Court, attorneys designated by
the Chairman of the Board may appear for the Board, and
represent the Board, in any civil action brought in connection
with any function carried out by the Board pursuant to this
title or as otherwise authorized by law.
(j) The Chairman of the Board may appoint such personnel as
may be necessary to perform the functions of the Board. Any
appointment made under this subsection shall comply with the
provisions of this title, except that such appointment shall
not be subject to the approval or supervision of the Office of
Personnel Management or the Executive Office of the President
(other than approval required under section 3324 or subchapter
VIII of chapter 33).
(k) The Board shall prepare and submit to the President,
and, at the same time, to the appropriate committees of
Congress, an annual budget of the expenses and other items
relating to the Board which shall, as revised, be included as a
separate item in the budget required to be transmitted to the
Congress under section 1105 of title 31.
(l) The Board shall submit to the President, and, at the
same time, to each House of the Congress, any legislative
recommendations of the Board relating to any of its functions
under this title.
(m)(1) Except as provided in paragraph (2) of this
subsection, the Board, or an administrative law judge or other
employee of the Board designated to hear a case arising under
section 1215, may require payment by the agency involved of
reasonable attorney fees incurred by an employee or applicant
for employment if the employee or applicant is the prevailing
party and the Board, administrative law judge, or other
employee (as the case may be) determines that payment by the
agency is warranted in the interest of justice, including any
case in which a prohibited personnel practice was engaged in by
the agency or any case in which the agency's action was clearly
without merit.
(2) If an employee or applicant for employment is the
prevailing party of a case arising under section 1215 and the
decision is based on a finding of discrimination prohibited
under section 2302(b)(1) of this title, the payment of attorney
fees shall be in accordance with the standards prescribed under
section 706(k) of the Civil Rights Act of 1964 (42 U.S.C.
2000e-5(k)).
Sec. 1205. Transmittal of information to Congress
Notwithstanding any other provision of law or any rule,
regulation or policy directive, any member of the Board, or any
employee of the Board designated by the Board, may transmit to
the Congress on the request of any committee or subcommittee
thereof, by report, testimony, or otherwise, information and
views on functions, responsibilities, or other matters relating
to the Board, without review, clearance, or approval by any
other administrative authority.
Sec. 1206. Annual report
The Board shall submit an annual report to the President
and the Congress on its activities, which shall include a
description of significant actions taken by the Board to carry
out its functions under this title. The report shall also
review the significant actions of the Office of Personnel
Management, including an analysis of whether the actions of the
Office of Personnel Management are in accord with merit system
principles and free from prohibited personnel practices.
[Sec. Sec. 1207, 1208. Repealed. Pub. L. 101-12, Sec. 3(a)(8), Apr. 10,
1989, 103 Stat. 18.]
SUBCHAPTER II--OFFICE OF SPECIAL COUNSEL
Sec. 1211. Establishment
(a) There is established the Office of Special Counsel,
which shall be headed by the Special Counsel. The Office shall
have an official seal which shall be judicially noticed. The
Office shall have its principal office in the District of
Columbia and shall have field offices in other appropriate
locations.
(b) The Special Counsel shall be appointed by the
President, by and with the advice and consent of the Senate,
for a term of 5 years. The Special Counsel may continue to
serve beyond the expiration of the term until a successor is
appointed and has qualified, except that the Special Counsel
may not continue to serve for more than one year after the date
on which the term of the Special Counsel would otherwise expire
under this subsection. The Special Counsel shall be an attorney
who, by demonstrated ability, background, training, or
experience, is especially qualified to carry out the functions
of the position. A Special Counsel appointed to fill a vacancy
occurring before the end of a term of office of the Special
Counsel's precedessor serves for the remainder of the term. The
Special Counsel may be removed by the President only for
inefficiency, neglect of duty, or malfeasance in office. The
Special Counsel may not hold another office or position in the
Government of the United States, except as otherwise provided
by law or at the direction of the President.
Sec. 1212. Powers and functions of the Office of Special Counsel
(a) The Office of Special Counsel shall--
(1) in accordance with section 1214(a) and other
applicable provisions of this subchapter, protect
employees, former employees, and applicants for
employment from prohibited personnel practices;
(2) receive and investigate allegations of
prohibited personnel practices, and, where
appropriate--
(A) bring petitions for stays, and
petitions for corrective action, under section
1214; and
(B) file a complaint or make
recommendations for disciplinary action under
section 1215;
(3) receive, review, and, where appropriate,
forward to the Attorney General or an agency head under
section 1213, disclosures of violations of any law,
rule, or regulation, or gross mismanagement, a gross
waste of funds, an abuse of authority, or a substantial
and specific danger to public health or safety;
(4) review rules and regulations issued by the
Director of the Office of Personnel Management in
carrying out functions under section 1103 and, where
the Special Counsel finds that any such rule or
regulation would, on its face or as implemented,
require the commission of a prohibited personnel
practice, file a written complaint with the Board; and
(5) investigate and, where appropriate, bring
actions concerning allegations of violations of other
laws within the jurisdiction of the Office of Special
Counsel (as referred to in section 1216).
(b)(1) The Special Counsel and any employee of the Office
of Special Counsel designated by the Special Counsel may
administer oaths, examine witnesses, take depositions, and
receive evidence.
(2) The Special Counsel may--
(A) issue subpoenas; and
(B) order the taking of depositions and order
responses to written interrogatories;
in the same manner as provided under section 1204.
(3)(A) In the case of contumacy or failure to obey a
subpoena issued under paragraph (2)(A), the Special Counsel may
apply to the Merit Systems Protection Board to enforce the
subpoena in court pursuant to section 1204(c).
(B) A subpoena under paragraph (2)(A) may, in the case of
any individual outside the territorial jurisdiction of any
court of the United States, be served in the manner referred to
in subsection (d) of section 1204, and the United States
District Court for the District of Columbia may, with respect
to any such individual, compel compliance in accordance with
such subsection.
(4) Witnesses (whether appearing voluntarily or under
subpoena) shall be paid the same fee and mileage allowances
which are paid subpoenaed witnesses in the courts of the United
States.
(c)(1) Except as provided in paragraph (2), the Special
Counsel may as a matter of right intervene or otherwise
participate in any proceeding before the Merit Systems
Protection Board, except that the Special Counsel shall comply
with the rules of the Board.
(2) The Special Counsel may not intervene in an action
brought by an individual under section 1221, or in an appeal
brought by an individual under section 7701, without the
consent of such individual.
(d)(1) The Special Counsel may appoint the legal,
administrative, and support personnel necessary to perform the
functions of the Special Counsel.
(2) Any appointment made under this subsection shall be
made in accordance with the provisions of this title, except
that such appointment shall not be subject to the approval or
supervision of the Office of Personnel Management or the
Executive Office of the President (other than approval required
under section 3324 or subchapter VIII of chapter 33).
(e) The Special Counsel may prescribe such regulations as
may be necessary to perform the functions of the Special
Counsel. Such regulations shall be published in the Federal
Register.
(f) The Special Counsel may not issue any advisory opinion
concerning any law, rule, or regulation (other than an advisory
opinion concerning chapter 15 or subchapter III of chapter 73).
(g)(1) The Special Counsel may not respond to any inquiry
or disclose any information from or about any person making an
allegation under section 1214(a), except in accordance with the
provisions of section 552a of title 5, United States Code, or
as required by any other applicable Federal law.
(2) Notwithstanding the exception under paragraph (1), the
Special Counsel may not respond to any inquiry concerning an
evaluation of the work performance, ability, aptitude, general
qualifications, character, loyalty, or suitability for any
personnel action of any person described in paragraph (1)--
(A) unless the consent of the individual as to whom
the information pertains is obtained in advance; or
(B) except upon request of an agency which requires
such information in order to make a determination
concerning an individual's having access to the
information unauthorized disclosure of which could be
expected to cause exceptionally grave damage to the
national security.
Sec. 1213. Provisions relating to disclosures of violations of law,
gross mismanagement, and certain other matters
(a) This section applies with respect to--
(1) any disclosure of information by an employee,
former employee, or applicant for employment which the
employee, former employee, or applicant reasonably
believes evidences--
(A) a violation of any law, rule, or
regulation; or
(B) gross mismanagement, a gross waste of
funds, an abuse of authority, or a substantial
and specific danger to public health or safety;
if such disclosure is not specifically prohibited by
law and if such information is not specifically
required by Executive order to be kept secret in the
interest of national defense or the conduct of foreign
affairs; and
(2) any disclosure by an employee, former employee,
or applicant for employment to the Special Counsel or
to the Inspector General of an agency or another
employee designated by the head of the agency to
receive such disclosures of information which the
employee, former employee, or applicant reasonably
believes evidences--
(A) a violation of any law, rule, or
regulation; or
(B) gross mismanagement, a gross waste of
funds, an abuse of authority, or a substantial
and specific danger to public health or safety.
(b) Whenever the Special Counsel receives information of a
type described in subsection (a) of this section, the Special
Counsel shall review such information and, within 15 days after
receiving the information, determine whether there is a
substantial likelihood that the information discloses a
violation of any law, rule, or regulation, or gross
mismanagement, gross waste of funds, abuse of authority, or
substantial and specific danger to public health and safety.
(c)(1) Subject to paragraph (2), if the Special Counsel
makes a positive determination under subsection (b) of this
section, the Special Counsel shall promptly transmit the
information with respect to which the determination was made to
the appropriate agency head and require that the agency head--
(A) conduct an investigation with respect to the
information and any related matters transmitted by the
Special Counsel to the agency head; and
(B) submit a written report setting forth the
findings of the agency head within 60 days after the
date on which the information is transmitted to the
agency head or within any longer period of time agreed
to in writing by the Special Counsel.
(2) The Special Counsel may require an agency head to
conduct an investigation and submit a written report under
paragraph (1) only if the information was transmitted to the
Special Counsel by--
(A) an employee, former employee, or applicant for
employment in the agency which the information
concerns; or
(B) an employee who obtained the information in
connection with the performance of the employee's
duties and responsibilities.
(d) Any report required under subsection (c) shall be
reviewed and signed by the head of the agency and shall
include--
(1) a summary of the information with respect to
which the investigation was initiated;
(2) a description of the conduct of the
investigation;
(3) a summary of any evidence obtained from the
investigation;
(4) a listing of any violation or apparent
violation of any law, rule, or regulation; and
(5) a description of any action taken or planned as
a result of the investigation, such as--
(A) changes in agency rules, regulations,
or practices;
(B) the restoration of any aggrieved
employee;
(C) disciplinary action against any
employee; and
(D) referral to the Attorney General of any
evidence of a criminal violation.
(e)(1) Any such report shall be submitted to the Special
Counsel, and the Special Counsel shall transmit a copy to the
complainant, except as provided under subsection (f) of this
section. The complainant may submit comments to the Special
Counsel on the agency report within 15 days of having received
a copy of the report.
(2) Upon receipt of any report of the head of an agency
required under subsection (c) of this section, the Special
Counsel shall review the report and determine whether--
(A) the findings of the head of the agency appear
reasonable; and
(B) the report of the agency under subsection
(c)(1) of this section contains the information
required under subsection (d) of this section.
(3) The Special Counsel shall transmit any agency report
received pursuant to subsection (c) of this section, any
comments provided by the complainant pursuant to subsection
(e)(1), and any appropriate comments or recommendations by the
Special Counsel to the President and the congressional
committees with jurisdiction over the agency which the
disclosure involves.
(4) Whenever the Special Counsel does not receive the
report of the agency within the time prescribed in subsection
(c)(2) of this section, the Special Counsel shall transmit a
copy of the information which was transmitted to the agency
head to the President and the congressional committees with
jurisdiction over the agency which the disclosure involves
together with a statement noting the failure of the head of the
agency to file the required report.
(f) In any case in which evidence of a criminal violation
obtained by an agency in an investigation under subsection (c)
of this section is referred to the Attorney General--
(1) the report shall not be transmitted to the
complainant; and
(2) the agency shall notify the Office of Personnel
Management and the Office of Management and Budget of
the referral.
(g)(1) If the Special Counsel receives information of a
type described in subsection (a) from an individual other than
an individual described in subparagraph (A) or (B) of
subsection (c)(2), the Special Counsel may transmit the
information to the head of the agency which the information
concerns. The head of such agency shall, within a reasonable
time after the information is transmitted, inform the Special
Counsel in writing of what action has been or is being taken
and when such action shall be completed. The Special Counsel
shall inform the individual of the report of the agency head.
If the Special Counsel does not transmit the information to the
head of the agency, the Special Counsel shall return any
documents and other matter provided by the individual who made
the disclosure.
(2) If the Special Counsel receives information of a type
described in subsection (a) from an individual described in
subparagraph (A) or (B) of subsection (c)(2), but does not make
a positive determination under subsection (b), the Special
Counsel may transmit the information to the head of the agency
which the information concerns, except that the information may
not be transmitted to the head of the agency without the
consent of the individual. The head of such agency shall,
within a reasonable time after the information is transmitted,
inform the Special Counsel in writing of what action has been
or is being taken and when such action will be completed. The
Special Counsel shall inform the individual of the report of
the agency head.
(3) If the Special Counsel does not transmit the
information to the head of the agency under paragraph (2), the
Special Counsel shall--
(A) return any documents and other matter provided
by the individual who made the disclosure; and
(B) inform the individual of--
(i) the reasons why the disclosure may not
be further acted on under this chapter; and
(ii) other offices available for receiving
disclosures, should the individual wish to
pursue the matter further.
(h) The identity of any individual who makes a disclosure
described in subsection (a) may not be disclosed by the Special
Counsel without such individual's consent unless the Special
Counsel determines that the disclosure of the individual's
identity is necessary because of an imminent danger to public
health or safety or imminent violation of any criminal law.
(i) Except as specifically authorized under this section,
the provisions of this section shall not be considered to
authorize disclosure of any information by any agency or any
person which is--
(1) specifically prohibited from disclosure by any
other provision of law; or
(2) specifically required by Executive order to be
kept secret in the interest of national defense or the
conduct of foreign affairs.
(j) With respect to any disclosure of information described
in subsection (a) which involves foreign intelligence or
counterintelligence information, if the disclosure is
specifically prohibited by law or by Executive order, the
Special Counsel shall transmit such information to the National
Security Advisor, the Permanent Select Committee on
Intelligence of the House of Representatives, and the Select
Committee on Intelligence of the Senate.
Sec. 1214. Investigation of prohibited personnel practices; corrective
action
(a)(1)(A) The Special Counsel shall receive any allegation
of a prohibited personnel practice and shall investigate the
allegation to the extent necessary to determine whether there
are reasonable grounds to believe that a prohibited personnel
practice has occurred, exists, or is to be taken.
(B) Within 15 days after the date of receiving an
allegation of a prohibited personnel practice under paragraph
(1), the Special Counsel shall provide written notice to the
person who made the allegation that--
(i) the allegation has been received by the Special
Counsel; and
(ii) shall include the name of a person at the
Office of Special Counsel who shall serve as a contact
with the person making the allegation.
(C) Unless an investigation is terminated under paragraph
(2), the Special Counsel shall--
(i) within 90 days after notice is provided under
subparagraph (B), notify the person who made the
allegation of the status of the investigation and any
action taken by the Office of the Special Counsel since
the filing of the allegation;
(ii) notify such person of the status of the
investigation and any action taken by the Office of the
Special Counsel since the last notice, at least every
60 days after notice is given under clause (i); and
(iii) notify such person of the status of the
investigation and any action taken by the Special
Counsel at such time as determined appropriate by the
Special Counsel.
(D) No later than 10 days before the Special Counsel
terminates any investigation of a prohibited personnel
practice, the Special Counsel shall provide a written status
report to the person who made the allegation of the proposed
findings of fact and legal conclusions. The person may submit
written comments about the report to the Special Counsel. The
Special Counsel shall not be required to provide a subsequent
written status report under this subparagraph after the
submission of such written comments.
(2)(A) If the Special Counsel terminates any investigation
under paragraph (1), the Special Counsel shall prepare and
transmit to any person on whose allegation the investigation
was initiated a written statement notifying the person of--
(i) the termination of the investigation;
(ii) a summary of relevant facts ascertained by the
Special Counsel, including the facts that support, and
the facts that do not support, the allegations of such
person;
(iii) the reasons for terminating the
investigation; and
(iv) a response to any comments submitted under
paragraph (1)(D).
(B) A written statement under subparagraph (A) may not be
admissible as evidence in any judicial or administrative
proceeding, without the consent of the person who received such
statement under subparagraph (A).
(3) Except in a case in which an employee, former employee,
or applicant for employment has the right to appeal directly to
the Merit Systems Protection Board under any law, rule, or
regulation, any such employee, former employee, or applicant
shall seek corrective action from the Special Counsel before
seeking corrective action from the Board. An employee, former
employee, or applicant for employment may seek corrective
action from the Board under section 1221, if such employee,
former employee, or applicant seeks corrective action for a
prohibited personnel practice described in section 2302(b)(8)
from the Special Counsel and--
(A)(i) the Special Counsel notifies such employee,
former employee, or applicant that an investigation
concerning such employee, former employee, or applicant
has been terminated; and
(ii) no more than 60 days have elapsed since
notification was provided to such employee, former
employee, or applicant for employment that such
investigation was terminated; or
(B) 120 days after seeking corrective action from
the Special Counsel, such employee, former employee, or
applicant has not been notified by the Special Counsel
that the Special Counsel shall seek corrective action
on behalf of such employee, former employee, or
applicant.
(4) If an employee, former employee, or applicant seeks a
corrective action from the Board under section 1221, pursuant
to the provisions of paragraph (3)(B), the Special Counsel may
continue to seek corrective action personal to such employee,
former employee, or applicant only with the consent of such
employee, former employee, or applicant.
(5) In addition to any authority granted under paragraph
(1), the Special Counsel may, in the absence of an allegation,
conduct an investigation for the purpose of determining whether
there are reasonable grounds to believe that a prohibited
personnel practice (or a pattern of prohibited personnel
practices) has occurred, exists, or is to be taken.
(b)(1)(A)(i) The Special Counsel may request any member of
the Merit Systems Protection Board to order a stay of any
personnel action for 45 days if the Special Counsel determines
that there are reasonable grounds to believe that the personnel
action was taken, or is to be taken, as a result of a
prohibited personnel practice.
(ii) Any member of the Board requested by the Special
Counsel to order a stay under clause (i) shall order such stay
unless the member determines that, under the facts and
circumstances involved, such a stay would not be appropriate.
(iii) Unless denied under clause (ii), any stay under this
subparagraph shall be granted, within 3 calender days
(excluding Saturdays, Sundays, and legal holidays) after the
date of the request for the stay by the Special Counsel.
(B) The Board may extend the period of any stay granted
under subparagraph (A) for any period which the Board considers
appropriate.
(C) The Board shall allow any agency which is the subject
of a stay to comment to the Board on any extension of stay
proposed under subparagraph (B)
(D) A stay may be terminated by the Board at any time,
except that a stay may not be terminated by the Board--
(i) on its own motion or on the motion of an
agency, unless notice and opportunity for oral or
written comments are first provided to the Special
Counsel and the individual on whose behalf the stay was
ordered; or
(ii) on motion of the Special Counsel, unless
notice and opportunity for oral or written comments are
first provided to the individual on whose behalf the
stay was ordered.
(2) \1\ (A)(i) Except as provided under clause (ii), no
later than 240 days after the date of receiving an allegation
of a prohibited personnel practice under paragraph (1), the
Special Counsel shall make a determination whether there are
reasonable grounds to believe that a prohibited personnel
practice has occurred, exists, or is to be taken.
---------------------------------------------------------------------------
\1\ The amendment made by section 3(d) of Public Law 103-424
(adding a new subparagraph (A)) was executed in a manner reflecting its
probable intent.
---------------------------------------------------------------------------
(ii) If the Special Counsel is unable to make the required
determination within the 240-day period specified under clause
(i) and the person submitting the allegation of a prohibited
personnel practice agrees to an extension of time, the
determination shall be made within such additional period of
time as shall be agreed upon between the Special Counsel and
the person submitting the allegation.
(B) If, in connection with any investigation, the Special
Counsel determines that there are reasonable grounds to believe
that a prohibited personnel practice has occurred, exists, or
is to be taken which requires corrective action, the Special
Counsel shall report the determination together with any
findings or recommendations to the Board, the agency involved
and to the Office of Personnel Management, and may report such
determination, findings and recommendations to the President.
The Special Counsel may include in the report recommendations
for corrective action to be taken.
(C) If, after a reasonable period of time, the agency does
not act to correct the prohibited personnel practice, the
Special Counsel may petition the Board for corrective action.
(D) If the Special Counsel finds, in consultation with the
individual subject to the prohibited personnel practice, that
the agency has acted to correct the prohibited personnel
practice, the Special Counsel shall file such finding with the
Board, together with any written comments which the individual
may provide.
(E) \1\A determination by the Special
Counsel under this paragraph shall not be cited
or referred to in any proceeding under this
paragraph or any other administrative or
judicial proceeding for any purpose, without
the consent of the person submitting the
allegation of a prohibited personnel practice.
---------------------------------------------------------------------------
\1\ So in original. The margin of this subparagraph probably should
be set full measure.
---------------------------------------------------------------------------
(3) Whenever the Special Counsel petitions the Board for
corrective action, the Board shall provide an opportunity for--
(A) oral or written comments by the Special
Counsel, the agency involved, and the Office of
Personnel Management; and
(B) written comments by any individual who alleges
to be the subject of the prohibited personnel practice.
(4)(A) The Board shall order such corrective action as the
Board considers appropriate, if the Board determines that the
Special Counsel has demonstrated that a prohibited personnel
practice, other than one described in section 2302(b)(8), has
occurred, exists, or is to be taken.
(B)(i) Subject to the provisions of clause (ii), in any
case involving an alleged prohibited personnel practice as
described under section 2302(b)(8), the Board shall order such
corrective action as the Board considers appropriate if the
Special Counsel has demonstrated that a disclosure described
under section 2302(b)(8) was a contributing factor in the
personnel action which was taken or is to be taken against the
individual.
(ii) Corrective action under clause (i) may not be ordered
if the agency demonstrates by clear and convincing evidence
that it would have taken the same personnel action in the
absence of such disclosure.
(c)(1) Judicial review of any final order or decision of
the Board under this section may be obtained by any employee,
former employee, or applicant for employment adversely affected
by such order or decision.
(2) A petition for review under this subsection shall be
filed with such court, and within such time, as provided for
under section 7703(b).
(d)(1) If, in connection with any investigation under this
subchapter, the Special Counsel determines that there is
reasonable cause to believe that a criminal violation has
occurred, the Special Counsel shall report the determination to
the Attorney General and to the head of the agency involved,
and shall submit a copy of the report to the Director of the
Office of Personnel Management and the Director of the Office
of Management and Budget.
(2) In any case in which the Special Counsel determines
that there are reasonable grounds to believe that a prohibited
personnel practice has occurred, exists, or is to be taken, the
Special Counsel shall proceed with any investigation or
proceeding unless--
(A) the alleged violation has been reported to the
Attorney General; and
(B) the Attorney General is pursuing an
investigation, in which case the Special Counsel, after
consultation with the Attorney General, has discretion
as to whether to proceed.
(e) If, in connection with any investigation under this
subchapter, the Special Counsel determines that there is
reasonable cause to believe that any violation of any law,
rule, or regulation has occurred other than one referred to in
subsection (b) or (d), the Special Counsel shall report such
violation to the head of the agency involved. The Special
Counsel shall require, within 30 days after the receipt of the
report by the agency, a certification by the head of the agency
which states--
(1) that the head of the agency has personally
reviewed the report; and
(2) what action has been or is to be taken, and
when the action will be completed.
(f) During any investigation initiated under this
subchapter, no disciplinary action shall be taken against any
employee for any alleged prohibited activity under
investigation or for any related activity without the approval
of the Special Counsel.
(g) If the Board orders corrective action under this
section, such corrective action may include--
(1) that the individual be placed, as nearly as
possible, in the position the individual would have
been in had the prohibited personnel practice not
occurred; and
(2) reimbursement for attorney's fees, back pay and
related benefits, medical costs incurred, travel
expenses, and any other reasonable and foreseeable
consequential damages.
Sec. 1215. Disciplinary action
(a)(1) Except as provided in subsection (b), if the Special
Counsel determines that disciplinary action should be taken
against any employee for having--
(A) committed a prohibited personnel practice,
(B) violated the provisions of any law, rule, or
regulation, or engaged in any other conduct within the
jurisdiction of the Special Counsel as described in
section 1216, or
(C) knowingly and willfully refused or failed to
comply with an order of the Merit Systems Protection
Board,
the Special Counsel shall prepare a written complaint against
the employee containing the Special Counsel's determination,
together with a statement of supporting facts, and present the
complaint and statement to the employee and the Board, in
accordance with this subsection.
(2) Any employee against whom a complaint has been
presented to the Merit Systems Protection Board under paragraph
(1) is entitled to--
(A) a reasonable time to answer orally and in
writing, and to furnish affidavits and other
documentary evidence in support of the answer;
(B) be represented by an attorney or other
representative;
(C) a hearing before the Board or an administrative
law judge appointed under section 3105 and designated
by the Board;
(D) have a transcript kept of any hearing under
subparagraph (C); and
(E) a written decision and reasons therefor at the
earliest practicable date, including a copy of any
final order imposing disciplinary action.
(3) A final order of the Board may impose disciplinary
action consisting of removal, reduction in grade, debarment
from Federal employment for a period not to exceed 5 years,
suspension, reprimand, or an assessment of a civil penalty not
to exceed $1,000.
(4) There may be no administrative appeal from an order of
the Board. An employee subject to a final order imposing
disciplinary action under this subsection may obtain judicial
review of the order by filing a petition therefor with such
court, and within such time, as provided for under section
7703(b).
(5) In the case of any State or local officer or employee
under chapter 15, the Board shall consider the case in
accordance with the provisions of such chapter.
(b) In the case of an employee in a confidential, policy-
making, policy-determining, or policy-advocating position
appointed by the President, by and with the advice and consent
of the Senate (other than an individual in the Foreign Service
of the United States), the complaint and statement referred to
in subsection (a)(1), together with any response of the
employee, shall be presented to the President for appropriate
action in lieu of being presented under subsection (a).
(c)(1) In the case of members of the uniformed services and
individuals employed by any person under contract with an
agency to provide goods or services, the Special Counsel may
transmit recommendations for disciplinary or other appropriate
action (including the evidence on which such recommendations
are based) to the head of the agency concerned.
(2) In any case in which the Special Counsel transmits
recommendations to an agency head under paragraph (1), the
agency head shall, within 60 days after receiving such
recommendations, transmit a report to the Special Counsel on
each recommendation and the action taken, or proposed to be
taken, with respect to each such recommendation.
Sec. 1216. Other matters within the jurisdiction of the Office of
Special Counsel
(a) In addition to the authority otherwise provided in this
chapter, the Special Counsel shall, except as provided in
subsection (b), conduct an investigation of any allegation
concerning--
(1) political activity prohibited under subchapter
III of chapter 73, relating to political activities by
Federal employees;
(2) political activity prohibited under chapter 15,
relating to political activities by certain State and
local officers and employees;
(3) arbitrary or capricious withholding of
information prohibited under section 552, except that
the Special Counsel shall make no investigation of any
withholding of foreign intelligence or
counterintelligence information the disclosure of which
is specifically prohibited by law or by Executive
order;
(4) activities prohibited by any civil service law,
rule, or regulation, including any activity relating to
political intrusion in personnel decisionmaking; and
(5) involvement by any employee in any prohibited
discrimination found by any court or appropriate
administrative authority to have occurred in the course
of any personnel action.
(b) The Special Counsel shall make no investigation of any
allegation of any prohibited activity referred to in subsection
(a)(5), if the Special Counsel determines that the allegation
may be resolved more appropriately under an administrative
appeals procedure.
(c) If the Special Counsel receives an allegation
concerning any matter under paragraph (1), (3), (4), or (5) of
subsection (a), the Special Counsel may investigate and seek
corrective action under section 1214 and disciplinary action
under section 1215 in the same way as if a prohibited personnel
practice were involved.
Sec. 1217. Transmittal of information to Congress
The Special Counsel or any employee of the Special Counsel
designated by the Special Counsel, shall transmit to the
Congress on the request of any committee or subcommittee
thereof, by report, testimony, or otherwise, information and
the Special Counsel's views on functions, responsibilities, or
other matters relating to the Office. Such information shall be
transmitted concurrently to the President and any other
appropriate agency in the executive branch.
Sec. 1218. Annual report
The Special Counsel shall submit an annual report to the
Congress on the activities of the Special Counsel, including
the number, types, and disposition of allegations of prohibited
personnel practices filed with it, investigations conducted by
it, cases in which it did not make a determination whether
there are reasonable grounds to believe that a prohibited
personnel practice has occurred, exists, or is to be taken
within the 240-day period specified in section
1214(b)(2)(A)(i), and actions initiated by it before the Merit
Systems Protection Board, as well as a description of the
recommendations and reports made by it to other agencies
pursuant to this subchapter, and the actions taken by the
agencies as a result of the reports or recommendations. The
report required by this section shall include whatever
recommendations for legislation or other action by Congress the
Special Counsel may consider appropriate.
Sec. 1219. Public information
(a) The Special Counsel shall maintain and make available
to the public--
(1) a list of noncriminal matters referred to heads
of agencies under subsection (c) of section 1213,
together with reports from heads of agencies under
subsection (c)(1)(B) of such section relating to such
matters;
(2) a list of matters referred to heads of agencies
under section 1215(c)(2);
(3) a list of matters referred to heads of agencies
under subsection (e) of section 1214, together with
certifications from heads of agencies under such
subsection; and
(4) reports from heads of agencies under section
1213(g)(1).
(b) The Special Counsel shall take steps to ensure that any
list or report made available to the public under this section
does not contain any information the disclosure of which is
prohibited by law or by Executive order requiring that
information be kept secret in the interest of national defense
or the conduct of foreign affairs.
SUBCHAPTER III--INDIVIDUAL RIGHT OF ACTION IN CERTAIN REPRISAL CASES
Sec. 1221. Individual right of action in certain reprisal cases
(a) Subject to the provisions of subsection (b) of this
section and subsection \1\ 1214(a)(3), an employee, former
employee, or applicant for employment may, with respect to any
personnel action taken, or proposed to be taken, against such
employee, former employee, or applicant for employment, as a
result of a prohibited personnel practice described in section
2302(b)(8), seek corrective action from the Merit Systems
Protection Board.
---------------------------------------------------------------------------
\1\ So in original. The word ``subsection'' probably should read
``section''.
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(b) This section may not be construed to prohibit any
employee, former employee, or applicant for employment from
seeking corrective action from the Merit Systems Protection
Board before seeking corrective action from the Special
Counsel, if such employee, former employee, or applicant for
employment has the right to appeal directly to the Board under
any law, rule, or regulation.
(c)(1) Any employee, former employee, or applicant for
employment seeking corrective action under subsection (a) may
request that the Board order a stay of the personnel action
involved.
(2) Any stay requested under paragraph (1) shall be granted
within 10 calendar days (excluding Saturdays, Sundays, and
legal holidays) after the date the request is made, if the
Board determines that such a stay would be appropriate.
(3)(A) The Board shall allow any agency which would be
subject to a stay under this subsection to comment to the Board
on such stay request.
(B) Except as provided in subparagraph (C), a stay granted
under this subsection shall remain in effect for such period as
the Board determines to be appropriate.
(C) The Board may modify or dissolve a stay under this
subsection at any time, if the Board determines that such a
modification or dissolution is appropriate.
(d)(1) At the request of an employee, former employee, or
applicant for employment seeking corrective action under
subsection (a), the Board shall issue a subpoena for the
attendance and testimony of any person or the production of
documentary or other evidence from any person if the Board
finds that the testimony or production requested is not unduly
burdensome and appears reasonably calculated to lead to the
discovery of admissible evidence.
(2) A subpoena under this subsection may be issued, and
shall be enforced, in the same manner as applies in the case of
subpoenas under section 1204.
(e)(1) Subject to the provisions of paragraph (2), in any
case involving an alleged prohibited personnel practice as
described under section 2302(b)(8), the Board shall order such
corrective action as the Board considers appropriate if the
employee, former employee, or applicant for employment has
demonstrated that a disclosure described under section
2302(b)(8) was a contributing factor in the personnel action
which was taken or is to be taken against such employee, former
employee, or applicant. The employee may demonstrate that the
disclosure was a contributing factor in the personnel action
through circumstantial evidence, such as evidence that--
(A) the official taking the personnel action knew
of the disclosure; and
(B) the personnel action occurred within a period
of time such that a reasonable person could conclude
that the disclosure was a contributing factor in the
personnel action.
(2) Corrective action under paragraph (1) may not be
ordered if the agency demonstrates by clear and convincing
evidence that it would have taken the same personnel action in
the absence of such disclosure.
(f)(1) A final order or decision shall be rendered by the
Board as soon as practicable after the commencement of any
proceeding under this section.
(2) A decision to terminate an investigation under
subchapter II may not be considered in any action or other
proceeding under this section.
(3) \1\ If, based on evidence presented to it under
this section, the Merit Systems Protection Board
determines that there is reason to believe that a
current employee may have committed a prohibited
personnel practice, the Board shall refer the matter to
the Special Counsel to investigate and take appropriate
action under section 1215.
---------------------------------------------------------------------------
\1\ So in original. The margin of this paragraph should probably be
set full measure.
---------------------------------------------------------------------------
(g)(1)(A) \2\ If the Board orders corrective action under
this section, such corrective action may include--
---------------------------------------------------------------------------
\2\ The amendment made by section 8(b) of Public Law 103-424
(adding a new paragraph (1)) was executed without indentation, in
accordance with its probable intent.
---------------------------------------------------------------------------
(i) that the individual be placed, as nearly as
possible, in the position the individual would have
been in had the prohibited personnel practice not
occurred; and
(ii) back pay and related benefits, medical costs
incurred, travel expenses, and any other reasonable and
foreseeable consequential changes.
(B) Corrective action shall include attorney's fees and
costs as provided for under paragraphs (2) and (3).
(2) If an employee, former employee, or applicant for
employment is the prevailing party before the Merit Systems
Protection Board, and the decision is based on a finding of a
prohibited personnel practice, the agency involved shall be
liable to the employee, former employee, or applicant for
reasonable attorney's fees and any other reasonable costs
incurred.
(3) If an employee, former employee, or applicant for
employment is the prevailing party in an appeal from the Merit
Systems Protection Board, the agency involved shall be liable
to the employee, former employee, or applicant for reasonable
attorney's fees and any other reasonable costs incurred,
regardless of the basis of the decision.
(h)(1) An employee, former employee, or applicant for
employment adversely affected or aggrieved by a final order or
decision of the Board under this section may obtain judicial
review of the order or decision.
(2) A petition for review under this subsection shall be
filed with such court, and within such time, as provided for
under section 7703(b).
(i) Subsections (a) though (h) shall apply in any
proceeding brought under section 7513(d) if, or to the extent
that, a prohibited personnel practice as defined in section
2302(b)(8) is alleged.
(j) In determining the appealability of any case involving
an allegation made by an individual under the provisions of
this chapter, neither the status of an individual under any
retirement system established under a Federal statute nor any
election made by such individual under any such system may be
taken into account.
Sec. 1222. Availability of other remedies
Except as provided in section 1221(i), nothing in this
chapter or chapter 23 shall be construed to limit any right or
remedy available under a provision of statute which is outside
of both this chapter and chapter 23.
CHAPTER 13--SPECIAL AUTHORITY
Sec.
1301. Rules.
1302. Regulations.
1303. Investigations; reports.
1304. Loyalty investigations; reports; revolving fund.
1305. Administrative law judges.
1306. Oaths to witnesses.
1307. Minutes.
[1308. Repealed.]
Sec. 1301. Rules
The Office of Personnel Management shall aid the President,
as he may request, in preparing the rules he prescribes under
this title for the administration of the competitive service.
Sec. 1302. Regulations
(a) The Office of Personnel Management, subject to the
rules prescribed by the President under this title for the
administration of the competitive service, shall prescribe
regulations for, control, supervise, and preserve the records
of, examinations for the competitive service.
(b) The Office shall prescribe and enforce regulations for
the administration of the provisions of this title, and
Executive orders issued in furtherance thereof, that implement
the Congressional policy that preference shall be given to
preference eligibles in certification for appointment, and in
appointment, reinstatement, reemployment, and retention, in the
competitive service in Executive agencies, permanent or
temporary, and in the government of the District of Columbia.
(c) The Office shall prescribe regulations for the
administration of the provisions of this title that implement
the Congressional policy that preference shall be given to
preference eligibles in certification for appointment, and in
appointment, reinstatement, reemployment, and retention, in the
excepted service in Executive agencies, permanent or temporary,
and in the government of the District of Columbia.
(d) The Office may prescribe reasonable procedure and
regulations for the administration of its functions under
chapter 15 of this title.
Sec. 1303. Investigations; reports
The Office of Personnel Management, Merit Systems
Protection Board, and Special Counsel may investigate and
report on matters concerning--
(1) the enforcement and effect of the rules
prescribed by the President under this title for the
administration of the competitive service and the
regulations prescribed by the Office of Personnel
Management under section 1302(a) of this title; and
(2) the action of an examiner, a board of
examiners, and other employees concerning the execution
of the provisions of this title that relate to the
administration of the competitive service.
Sec. 1304. Loyalty investigations; reports; revolving fund
(a) The Office of Personnel Management shall conduct the
investigations and issue the reports required by the following
statutes--
(1) sections 272b, 281b(e), and 290a of title 22;
(2) section 1874(c) of title 42; and
(3) section 1203(e) of title 6, District of
Columbia Code.
(b) When an investigation under subsection (a) of this
section develops data indicating that the loyalty of the
individual being investigated is questionable, the Office shall
refer the matter to the Federal Bureau of Investigation for a
full field investigation, a report of which shall be furnished
to the Office for its information and appropriate action.
(c) When the President considers it in the national
interest, he may have the investigations of a group or class,
which are required by subsection (a) of this section, made by
the Federal Bureau of Investigation rather than the Office.
(d) The investigation and report required by subsection (a)
of this section shall be made by the Federal Bureau of
Investigation rather than the Office for those specific
positions which the Secretary of State certifies are of a high
degree of importance or sensitivity.
(e)(1) A revolving fund is available, to the Office without
fiscal year limitation, for financing investigations, training,
and such other functions as the Office is authorized or
required to perform on a reimbursable basis, including
personnel management services performed at the request of
individual agencies (which would otherwise be the
responsibility of such agencies), or at the request of
nonappropriated fund instrumentalities. However, the functions
which may be financed in any fiscal year by the fund are
restricted to those functions which are covered by the budget
estimates submitted to the Congress for that fiscal year. To
the maximum extent feasible, each individual activity shall be
conducted generally on an actual cost basis over a reasonable
period of time.
(2) The capital of the fund consists of the aggregate of--
(A) appropriations made to provide capital for the
fund, which appropriations are hereby authorized, and
(B) the sum of the fair and reasonable value of
such supplies, equipment, and other assets as the
Office from time to time transfers to the fund
(including the amount of the unexpended balances of
appropriations or funds relating to activities the
financing of which is transferred to the fund) less the
amount of related liabilities, the amount of unpaid
obligations, and the value of accrued annual leave of
employees, which are attributable to the activities the
financing of which is transferred to the fund.
(3) The fund shall be credited with--
(A) advances and reimbursements from available
funds of the Office or other agencies, or from other
sources, for those services and supplies provided at
rates estimated by the Office as adequate to recover
expenses of operation (including provision for accrued
annual leave of employees and depreciation of
equipment); and
(B) receipts from sales or exchanges of property,
and payments for loss of or damage to property,
accounted for under the fund.
(4) Any unobligated and unexpended balances in the fund
which the Office determines to be in excess of amounts needed
for activities financed by the fund shall be deposited in the
Treasury of the United States as miscellaneous receipts.
(5) The Office shall prepare a business-type budget
providing full disclosure of the results of operations for each
of the functions performed by the Office and financed by the
fund, and such budget shall be transmitted to the Congress and
considered, in the manner prescribed by law for wholly owned
Government corporations.
(6) The Comptroller General of the United States shall, as
a result of his periodic reviews of the activities financed by
the fund, report and make such recommendations as he deems
appropriate to the Committee on Governmental Affairs of the
Senate and the Committee on Post Office and Civil Service of
the House of Representatives.
(f) An agency may use available appropriations to reimburse
the Office or the Federal Bureau of Investigation for the cost
of investigations, training, and functions performed for them
under this section, or to make advances toward their cost.
These advances and reimbursements shall be credited directly to
the applicable appropriations of the Office or the Federal
Bureau of Investigation.
(g) This section does not affect the responsibility of the
Federal Bureau of Investigation to investigate espionage,
sabotage, or subversive acts.
Sec. 1305. Administrative law judges
For the purpose of sections 3105, 3344, 4301(2)(D), and
5372 of this title and the provisions of section 5335(a)(B) of
this title that relate to administrative law judges, the Office
of Personnel Management may, and for the purpose of section
7521 of this title, the Merit Systems Protection Board may
investigate, prescribe regulations, appoint advisory committees
as necessary, recommend legislation, subpena witnesses and
records, and pay witness fees as established for the courts of
the United States.
Sec. 1306. Oaths to witnesses
The Director of the Office of Personnel Management and
authorized representatives of the Director may administer oaths
to witnesses in matters pending before the Office.
Sec. 1307. Minutes
The Civil Service Commission shall keep minutes of its
proceedings.
[Sec. 1308. Repealed. by P.L. 105-362, Sec. 1302(b), Nov. 10, 1998, 112
Stat. 3293.]
CHAPTER 15--POLITICAL ACTIVITY OF CERTAIN STATE AND LOCAL EMPLOYEES
Sec.
1501. Definitions.
1502. Influencing elections; taking part in political campaigns;
prohibitions; exceptions.
1503. Nonpartisan candidacies permitted.
1504. Investigations; notice of hearing.
1505. Hearings; adjudications; notice of determinations.
1506. Orders; withholding loans or grants; limitations.
1507. Subpenas and depositions.
1508. Judicial review.
Sec. 1501. Definitions
For the purpose of this chapter--
(1) ``State'' means a State or territory or
possession of the United States;
(2) ``State or local agency'' means the executive
branch of a State, municipality, or other political
subdivision of a State, or an agency or department
thereof;
(3) ``Federal agency'' means an Executive agency or
other agency of the United States, but does not include
a member bank of the Federal Reserve System; and
(4) ``State or local officer or employee'' means an
individual employed by a State or local agency whose
principal employment is in connection with an activity
which is financed in whole or in part by loans or
grants made by the United States or a Federal agency,
but does not include--
(A) an individual who exercises no
functions in connection with that activity; or
(B) an individual employed by an
educational or research institution,
establishment, agency, or system which is
supported in whole or in part by a State or
political subdivision thereof, or by a
recognized religious, philanthropic, or
cultural organization.
Sec. 1502. Influencing elections; taking part in political campaigns;
prohibitions; exceptions
(a) A State or local officer or employee may not--
(1) use his official authority or influence for the
purpose of interfering with or affecting the result of
an election or a nomination for office;
(2) directly or indirectly coerce, attempt to
coerce, command, or advise a State or local officer or
employee to pay, lend, or contribute anything of value
to a party, committee, organization, agency, or person
for political purposes; or
(3) be a candidate for elective office.
(b) A State or local officer or employee retains the right
to vote as he chooses and to express his opinions on political
subjects and candidates.
(c) Subsection (a)(3) of this section does not apply to--
(1) the Governor or Lieutenant Governor of a State
or an individual authorized by law to act as Governor;
(2) the mayor of a city;
(3) a duly elected head of an executive department
of a State or municipality who is not classified under
a State or municipal merit or civil-service system; or
(4) an individual holding elective office.
Sec. 1503. Nonpartisan candidacies permitted
Section 1502(a)(3) of this title does not prohibit any
State or local officer or employee from being a candidate in
any election if none of the candidates is to be nominated or
elected at such election as representing a party any of whose
candidates for Presidential elector received votes in the last
preceding election at which Presidential electors were
selected.
Sec. 1504. Investigations; notice of hearing
When a Federal agency charged with the duty of making a
loan or grant of funds of the United States for use in an
activity by a State or local officer or employee has reason to
believe that the officer or employee has violated section 1502
of this title, it shall report the matter to the Special
Counsel. On receipt of the report or on receipt of other
information which seems to the Special Counsel to warrant an
investigation, the Special Counsel shall investigate the report
and such other information and present his findings and any
charges based on such findings to the Merit Systems Protection
Board, which shall--
(1) fix a time and place for a hearing; and
(2) send, by registered or certified mail, to the
officer or employee charged with the violation and to
the State or local agency employing him a notice
setting forth a summary of the alleged violation and
giving the time and place of the hearing.
The hearing may not be held earlier than 10 days after the
mailing of the notice.
Sec. 1505. Hearings; adjudications; notice of determinations
Either the State or local officer or employee or the State
or local agency employing him, or both, are entitled to appear
with counsel at the hearing under section 1504 of this title,
and be heard. After this hearing, the Merit Systems Protection
Board shall--
(1) determine whether a violation of section 1502
of this title has occurred;
(2) determine whether the violation warrants the
removal of the officer or employee from his office or
employment; and
(3) notify the officer or employee and the agency
of the determination by registered or certified mail.
Sec. 1506. Orders; withholding loans or grants; limitations
(a) When the Merit Systems Protection Board finds--
(1) that a State or local officer or employee has
not been removed from his office or employment within
30 days after notice of a determination by the Board
that he has violated section 1502 of this title and
that the violation warrants removal; or
(2) that the State or local officer or employee has
been removed and has been appointed within 18 months
after his removal to an office or employment in the
same State in a State or local agency which does not
receive loans or grants from a Federal agency;
the Board shall make and certify to the appropriate Federal
agency an order requiring that agency to withhold from its
loans or grants to the State or local agency to which notice
was given an amount equal to 2 years' pay at the rate the
officer or employee was receiving at the time of the violation.
When the State or local agency to which appointment within 18
months after removal has been made is one that receives loans
or grants from a Federal agency, the Board order shall direct
that the withholding be made from that State or local agency.
(b) Notice of the order shall be sent by registered or
certified mail to the State or local agency from which the
amount is ordered to be withheld. After the order becomes
final, the Federal agency to which the order is certified shall
withhold the amount in accordance with the terms of the order.
Except as provided by section 1508 of this title, a
determination of order of the Board becomes final at the end of
30 days after mailing the notice of the determination or order.
(c) The Board may not require an amount to be withheld from
a loan or grant pledged by a State or local agency as security
for its bonds or notes if the withholding of that amount would
jeopardize the payment of the principal or interest on the
bonds or notes.
Sec. 1507. Subpenas and depositions
(a) The Merit Systems Protection Board may require by
subpena the attendance and testimony of witnesses and the
production of documentary evidence relating to any matter
before it as a result of this chapter. Any member of the Board
may sign subpenas, and members of the Board and its examiners
when authorized by the Board may administer oaths, examine
witnesses, and receive evidence. The attendance of witnesses
and the production of documentary evidence may be required from
any place in the United States at the designated place of
hearing. In case of disobedience to a subpena, the Board may
invoke the aid of a court of the United States in requiring the
attendance and testimony of witnesses and the production of
documentary evidence. In case of contumacy or refusal to obey a
subpena issued to a person, the United States District Court
within whose jurisdiction the inquiry is carried on may issue
an order requiring him to appear before the Board, or to
produce documentary evidence if so ordered, or to give evidence
concerning the matter in question; and any failure to obey the
order of the court may be punished by the court as a contempt
thereof.
(b) The Board may order testimony to be taken by deposition
at any stage of a proceeding or investigation before it as a
result of this chapter. Depositions may be taken before an
individual designated by the Board and having the power to
administer oaths. Testimony shall be reduced to writing by the
individual taking the deposition, or under his direction, and
shall be subscribed by the deponent. Any person may be
compelled to appear and depose and to produce documentary
evidence before the Board as provided by this section.
(c) A person may not be excused from attending and
testifying or from producing documentary evidence or in
obedience to a subpena on the ground that the testimony or
evidence, documentary or otherwise required of him may tend to
incriminate him or subject him to a penalty or forfeiture for
or on account of any transaction, matter, or thing concerning
which he is compelled to testify, or produce evidence,
documentary or otherwise, before the Board in obedience to a
subpena issued by it. A person so testifying is not exempt from
prosecution and punishment for perjury committed in so
testifying.
Sec. 1508. Judicial review
A party aggrieved by a determination or order of the Merit
Systems Protection Board under section 1504, 1505, or 1506 of
this title may, within 30 days after the mailing of notice of
the determination or order, institute proceedings for review
thereof by filing a petition in the United States District
Court for the district in which the State or local officer or
employee resides. The institution of the proceedings does not
operate as a stay of the determination or order unless--
(1) the court specifically orders a stay; and
(2) the officer or employee is suspended from his
office or employment while the proceedings are pending.
A copy of the petition shall immediately be served on the
Board, and thereupon the Board shall certify and file in the
court a transcript of the record on which the determination or
order was made. The court shall review the entire record
including questions of fact and questions of law. If
application is made to the court for leave to adduce additional
evidence, and it is shown to the satisfaction of the court that
the additional evidence may materially affect the result of the
proceedings and that there were reasonable grounds for failure
to adduce this evidence in the hearing before the Board, the
court may direct that the additional evidence be taken before
the Board in the manner and on the terms and conditions fixed
by the court. The Board may modify its findings of fact or its
determination or order in view of the additional evidence and
shall file with the court the modified findings, determination,
or order; or the modified findings of fact, if supported by
substantial evidence, are conclusive. The court shall affirm
the determination or order, or the modified determination or
order, if the court determines that it is in accordance with
law. If the court determines that the determination or order,
or the modified determination or order, is not in accordance
with law, the court shall remand the proceeding to the Board
with directions either to make a determination or order
determined by the court to be lawful or to take such further
proceedings as, in the opinion of the court, the law requires.
The judgment and decree of the court are final, subject to
review by the appropriate United States Court of Appeals as in
other cases, and the judgment and decree of the court of
appeals are final, subject to review by the Supreme Court of
the United States on certiorari or certification as provided by
section 1254 of title 28. If a provision of this section is
held to be invalid as applied to a party by a determination or
order of the Board, the determination or order becomes final
and effective as to that party as if the provision had not been
enacted.
PART III--EMPLOYEES
Subpart A--General Provisions
Chap. Sec.
Definitions...................................................2101
Merit System Principles.......................................2301
Commissions, Oaths, Records, and Reports......................2901
Subpart B--Employment and Retention
---------------------------------------------------------------------------
\1\ So in law. Probably should read ``Part-Time Career Employment
Opportunities''.
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Authority for Employment......................................3101
Examination, Selection, and Placement.........................3301
Part-time career employment opportunities \1\.................3401
Retention Preference, Restoration, and Reemployment...........3501
Subpart C--Employee Performance
Training......................................................4101
Performance Appraisal.........................................4301
Incentive Awards..............................................4501
Personnel Research Programs and Demonstration Projects........4701
Subpart D--Pay and Allowances
Classification................................................5101
Pay Rates and Systems.........................................5301
Pay Administration............................................5501
Travel, Transportation, and Subsistence.......................5701
Allowances....................................................5901
Subpart E--Attendance and Leave
Hours of Work.................................................6101
Leave.........................................................6301
Subpart F--Labor-Management and Employee Relations
Labor-Management Relations....................................7101
Antidiscrimination; Right to Petition Congress................7201
Suitability, Security, and Conduct............................7301
Adverse Actions...............................................7501
Appeals.......................................................7701
Services to Employees.........................................7901
Subpart G--Insurance and Annuities
Chap. Sec.
Compensation for Work Injuries................................8101
Retirement....................................................8301
Federal Employees' Retirement System..........................8401
Unemployment Compensation.....................................8501
Life Insurance................................................8701
Health Insurance..............................................8901
Long-Term Care Insurance......................................9001
Subpart H--Access to Criminal History Record Information
Access to Criminal History Records for National Security and Other
Purposes....................................................9101
Subpart I--Miscellaneous
Personnel flexibilities relating to the Internal Revenue Service
\1\.........................................................9501
---------------------------------------------------------------------------
\1\ So in law. Section 1201 of Public Law 105-206 added to the
table of sections the following: ``Personnel flexibilities relating to
the Internal Revenue Service''. Probably should have been ``Personnel
Flexibilities Relating to the Internal Revenue Service''.
Subpart A--General Provisions
CHAPTER 21--DEFINITIONS
Sec.
2101. Civil service; armed forces; uniformed services.
2101a. The Senior Executive Service.
2102. The competitive service.
2103. The excepted service.
2104. Officer.
2105. Employee.
2106. Member of Congress.
2107. Congressional employee.
2108. Veteran; disabled veteran; preference eligible.
2109. Air traffic controller; Secretary.
Sec. 2101. Civil service; armed forces; uniformed services
For the purpose of this title--
(1) the ``civil service'' consists of all
appointive positions in the executive, judicial, and
legislative branches of the Government of the United
States, except positions in the uniformed services;
(2) ``armed forces'' means the Army, Navy, Air
Force, Marine Corps, and Coast Guard; and
(3) ``uniformed services'' means the armed forces,
the commissioned corps of the Public Health Service,
and the commissioned corps of the National Oceanic and
Atmospheric Administration.
Sec. 2101a. The Senior Executive Service
The ``Senior Executive Service'' consists of Senior
Executive Service positions (as defined in section 3132(a)(2)
of this title).
Sec. 2102. The competitive service
(a) The ``competitive service'' consists of--
(1) all civil service positions in the executive
branch, except--
(A) positions which are specifically
excepted from the competitive service by or
under statute;
(B) positions to which appointments are
made by nomination for confirmation by the
Senate, unless the Senate otherwise directs;
and
(C) positions in the Senior Executive
Service;
(2) civil service positions not in the executive
branch which are specifically included in the
competitive service by statute; and
(3) positions in the government of the District of
Columbia which are specifically included in the
competitive service by statute.
(b) Notwithstanding subsection (a)(1)(B) of this section,
the ``competitive service'' includes positions to which
appointments are made by nomination for confirmation by the
Senate when specifically included therein by statute.
(c) As used in other Acts of Congress, ``classified civil
service'' or ``classified service'' means the ``competitive
service''.
Sec. 2103. The excepted service
(a) For the purpose of this title, the ``excepted service''
consists of those civil service positions which are not in the
competitive service or the Senior Executive Service.
(b) As used in other Acts of Congress, ``unclassified civil
service'' or ``unclassified service'' means the ``excepted
service''.
Sec. 2104. Officer
(a) For the purpose of this title, ``officer'', except as
otherwise provided by this section or when specifically
modified, means a justice or judge of the United States and an
individual who is--
(1) required by law to be appointed in the civil
service by one of the following acting in an official
capacity--
(A) the President;
(B) a court of the United States;
(C) the head of an Executive agency; or
(D) the Secretary of a military department;
(2) engaged in the performance of a Federal
function under authority of law or an Executive act;
and
(3) subject to the supervision of an authority
named by paragraph (1) of this section, or the Judicial
Conference of the United States, while engaged in the
performance of the duties of his office.
(b) Except as otherwise provided by law, an officer of the
United States Postal Service or of the Postal Rate Commission
is deemed not an officer for purposes of this title.
Sec. 2105. Employee
(a) For the purpose of this title, ``employee'', except as
otherwise provided by this section or when specifically
modified, means an officer and an individual who is--
(1) appointed in the civil service by one of the
following acting in an official capacity--
(A) the President;
(B) a Member or Members of Congress, or the
Congress;
(C) a member of a uniformed service;
(D) an individual who is an employee under
this section;
(E) the head of a Government controlled
corporation; or
(F) an adjutant general designated by the
Secretary concerned under section 709(c) of
title 32;
(2) engaged in the performance of a Federal
function under authority of law or an Executive act;
and
(3) subject to the supervision of an individual
named by paragraph (1) of this subsection while engaged
in the performance of the duties of his position.
(b) An individual who is employed at the United States
Naval Academy in the midshipmen's laundry, the midshipmen's
tailor shop, the midshipmen's cobbler and barber shops, and the
midshipmen's store, except an individual employed by the
Academy dairy (if any), and whose employment in such a position
began before October 1, 1996, and has been uninterrupted in
such a position since that date is deemed an employee.
(c) An employee paid from nonappropriated funds of the Army
and Air Force Exchange Service, Army and Air Force Motion
Picture Service, Navy Ship's Stores Ashore, Navy exchanges,
Marine Corps exchanges, Coast Guard exchanges, and other
instrumentalities of the United States under the jurisdiction
of the armed forces conducted for the comfort, pleasure,
contentment, and mental and physical improvement of personnel
of the armed forces is deemed not an employee for the purpose
of--
(1) laws administered by the Office of Personnel
Management, except--
(A) section 7204;
(B) as otherwise specifically provided in
this title;
(C) the Fair Labor Standards Act of 1938;
(D) for the purpose of entering into an
interchange agreement to provide for the
noncompetitive movement of employees between
such instrumentalities and the competitive
service; or
(E) subchapter V of chapter 63, which shall
be applied so as to construe references to
benefit programs to refer to applicable
programs for employees paid from
nonappropriated funds; or
(2) subchapter I of chapter 81, chapter 84 (except
to the extent specifically provided therein), and
section 7902 of this title.
This subsection does not affect the status of these
nonappropriated fund activities as Federal instrumentalities.
(d) A Reserve of the armed forces who is not on active duty
or who is on active duty for training is deemed not an employee
or an individual holding an office of trust or profit or
discharging an official function under or in connection with
the United States because of his appointment, oath, or status,
or any duties or functions performed or pay or allowances
received in that capacity.
(e) Except as otherwise provided by law, an employee of the
United States Postal Service or of the Postal Rate Commission
is deemed not an employee for purposes of this title.
(f) For purposes of sections 1212, 1213, 1214, 1215, 1216,
1221, 1222, 2302, and 7701, employees appointed under chapter
73 or 74 of title 38 shall be employees.
Sec. 2106. Member of Congress
For the purpose of this title, ``Member of Congress'' means
the Vice President, a member of the Senate or the House of
Representatives, a Delegate to the House of Representatives,
and the Resident Commissioner from Puerto Rico.
Sec. 2107. Congressional employee
For the purpose of this title, ``Congressional employee''
means--
(1) an employee of either House of Congress, of a
committee of either House, or of a joint committee of
the two Houses;
(2) an elected officer of either House who is not a
Member of Congress;
(3) the Legislative Counsel of either House and an
employee of his office;
(4) a member of the Capitol Police;
(5) an employee of a Member of Congress if the pay
of the employee is paid by the Secretary of the Senate
or the Chief Administrative Officer of the House of
Representatives;
[(6) Repealed. Pub. L. 90-83, Sec. 1(5)(A), Sept.
11, 1967, 81 Stat. 196.]
(7) the Architect of the Capitol and an employee of
the Architect of the Capitol;
(8) an employee of the Botanic Garden; and
(9) an employee of the Capitol Guide Service.
Sec. 2108. Veteran; disabled veteran; preference eligible
For the purpose of this title--
(1) ``veteran'' means an individual who--
(A) served on active duty in the armed
forces during a war, in a campaign or
expedition for which a campaign badge has been
authorized, or during the period beginning
April 28, 1952, and ending July 1, 1955;
(B) served on active duty as defined by
section 101(21) of title 38 at any time in the
armed forces for a period of more than 180
consecutive days any part of which occurred
after January 31, 1955, and before the date of
enactment of the Veterans' Education and
Employment Assistance Act of 1976, not
including service under section 511(d) of title
10 pursuant to an enlistment in the Army
National Guard or the Air National Guard or as
a Reserve for service in the Army Reserve,
Naval Reserve, Air Force Reserve, Marine Corps
Reserve, or Coast Guard Reserve; or
(C) served on active duty as defined by
section 101(21) of title 38 in the armed forces
during the period beginning on August 2, 1990,
and ending on January 2, 1992;
and who has been separated from the armed forces under
honorable conditions;
(2) ``disabled veteran'' means an individual who
has served on active duty in the armed forces, has been
separated therefrom under honorable conditions, and has
established the present existence of a service-
connected disability or is receiving compensation,
disability retirement benefits, or pension because of a
public statute administered by the Department of
Veterans Affairs or a military department;
(3) ``preference eligible'' means, except as
provided in paragraph (4) of this section--
(A) a veteran as defined by paragraph
(1)(A) of this section;
(B) a veteran as defined by paragraph
(1)(B) or (C) of this section;
(C) a disabled veteran;
(D) the unmarried widow or widower of a
veteran as defined by paragraph (1)(A) of this
section;
(E) the wife or husband of a service-
connected disabled veteran if the veteran has
been unable to qualify for any appointment in
the civil service or in the government of the
District of Columbia;
(F) the mother of an individual who lost
his life under honorable conditions while
serving in the armed forces during a period
named by paragraph (1)(A) of this section, if--
(i) her husband is totally and
permanently disabled;
(ii) she is widowed, divorced, or
separated from the father and has not
remarried; or
(iii) she has remarried but is
widowed, divorced, or legally separated
from her husband when preference is
claimed; and
(G) the mother of a service-connected
permanently and totally disabled veteran, if--
(i) her husband is totally and
permanently disabled;
(ii) she is widowed, divorced, or
separated from the father and has not
remarried; or
(iii) she has remarried but is
widowed, divorced, or legally separated
from her husband when preference is
claimed;
but does not include applicants for, or members of, the
Senior Executive Service, the Defense Intelligence
Senior Executive Service, the Senior Cryptologic
Executive Service, or the Federal Bureau of
Investigation and Drug Enforcement Administration
Senior Executive Service;
(4) except for the purposes of chapters 43 and 75
of this title, ``preference eligible'' does not include
a retired member of the armed forces unless--
(A) the individual is a disabled veteran;
or
(B) the individual retired below the rank
of major or its equivalent; and
(5) ``retired member of the armed forces'' means a
member or former member of the armed forces who is
entitled, under statute, to retired, retirement, or
retainer pay on account of service as a member.
Sec. 2109. Air traffic controller; Secretary
For the purpose of this title--
(1) ``air traffic controller'' or ``controller''
means a civilian employee of the Department of
Transportation or the Department of Defense who, in an
air traffic control facility or flight service station
facility--
(A) is actively engaged--
(i) in the separation and control
of air traffic; or
(ii) in providing preflight,
inflight, or airport advisory service
to aircraft operators; or
(B) is the immediate supervisor of any
employee described in subparagraph (A); and
(2) ``Secretary'', when used in connection with
``air traffic controller'' or ``controller'', means the
Secretary of Transportation with respect to controllers
in the Department of Transportation, and the Secretary
of Defense with respect to controllers in the
Department of Defense.
CHAPTER 23--MERIT SYSTEM PRINCIPLES
Sec.
2301. Merit system principles.
2302. Prohibited personnel practices.
2303. Prohibited personnel practices in the Federal Bureau of
Investigation.
2304. Responsibility of the General Accounting Office.
2305. Coordination with certain other provisions of law.
Sec. 2301. Merit system principles
(a) This section shall apply to--
(1) an Executive agency; and
(2) the Government Printing Office.
(b) Federal personnel management should be implemented
consistent with the following merit system principles:
(1) Recruitment should be from qualified
individuals from appropriate sources in an endeavor to
achieve a work force from all segments of society, and
selection and advancement should be determined solely
on the basis of relative ability, knowledge, and
skills, after fair and open competition which assures
that all receive equal opportunity.
(2) All employees and applicants for employment
should receive fair and equitable treatment in all
aspects of personnel management without regard to
political affiliation, race, color, religion, national
origin, sex, marital status, age, or handicapping
condition, and with proper regard for their privacy and
constitutional rights.
(3) Equal pay should be provided for work of equal
value, with appropriate consideration of both national
and local rates paid by employers in the private
sector, and appropriate incentives and recognition
should be provided for excellence in performance.
(4) All employees should maintain high standards of
integrity, conduct, and concern for the public
interest.
(5) The Federal work force should be used
efficiently and effectively.
(6) Employees should be retained on the basis of
the adequacy of their performance, inadequate
performance should be corrected, and employees should
be separated who cannot or will not improve their
performance to meet required standards.
(7) Employees should be provided effective
education and training in cases in which such education
and training would result in better organizational and
individual performance.
(8) Employees should be--
(A) protected against arbitrary action,
personal favoritism, or coercion for partisan
political purposes, and
(B) prohibited from using their official
authority or influence for the purpose of
interfering with or affecting the result of an
election or a nomination for election.
(9) Employees should be protected against reprisal
for the lawful disclosure of information which the
employees reasonably believe evidences--
(A) a violation of any law, rule, or
regulation, or
(B) mismanagement, a gross waste of funds,
an abuse of authority, or a substantial and
specific danger to public health or safety.
(c) In administering the provisions of this chapter--
(1) with respect to any agency (as defined in
section 2302(a)(2)(C) of this title), the President
shall, pursuant to the authority otherwise available
under this title, take any action, including the
issuance of rules, regulations, or directives; and
(2) with respect to any entity in the executive
branch which is not such an agency or part of such an
agency, the head of such entity shall, pursuant to
authority otherwise available, take any action,
including the issuance of rules, regulations, or
directives;
which is consistent with the provisions of this title and which
the President or the head, as the case may be, determines is
necessary to ensure that personnel management is based on and
embodies the merit system principles.
Sec. 2302. Prohibited personnel practices
(a)(1) For the purpose of this title, ``prohibited
personnel practice'' means any action described in subsection
(b).
(2) For the purpose of this section--
(A) ``personnel action'' means--
(i) an appointment;
(ii) a promotion;
(iii) an action under chapter 75 of this
title or other disciplinary or corrective
action;
(iv) a detail, transfer, or reassignment;
(v) a reinstatement;
(vi) a restoration;
(vii) a reemployment;
(viii) a performance evaluation under
chapter 43 of this title;
(ix) a decision concerning pay, benefits,
or awards concerning education or training if
the education or training may reasonably be
expected to lead to an appointment, promotion,
performance evaluation, or other action
described in this subparagraph;
(x) \1\ a decision to order
psychiatric testing or examination; and
---------------------------------------------------------------------------
\1\ So in original. The margins for this clause probably should be
moved 2 ems to the left.
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(xi) \1\ any other significant
change in duties, responsibilities, or
working conditions;
with respect to an employee in, or applicant for, a
covered position in an agency, and in the case of an
alleged prohibited personnel practice described in
subsection (b)(8), an employee or applicant for
employment in a Government corporation as defined in
section 9101 of title 31;
(B) ``covered position'' means, with respect to any
personnel action, any position in the competitive
service, a career appointee position in the Senior
Executive Service, or a position in the excepted
service, but does not include any position which is,
prior to the personnel action--
(i) excepted from the competitive service
because of its confidential, policy-
determining, policy-making, or policy-
advocating character; or
(ii) excluded from the coverage of this
section by the President based on a
determination by the President that it is
necessary and warranted by conditions of good
administration; and
(C) ``agency'' means an Executive agency and the
Government Printing Office, but does not include--
(i) a Government corporation, except in the
case of an alleged prohibited personnel
practice described under subsection (b)(8);
(ii) the Federal Bureau of Investigation,
the Central Intelligence Agency, the Defense
Intelligence Agency, the National Imagery and
Mapping Agency, the National Security Agency,
and, as determined by the President, any
Executive agency or unit thereof the principal
function of which is the conduct of foreign
intelligence or counterintelligence activities;
or
(iii) the General Accounting Office.
(b) Any employee who has authority to take, direct others
to take, recommend, or approve any personnel action, shall not,
with respect to such authority--
(1) discriminate for or against any employee or
applicant for employment--
(A) on the basis of race, color, religion,
sex, or national origin, as prohibited under
section 717 of the Civil Rights Act of 1964 (42
U.S.C. 2000e-16);
(B) on the basis of age, as prohibited
under sections 12 and 15 of the Age
Discrimination in Employment Act of 1967 (29
U.S.C. 631, 633a);
(C) on the basis of sex, as prohibited
under section 6(d) of the Fair Labor Standards
Act of 1938 (29 U.S.C. 206(d));
(D) on the basis of handicapping condition,
as prohibited under section 501 of the
Rehabilitation Act of 1973 (29 U.S.C. 791); or
(E) on the basis of marital status or
political affiliation, as prohibited under any
law, rule, or regulation;
(2) solicit or consider any recommendation or
statement, oral or written, with respect to any
individual who requests or is under consideration for
any personnel action unless such recommendation or
statement is based on the personal knowledge or records
of the person furnishing it and consists of--
(A) an evaluation of the work performance,
ability, aptitude, or general qualifications of
such individual; or
(B) an evaluation of the character,
loyalty, or suitability of such individual;
(3) coerce the political activity of any person
(including the providing of any political contribution
or service), or take any action against any employee or
applicant for employment as a reprisal for the refusal
of any person to engage in such political activity;
(4) deceive or willfully obstruct any person with
respect to such person's right to compete for
employment;
(5) influence any person to withdraw from
competition for any position for the purpose of
improving or injuring the prospects of any other person
for employment;
(6) grant any preference or advantage not
authorized by law, rule, or regulation to any employee
or applicant for employment (including defining the
scope or manner of competition or the requirements for
any position) for the purpose of improving or injuring
the prospects of any particular person for employment;
(7) appoint, employ, promote, advance, or advocate
for appointment, employment, promotion, or advancement,
in or to a civilian position any individual who is a
relative (as defined in section 3110(a)(3) of this
title) of such employee if such position is in the
agency in which such employee is serving as a public
official (as defined in section 3110(a)(2) of this
title) or over which such employee exercises
jurisdiction or control as such an official;
(8) take or fail to take, or threaten to take or
fail to take, a personnel action with respect to any
employee or applicant for employment because of--
(A) any disclosure of information by an
employee or applicant which the employee or
applicant reasonably believes evidences--
(i) a violation of any law, rule,
or regulation, or
(ii) gross mismanagement, a gross
waste of funds, an abuse of authority,
or a substantial and specific danger to
public health or safety,
if such disclosure is not specifically
prohibited by law and if such information is
not specifically required by Executive order to
be kept secret in the interest of national
defense or the conduct of foreign affairs; or
(B) any disclosure to the Special Counsel,
or to the Inspector General of an agency or
another employee designated by the head of the
agency to receive such disclosures, of
information which the employee or applicant
reasonably believes evidences--
(i) a violation of any law, rule,
or regulation, or
(ii) gross mismanagement, a gross
waste of funds, an abuse of authority,
or a substantial and specific danger to
public health or safety;
(9) take or fail to take, or threaten to take or
fail to take, any personnel action against any employee
or applicant for employment because of--
(A) the exercise of any appeal, complaint,
or grievance right granted by any law, rule, or
regulation;
(B) testifying for or otherwise lawfully
assisting any individual in the exercise of any
right referred to in subparagraph (A);
(C) cooperating with or disclosing
information to the Inspector General of an
agency, or the Special Counsel, in accordance
with applicable provisions of law; or
(D) for refusing to obey an order that
would require the individual to violate a law.
(10) discriminate for or against any employee or
applicant for employment on the basis of conduct which
does not adversely affect the performance of the
employee or applicant or the performance of others;
except that nothing in this paragraph shall prohibit an
agency from taking into account in determining
suitability or fitness any conviction of the employee
or applicant for any crime under the laws of any State,
of the District of Columbia, or of the United States;
(11)(A) knowingly take, recommend, or approve any
personnel action if the taking of such action would
violate a veterans' preference requirement; or
(B) knowingly fail to take, recommend, or approve
any personnel action if the failure to take such action
would violate a veterans' preference requirement; or
(12) take or fail to take any other personnel
action if the taking of or failure to take such action
violates any law, rule, or regulation implementing, or
directly concerning, the merit system principles
contained in section 2301 of this title.
This subsection shall not be construed to authorize the
withholding of information from the Congress or the taking of
any personnel action against an employee who discloses
information to the Congress.
(c) The head of each agency shall be responsible for the
prevention of prohibited personnel practices, for the
compliance with and enforcement of applicable civil service
laws, rules, and regulations, and other aspects of personnel
management, and for ensuring (in consultation with the Office
of Special Counsel) that agency employees are informed of the
rights and remedies available to them under this chapter and
chapter 12 of this title. Any individual to whom the head of an
agency delegates authority for personnel management, or for any
aspect thereof, shall be similarly responsible within the
limits of the delegation.
(d) This section shall not be construed to extinguish or
lessen any effort to achieve equal employment opportunity
through affirmative action or any right or remedy available to
any employee or applicant for employment in the civil service
under--
(1) section 717 of the Civil Rights Act of 1964 (42
U.S.C. 2000e-16), prohibiting discrimination on the
basis of race, color, religion, sex, or national
origin;
(2) sections 12 and 15 of the Age Discrimination in
Employment Act of 1967 (29 U.S.C. 631, 633a),
prohibiting discrimination on the basis of age;
(3) under section 6(d) of the Fair Labor Standards
Act of 1938 (29 U.S.C. 206(d)), prohibiting
discrimination on the basis of sex;
(4) section 501 of the Rehabilitation Act of 1973
(29 U.S.C. 791), prohibiting discrimination on the
basis of handicapping condition; or
(5) the provisions of any law, rule, or regulation
prohibiting discrimination on the basis of marital
status or political affiliation.
(e)(1) For the purpose of this section, the term
``veterans' preference requirement'' means any of the following
provisions of law:
(A) Sections 2108, 3305(b), 3309, 3310, 3311, 3312,
3313, 3314, 3315, 3316, 3317(b), 3318, 3320, 3351,
3352, 3363, 3501, 3502(b), 3504, and 4303(e) and (with
respect to a preference eligible referred to in section
7511(a)(1)(B)) subchapter II of chapter 75 and section
7701.
(B) Sections 943(c)(2) and 1784(c) of title 10.
(C) Section 1308(b) of the Alaska National Interest
Lands Conservation Act.
(D) Section 301(c) of the Foreign Service Act of
1980.
(E) Sections 106(f), 7281(e), and 7802(5) of title
38.
(F) Section 1005(a) of title 39.
(G) Any other provision of law that the Director of
the Office of Personnel Management designates in
regulations as being a veterans' preference requirement
for the purposes of this subsection.
(H) Any regulation prescribed under subsection (b)
or (c) of section 1302 and any other regulation that
implements a provision of law referred to in any of the
preceding subparagraphs.
(2) Notwithstanding any other provision of this title, no
authority to order corrective action shall be available in
connection with a prohibited personnel practice described in
subsection (b)(11). Nothing in this paragraph shall be
considered to affect any authority under section 1215 (relating
to disciplinary action).
Sec. 2303. Prohibited personnel practices in the Federal Bureau of
Investigation
(a) Any employee of the Federal Bureau of Investigation who
has authority to take, direct others to take, recommend, or
approve any personnel action, shall not, with respect to such
authority, take or fail to take a personnel action with respect
to any employee of the Bureau as a reprisal for a disclosure of
information by the employee to the Attorney General (or an
employee designated by the Attorney General for such purpose)
which the employee or applicant reasonably believes evidences--
(1) a violation of any law, rule, or regulation, or
(2) mismanagement, a gross waste of funds, an abuse
of authority, or a substantial and specific danger to
public health or safety.
For the purpose of this subsection, ``personnel action'' means
any action described in clauses (i) through (x) of section
2302(a)(2)(A) of this title with respect to an employee in, or
applicant for, a position in the Bureau (other than a position
of a confidential, policy-determining, policy-making, or
policy-advocating character).
(b) The Attorney General shall prescribe regulations to
ensure that such a personnel action shall not be taken against
an employee of the Bureau as a reprisal for any disclosure of
information described in subsection (a) of this section.
(c) The President shall provide for the enforcement of this
section in a manner consistent with applicable provisions of
sections 1214 and 1221 of this title.
Sec. 2304. Responsibility of the General Accounting Office
If requested by either House of the Congress (or any
committee thereof), or if considered necessary by the
Comptroller General, the General Accounting Office shall
conduct audits and reviews to assure compliance with the laws,
rules, and regulations governing employment in the executive
branch and in the competitive service and to assess the
effectiveness and soundness of Federal personnel management.
Sec. 2305. Coordination with certain other provisions of law
No provision of this chapter, or action taken under this
chapter, shall be construed to impair the authorities and
responsibilities set forth in section 102 of the National
Security Act of 1947 (61 Stat. 495; 50 U.S.C. 403), the Central
Intelligence Agency Act of 1949 (63 Stat. 208; 50 U.S.C. 403a
and following), the Act entitled ``An Act to provide certain
administrative authorities for the National Security Agency,
and for other purposes'', approved May 29, 1959 (73 Stat. 63;
50 U.S.C. 402 note), and the Act entitled ``An Act to amend the
Internal Security Act of 1950'', approved March 26, 1964 (78
Stat. 168; 50 U.S.C. 831-835).
CHAPTER 29--COMMISSIONS, OATHS, RECORDS, AND REPORTS
SUBCHAPTER I--COMMISSIONS, OATHS, AND RECORDS
Sec.
2901. Commission of an officer.
2902. Commission; where recorded.
2903. Oath; authority to administer.
2904. Oath; administered without fees.
2905. Oath; renewal.
2906. Oath; custody.
SUBCHAPTER II--REPORTS
2951. Reports to the Office of Personnel Management.
2952. Time of making annual reports.
2953. Reports to Congress on additional employee requirements.
2954. Information to committees of Congress on request.
SUBCHAPTER I--COMMISSIONS, OATHS, AND RECORDS
Sec. 2901. Commission of an officer
The President may make out and deliver, after adjournment
of the Senate, the commission of an officer whose appointment
has been confirmed by the Senate.
Sec. 2902. Commission; where recorded
(a) Except as provided by subsections (b) and (c) of this
section, the Secretary of State shall make out and record, and
affix the seal of the United States to, the commission of an
officer appointed by the President. The seal of the United
States may not be affixed to the commission before the
commission has been signed by the President.
(b) The commission of an officer in the civil service or
uniformed services under the control of the Secretary of
Agriculture, the Secretary of Commerce, the Secretary of
Defense, the Secretary of a military department, the Secretary
of the Interior, or the Secretary of the Treasury shall be made
out and recorded in the department in which he is to serve
under the seal of that department. The departmental seal may
not be affixed to the commission before the commission has been
signed by the President.
(c) The commissions of judicial officers and United States
attorneys and marshals, appointed by the President, by and with
the advice and consent of the Senate, and other commissions
which before August 8, 1888, were prepared at the Department of
State on the requisition of the Attorney General, shall be made
out and recorded in the Department of Justice under the seal of
that department and countersigned by the Attorney General. The
departmental seal may not be affixed to the commission before
the commission has been signed by the President.
Sec. 2903. Oath; authority to administer
(a) The oath of office required by section 3331 of this
title may be administered by an individual authorized by the
laws of the United States or local law to administer oaths in
the State, District, or territory or possession of the United
States where the oath is administered.
(b) An employee of an Executive agency designated in
writing by the head of the Executive agency, or the Secretary
of a military department with respect to an employee of his
department, may administer--
(1) the oath of office required by section 3331 of
this title, incident to entrance into the executive
branch; or
(2) any other oath required by law in connection
with employment in the executive branch.
(c) An oath authorized or required under the laws of the
United States may be administered by--
(1) the Vice President; or
(2) an individual authorized by local law to
administer oaths in the State, District, or territory
or possession of the United States where the oath is
administered.
Sec. 2904. Oath; administered without fees
An employee of an Executive agency who is authorized to
administer the oath of office required by section 3331 of this
title, or any other oath required by law in connection with
employment in the executive branch, may not charge or receive a
fee or pay for administering the oath.
Sec. 2905. Oath; renewal
(a) An employee of an Executive agency or an individual
employed by the government of the District of Columbia who, on
original appointment, subscribed to the oath of office required
by section 3331 of this title is not required to renew the oath
because of a change in status so long as his service is
continuous in the agency in which he is employed, unless, in
the opinion of the head of the Executive agency, the Secretary
of a military department with respect to an employee of his
department, or the Commissioners of the District of Columbia,
the public interest so requires.
(b) An individual who, on appointment as an employee of a
House of Congress, subscribed to the oath of office required by
section 3331 of this title is not required to renew the oath so
long as his service as an employee of that House of Congress is
continuous.
Sec. 2906. Oath; custody
The oath of office taken by an individual under section
3331 of this title shall be delivered by him to, and preserved
by, the House of Congress, agency, or court to which the office
pertains.
SUBCHAPTER II--REPORTS
Sec. 2951. Reports to the Office of Personnel Management
The President may prescribe rules which shall provide, as
nearly as conditions of good administration warrant, that--
(1) the appointing authority notify the Office of
Personnel Management in writing of the following
actions and their dates as to each individual selected
for appointment in the competitive service from among
those who have been examined--
(A) appointment and residence of appointee;
(B) separation during probation;
(C) transfer;
(D) resignation;
(E) removal; and
(2) the Office keep records of these actions.
Sec. 2952. Time of making annual reports
Except when a different time is specifically prescribed by
statute, the head of each Executive department or military
department shall make the annual reports, required to be
submitted to Congress, at the beginning of each regular session
of Congress. The reports shall cover the transactions of the
preceding year.
Sec. 2953. Reports to Congress on additional employee requirements
(a) Each report, recommendation, or other communication, of
an official nature, of an Executive agency which--
(1) relates to pending or proposed legislation
which, if enacted, will entail an estimated annual
expenditure of appropriated funds in excess of
$1,000,000;
(2) is submitted or transmitted to Congress or a
committee thereof in compliance with law or on the
initiative of the appropriate authority of the
executive branch; and
(3) officially proposes or recommends the creation
or expansion, either by action of Congress or by
administrative action, of a function, activity, or
authority of the Executive agency to be in addition to
those functions, activities, and authorities thereof
existing when the report, recommendation, or other
communication is so submitted or transmitted;
shall contain a statement, concerning the Executive agency, for
each of the first 5 fiscal years during which each additional
or expanded function, activity, or authority so proposed or
recommended is to be in effect, setting forth the following
information--
(A) the estimated maximum additional--
(i) man-years of civilian employment, by
general categories of positions;
(ii) expenditures for personal services;
and
(iii) expenditures for all purposes other
than personal services;
which are attributable to the function, activity, or
authority and which will be required to be effected by
the Executive agency in connection with the performance
thereof; and
(B) such other statement, discussion, explanation,
or other information as is considered advisable by the
appropriate authority of the executive branch or that
is required by Congress or a committee thereof.
(b) Subsection (a) of this section does not apply to--
(1) the Central Intelligence Agency;
(2) a Government controlled corporation; or
(3) the General Accounting Office.
Sec. 2954. Information to committees of Congress on request
An Executive agency, on request of the Committee on
Government Operations of the House of Representatives, or of
any seven members thereof, or on request of the Committee on
Governmental Affairs of the Senate, or any five members
thereof, shall submit any information requested of it relating
to any matter within the jurisdiction of the committee.
Subpart B--Employment and Retention
CHAPTER 31--AUTHORITY FOR EMPLOYMENT
SUBCHAPTER I--EMPLOYMENT AUTHORITIES
Sec.
3101. General authority to employ.
3102. Employment of personal assistants for handicapped employees,
including blind and deaf employees.
3103. Employment at seat of Government only for services rendered.
3104. Employment of specially qualified scientific and professional
personnel.
3105. Appointment of administrative law judges.
3106. Employment of attorneys; restrictions.
3107. Employment of publicity experts; restrictions.
3108. Employment of detective agencies; restrictions.
3109. Employment of experts and consultants; temporary or
intermittent.
3110. Employment of relatives; restrictions.
3111. Acceptance of volunteer service.
3112. Disabled veterans; noncompetitive appointment.
3113. Restriction on reemployment after conviction of certain crimes.
SUBCHAPTER II--THE SENIOR EXECUTIVE SERVICE
3131. The Senior Executive Service.
3132. Definitions and exclusions.
3133. Authorization of positions; authority for appointment.
3134. Limitations on noncareer and limited appointments.
[3135. Repealed.]
3136. Regulations.
SUBCHAPTER III--THE FEDERAL BUREAU OF INVESTIGATION AND DRUG ENFORCEMENT
ADMINISTRATION SENIOR EXECUTIVE SERVICE
3151. The Federal Bureau of Investigation and Drug Enforcement
Administration Senior Executive Service.
3152. Limitation on pay.
SUBCHAPTER IV--TEMPORARY ORGANIZATIONS ESTABLISHED BY LAW OR EXECUTIVE
ORDER
Sec.\1\
3161. Employment and compensation of employees.
SUBCHAPTER I--EMPLOYMENT AUTHORITIES
Sec. 3101. General authority to employ
Each Executive agency, military department, and the
government of the District of Columbia may employ such number
of employees of the various classes recognized by chapter 51 of
this title as Congress may appropriate for from year to year.
---------------------------------------------------------------------------
\1\ So in law. Section 1101(b) of the Floyd D. Spence National
Defense Authorization Act for Fiscal Year 2001 (as enacted into law by
section 1 of Public Law 106-398; 114 Stat. 1654A-310) amended the table
of sections for chapter 31 by adding at the end a new subchapter IV.
The amendment probably should not have included ``Sec.'' in the
inserted matter.
---------------------------------------------------------------------------
Sec. 3102. Employment of personal assistants for handicapped employees,
including blind and deaf employees
(a) For the purpose of this section--
(1) \1\ ``agency'' means--
---------------------------------------------------------------------------
\1\ Section 307 of the Departments of Commerce, Justice, and State,
the Judiciary, and Related Agencies Appropriations Act, 2001 (as
enacted into law by section 1(a)(2) of Public Law 106-553; 114 Stat.
2762) provides for amendments to this paragraph that could not be
executed due to the execution of identical amendments made by section
311 of Public Law 106-518.
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(A) an Executive agency;
(B) the Library of Congress; and
(C) an office, agency, or other
establishment in the judicial branch;
(2) ``handicapped employee'' means an individual
employed by an agency who is blind or deaf or who
otherwise qualifies as a handicapped individual within
the meaning of section 501 of the Rehabilitation Act of
1973 (29 U.S.C. 794); and
(3) ``nonprofit organization'' means an
organization determined by the Secretary of the
Treasury to be an organization described in section
501(c) of the Internal Revenue Code of 1954 (26 U.S.C.
501(c)) which is exempt from taxation under section
501(a) of such Code.
(b)(1) The head of each agency may employ one or more
personal assistants who the head of the agency determines are
necessary to enable a handicapped employee of that agency to
perform the employee's official duties and who shall serve
without pay from the agency without regard to--
(A) the provisions of this title governing
appointment in the competitive service;
(B) chapter 51 and subchapter III of chapter 53 of
this title; and
(C) section 1342 of title 31.
Such employment may include the employing of a reading
assistant or assistants for a blind employee or an interpreting
assistant or assistants for a deaf employee.
(2) A personal assistant, including a reading or
interpreting assistant, employed under this subsection may
receive pay for services performed by the assistant from the
handicapped employee or a nonprofit organization, without
regard to section 209 of title 18.
(c) The head of each agency may also employ or assign one
or more personal assistants who the head of the agency
determines are necessary to enable a handicapped employee of
that agency to perform the employee's official duties. Such
employment may include the employing of a reading assistant or
assistants for a blind employee or an interpreting assistant or
assistants for a deaf employee.
(d)(1) In the case of any handicapped employee (including a
blind or deaf employee) traveling on official business, the
head of the agency may authorize the payment to an individual
to accompany or assist (or both) the handicapped employee for
all or a portion of the travel period involved. Any payment
under this subsection to such an individual may be made either
directly to that individual or by advancement or
reimbursement to the handicapped employee.
(2) With respect to any individual paid to accompany or
assist a handicapped employee under paragraph (1) of this
subsection--
(A) the amount paid to that individual shall not
exceed the limit or limits which the Office of
Personnel Management shall prescribe by regulation to
ensure that the payment does not exceed amounts
(including pay and, if appropriate, travel expenses and
per diem allowances) which could be paid to an employee
assigned to accompany or assist the handicapped
employee; and
(B) that individual shall be considered an
employee, but only for purposes of chapter 81 of this
title (relating to compensation for injury) and
sections 2671 through 2680 of title 28 (relating to
tort claims).
(e) This section may not be held or considered to prevent
or limit in any way the assignment to a handicapped employee
(including a blind or deaf employee) by an agency of clerical
or secretarial assistance, at the expense of the agency under
statutes and regulations currently applicable at the time, if
that assistance normally is provided, or authorized to be
provided, in that manner under currently applicable statutes
and regulations.
Sec. 3103. Employment at seat of Government only for services rendered
An individual may be employed in the civil service in an
Executive department at the seat of Government only for
services actually rendered in connection with and for the
purposes of the appropriation from which he is paid. An
individual who violates this section shall be removed from the
service.
Sec. 3104. Employment of specially qualified scientific and
professional personnel
(a) The Director of the Office of Personnel Management may
establish, and from time to time revise, the maximum number of
scientific or professional positions for carrying out research
and development functions which require the services of
specially qualified personnel which may be established outside
of the General Schedule. Any such position may be established
by action of the Director or, under such standards and
procedures as the Office prescribes (including procedures under
which the prior approval of the Director may be required), by
agency action.
(b) The provisions of subsection (a) of this section shall
not apply to any Senior Executive Service position (as defined
in section 3132(a) of this title).
(c) In addition to the number of positions authorized by
subsection (a) of this section, the Librarian of Congress may
establish, without regard to the second sentence of paragraph
(1) of this subsection, not more than 8 scientific or
professional positions to carry out the research and
development functions of the Library of Congress which require
the services of specially qualified personnel.
Sec. 3105. Appointment of administrative law judges
Each agency shall appoint as many administrative law judges
as are necessary for proceedings required to be conducted in
accordance with sections 556 and 557 of this title.
Administrative law judges shall be assigned to cases in
rotation so far as practicable, and may not perform duties
inconsistent with their duties and responsibilities as
administrative law judges.
Sec. 3106. Employment of attorneys; restrictions
Except as otherwise authorized by law, the head of an
Executive department or military department may not employ an
attorney or counsel for the conduct of litigation in which the
United States, an agency, or employee thereof is a party, or is
interested, or for the securing of evidence therefor, but shall
refer the matter to the Department of Justice. This section
does not apply to the employment and payment of counsel under
section 1037 of title 10.
Sec. 3107. Employment of publicity experts; restrictions
Appropriated funds may not be used to pay a publicity
expert unless specifically appropriated for that purpose.
Sec. 3108. Employment of detective agencies; restrictions
An individual employed by the Pinkerton Detective Agency,
or similar organization, may not be employed by the Government
of the United States or the government of the District of
Columbia.
Sec. 3109. Employment of experts and consultants; temporary or
intermittent
(a) For the purpose of this section--
(1) ``agency'' has the meaning given it by section
5721 of this title; and
(2) ``appropriation'' includes funds made available
by statute under section 9104 of title 31.
(b) When authorized by an appropriation or other statute,
the head of an agency may procure by contract the temporary
(not in excess of 1 year) or intermittent services of experts
or consultants or an organization thereof, including
stenographic reporting services. Services procured under this
section are without regard to--
(1) the provisions of this title governing
appointment in the competitive service;
(2) chapter 51 and subchapter III of chapter 53 of
this title; and
(3) section 5 of title 41, except in the case of
stenographic reporting services by an organization.
However, an agency subject to chapter 51 and subchapter III of
chapter 53 of this title may pay a rate for services under this
section in excess of the daily equivalent of the highest rate
payable under section 5332 of this title only when specifically
authorized by the appropriation or other statute authorizing
the procurement of the services.
(c) Positions in the Senior Executive Service or the
Federal Bureau of Investigation and Drug Enforcement
Administration Senior Executive Service may not be filled under
the authority of subsection (b) of this section.
(d) The Office of Personnel Management shall prescribe
regulations necessary for the administration of this section.
Such regulations shall include--
(1) criteria governing the circumstances in which
it is appropriate to employ an expert or consultant
under the provisions of this section;
(2) criteria for setting the pay of experts and
consultants under this section; and
(3) provisions to ensure compliance with such
regulations.
(e) Each agency shall report to the Office of Personnel
Management on an annual basis with respect to--
(1) the number of days each expert or consultant
employed by the agency during the period was so
employed; and
(2) the total amount paid by the agency to each
expert and consultant for such work during the period.
Sec. 3110. Employment of relatives; restrictions
(a) For the purpose of this section--
(1) agency means--
(A) an Executive agency;
(B) an office, agency, or other
establishment in the legislative branch;
(C) an office, agency, or other
establishment in the judicial branch; and
(D) the government of the District of
Columbia;
(2) ``public official'' means an officer (including
the President and a Member of Congress), a member of
the uniformed service, an employee and any other
individual, in whom is vested the authority by law,
rule, or regulation, or to whom the authority has been
delegated, to appoint, employ, promote, or advance
individuals, or to recommend individuals for
appointment, employment, promotion, or advancement in
connection with employment in an agency; and
(3) ``relative'' means, with respect to a public
official, an individual who is related to the public
official as father, mother, son, daughter, brother,
sister, uncle, aunt, first cousin, nephew, niece,
husband, wife, father-in-law, mother-in-law, son-in-
law, daughter-in-law, brother-in-law, sister-in-law,
stepfather, stepmother, stepson, stepdaughter,
stepbrother, stepsister, half brother, or half sister.
(b) A public official may not appoint, employ, promote,
advance, or advocate for appointment, employment, promotion, or
advancement, in or to a civilian position in the agency in
which he is serving or over which he exercises jurisdiction or
control any individual who is a relative of the public
official. An individual may not be appointed, employed,
promoted, or advanced in or to a civilian position in an agency
if such appointment, employment, promotion, or advancement has
been advocated by a public official, serving in or exercising
jurisdiction or control over the agency, who is a relative of
the individual.
(c) An individual appointed, employed, promoted, or
advanced in violation of this section is not entitled to pay,
and money may not be paid from the Treasury as pay to an
individual so appointed, employed, promoted, or advanced.
(d) The Office of Personnel Management may prescribe
regulations authorizing the temporary employment, in the event
of emergencies resulting from natural disasters or similar
unforeseen events or circumstances, of individuals whose
employment would otherwise be prohibited by this section.
(e) This section shall not be construed to prohibit the
appointment of an individual who is a preference eligible in
any case in which the passing over of that individual on a
certificate of eligibles furnished under section 3317(a) of
this title will result in the selection for appointment of an
individual who is not a preference eligible.
Sec. 3111. Acceptance of volunteer service
(a) For the purpose of this section, ``student'' means an
individual who is enrolled, not less than half-time, in a high
school, trade school, technical or vocational institute, junior
college, college, university, or comparable recognized
educational institution. An individual who is a student is
deemed not to have ceased to be a student during an interim
between school years if the interim is not more than 5 months
and if such individual shows to the satisfaction of the Office
of Personnel Management that the individual has a bona fide
intention of continuing to pursue a course of study or training
in the same or different educational institution during the
school semester (or other period into which the school year is
divided) immediately after the interim.
(b) Notwithstanding section 1342 of title 31, the head of
an agency may accept, subject to regulations issued by the
Office, voluntary service for the United States if the
service--
(1) is performed by a student, with the permission
of the institution at which the student is enrolled, as
part of an agency program established for the purpose
of providing educational experiences for the student;
(2) is to be uncompensated; and
(3) will not be used to displace any employee.
(c)(1) Except as provided in paragraph (2), any student who
provides voluntary service under subsection (b) of this section
shall not be considered a Federal employee for any purpose
other than for purposes of chapter 81 of this title (relating
to compensation for injury) and sections 2671 through 2680 of
title 28 (relating to tort claims).
(2) In addition to being considered a Federal employee for
the purposes specified in paragraph (1), any student who
provides voluntary service as part of a program established
under subsection (b) of this section in the Internal Revenue
Service, Department of the Treasury, shall be considered an
employee of the Department of the Treasury for purposes of--
(A) section 552a of this title (relating to
disclosure of records);
(B) subsections (a)(1), (h)(1), (k)(6), and (l)(4)
of section 6103 of title 26 (relating to
confidentiality and disclosure of returns and return
information);
(C) sections 7213(a)(1) and 7431 of title 26
(relating to unauthorized disclosures of returns and
return information by Federal employees and other
persons); and
(D) section 7423 of title 26 (relating to suits
against employees of the United States);
except that returns and return information (as defined in
section 6103(b) of title 26) shall be made available to
students under such program only to the extent that the
Secretary of the Treasury or his designee determines that the
duties assigned to such students so require.
Sec. 3112. Disabled veterans; noncompetitive appointment
Under such regulations as the Office of Personnel
Management shall prescribe, an agency may make a noncompetitive
appointment leading to conversion to career or career-
conditional employment of a disabled veteran who has a
compensable service-connected disability of 30 percent or more.
Sec. 3113. Restriction on reemployment after conviction of certain
crimes
An employee shall be separated from service and barred from
reemployment in the Federal service, if--
(1) the employee is convicted of a violation of
section 201(b) of title 18; and
(2) such violation related to conduct prohibited
under section 1010(a) of the Controlled Substances
Import and Export Act (21 U.S.C. 960(a)).
SUBCHAPTER II--THE SENIOR EXECUTIVE SERVICE
Sec. 3131. The Senior Executive Service
It is the purpose of this subchapter to establish a Senior
Executive Service to ensure that the executive management of
the Government of the United States is responsive to the needs,
policies, and goals of the Nation and otherwise is of the
highest quality. The Senior Executive Service shall be
administered so as to--
(1) provide for a compensation system, including
salaries, benefits, and incentives, and for other
conditions of employment, designed to attract and
retain highly competent senior executives;
(2) ensure that compensation, retention, and tenure
are contingent on executive success which is measured
on the basis of individual and organizational
performance (including such factors as improvements in
efficiency, productivity, quality of work or service,
cost efficiency, and timeliness of performance
and success in meeting equal employment opportunity
goals);
(3) assure that senior executives are accountable
and responsible for the effectiveness and productivity
of employees under them;
(4) recognize exceptional accomplishment;
(5) enable the head of an agency to reassign senior
executives to best accomplish the agency's mission;
(6) provide for severance pay, early retirement,
and placement assistance for senior executives who are
removed from the Senior Executive Service for
nondisciplinary reasons;
(7) protect senior executives from arbitrary or
capricious actions;
(8) provide for program continuity and policy
advocacy in the management of public programs;
(9) maintain a merit personnel system free of
prohibited personnel practices;
(10) ensure accountability for honest, economical,
and efficient Government;
(11) ensure compliance with all applicable civil
service laws, rules, and regulations, including those
related to equal employment opportunity, political
activity, and conflicts of interest;
(12) provide for the initial and continuing
systematic development of highly competent senior
executives;
(13) provide for an executive system which is
guided by the public interest and free from improper
political interference; and
(14) appoint career executives to fill Senior
Executive Service positions to the extent practicable,
consistent with the effective and efficient
implementation of agency policies and responsibilities.
Sec. 3132. Definitions and exclusions
(a) For the purpose of this subchapter--
(1) ``agency'' means an Executive agency, except a
Government corporation and the General Accounting
Office, but does not include--
(A) any agency or unit thereof excluded
from coverage by the President under subsection
(c) of this section; or
(B) the Federal Bureau of Investigation,
the Drug Enforcement Administration, the
Central Intelligence Agency, the Defense
Intelligence Agency, the National Imagery and
Mapping Agency, the National Security Agency,
Department of Defense intelligence activities
the civilian employees of which are subject to
section 1590 of title 10,, \1\ and, as
determined by the President, an Executive
agency, or unit thereof, whose principal
function is the conduct of foreign intelligence
or counterintelligence activities;
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\1\ So in law. See the amendment made by section 402(b) of Public
Law 102-476 which inserted ``, Department of Defense intelligence
activities the civilian employees of which are subject to section 1590
of title 10,'' after ``National Security Agency''.
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(C) the Federal Election Commission; or
(D) the Office of the Comptroller of the
Currency, the Office of Thrift Supervision, the
Federal Housing Finance Board, the Resolution
Trust Corporation, the Farm Credit
Administration, the Office of Federal Housing
Enterprise Oversight of the Department of
Housing and Urban Development, and the National
Credit Union Administration;
(2) ``Senior Executive Service position'' means any
position in an agency which is classified above GS-15
pursuant to section 5108 or in level IV or V of the
Executive Schedule, or an equivalent position, which is
not required to be filled by an appointment by the
President by and with the advice and consent of the
Senate, and in which an employee--
(A) directs the work of an organizational
unit;
(B) is held accountable for the success of
one or more specific programs or projects;
(C) monitors progress toward organizational
goals and periodically evaluates and makes
appropriate adjustments to such goals;
(D) supervises the work of employees other
than personal assistants; or
(E) otherwise exercises important policy-
making, policy-determining, or other executive
functions;
but does not include--
(i) any position in the Foreign Service of
the United States; or
(ii) an administrative law judge position
under section 3105 of this title;
(3) ``senior executive'' means a member of the
Senior Executive Service;
(4) ``career appointee'' means an individual in a
Senior Executive Service position whose appointment to
the position or previous appointment to another Senior
Executive Service position was based on approval by the
Office of Personnel Management of the executive
qualifications of such individual;
(5) ``limited term appointee'' means an individual
appointed under a nonrenewable appointment for a term
of 3 years or less to a Senior Executive Service
position the duties of which will expire at the end of
such term;
(6) ``limited emergency appointee'' means an
individual appointed under a nonrenewable appointment,
not to exceed 18 months, to a Senior Executive Service
position established to meet a bona fide,
unanticipated, urgent need;
(7) ``noncareer appointee'' means an individual in
a Senior Executive Service position who is not a career
appointee, a limited term appointee, or a limited
emergency appointee;
(8) ``career reserved position'' means a position
which is required to be filled by a career appointee
and which is designated under subsection (b) of this
section; and
(9) ``general position'' means any position, other
than a career reserved position, which may be filled by
either a career appointee, noncareer appointee, limited
emergency appointee, or limited term appointee.
(b)(1) For the purpose of paragraph (8) of subsection (a)
of this section, the Office shall prescribe the criteria and
regulations governing the designation of career reserved
positions. The criteria and regulations shall provide that a
position shall be designated as a career reserved position only
if the filling of the position by a career appointee is
necessary to ensure impartiality, or the public's confidence in
the impartiality, of the Government. The head of each agency
shall be responsible for designating career reserved positions
in such agency in accordance with such criteria and
regulations.
(2) The Office shall periodically review general positions
to determine whether the positions should be designated as
career reserved. If the Office determines that any such
position should be so designated, it shall order the agency to
make the designation.
(3) Notwithstanding the provisions of any other law, any
position to be designated as a Senior Executive Service
position (except a position in the Executive Office of the
President) which--
(A) is under the Executive Schedule, or for which
the rate of basic pay is determined by reference to the
Executive Schedule, and
(B) on the day before the date of the enactment of
the Civil Service Reform Act of 1978 was specifically
required under section 2102 of this title or otherwise
required by law to be in the competitive service,
shall be designated as a career reserved position if the
position entails direct responsibility to the public for the
management or operation of particular government programs or
functions.
(4) Not later than March 1 of each year, the head of each
agency shall publish in the Federal Register a list of
positions in the agency which were career reserved positions
during the preceding calendar year.
(c) An agency may file an application with the Office
setting forth reasons why it, or a unit thereof, should be
excluded from the coverage of this subchapter. The Office
shall--
(1) review the application and stated reasons,
(2) undertake a review to determine whether the
agency or unit should be excluded from the coverage of
this subchapter, and
(3) upon completion of its review, recommend to the
President whether the agency or unit should be excluded
from the coverage of this subchapter.
If the Office recommends that an agency or unit thereof be
excluded from the coverage of this subchapter, the President
may, on written determination, make the exclusion for the
period determined by the President to be appropriate.
(d) Any agency or unit which is excluded from coverage
under subsection (c) of this section shall make a sustained
effort to bring its personnel system into conformity with the
Senior Executive Service to the extent practicable.
(e) The Office may at any time recommend to the President
that any exclusion previously granted to an agency or unit
thereof under subsection (c) of this section be revoked. Upon
recommendation of the Office, the President may revoke, by
written determination, any exclusion made under subsection (c)
of this section.
(f) If--
(1) any agency is excluded under subsection (c) of
this section, or
(2) any exclusion is revoked under subsection (e)
of this section,
the Office shall, within 30 days after the action, transmit to
the Congress written notice of the exclusion or revocation.
Sec. 3133. Authorization of positions; authority for appointment
(a) During each even-numbered calendar year, each agency
shall--
(1) examine its needs for Senior Executive Service
positions for each of the 2 fiscal years beginning
after such calendar year; and
(2) submit to the Office of Personnel Management a
written request for a specific number of Senior
Executive Service positions for each of such fiscal
years.
(b) Each agency request submitted under subsection (a) of
this section shall--
(1) be based on the anticipated type and extent of
program activities and budget requests of the agency
for each of the 2 fiscal years involved, and such other
factors as may be prescribed from time to time by the
Office; and
(2) identify, by position title, positions which
are proposed to be designated as or removed from
designation as career reserved positions, and set forth
justifications for such proposed actions.
(c) The Office of Personnel Management, in consultation
with the Office of Management and Budget, shall review the
request of each agency and shall authorize, for each of the 2
fiscal years covered by requests required under subsection (a)
of this section, a specific number of Senior Executive Service
positions for each agency.
(d)(1) The Office of Personnel Management may, on a written
request of an agency or on its own initiative, make an
adjustment in the number of positions authorized for any
agency. Each agency request under this paragraph shall be
submitted in such form, and shall be based on such factors, as
the Office shall prescribe.
(2) The total number of positions in the Senior Executive
Service may not at any time during any fiscal year exceed 105
percent of the total number of positions authorized under
subsection (c) of this section for such fiscal year.
(e)(1) Not later than July 1, 1979, and from time to time
thereafter as the Director of the Office of Personnel
Management finds appropriate, the Director shall establish, by
rule issued in accordance with section 1103(b) of this title,
the number of positions out of the total number of positions in
the Senior Executive Service, as authorized by this section or
section 413 of the Civil Service Reform Act of 1978, which are
to be career reserved positions. Except as provided in
paragraph (2) of this subsection, the number of positions
required by this subsection to be career reserved positions
shall not be less than the number of the positions then in the
Senior Executive Service which before the date of such Act,
were authorized to be filled only through competitive civil
service examination.
(2) The Director may, by rule, designate a number of career
reserved positions which is less than the number required by
paragraph (1) of this subsection only if the Director
determines such lesser number necessary in order to designate
as general positions one or more positions (other than
positions described in section 3132(b)(3) of this title)
which--
(A) involve policymaking responsibilities which
require the advocacy or management of programs of the
President and support of controversial aspects of such
programs;
(B) involve significant participation in the major
political policies of the President; or
(C) require the senior executives in the positions
to serve as personal assistants of, or advisers to,
Presidential appointees.
The Director shall provide a full explanation for his
determination in each case.
Sec. 3134. Limitations on noncareer and limited appointments
(a) During each calendar year, each agency shall--
(1) examine its needs for employment of noncareer
appointees for the fiscal year beginning in the
following year; and
(2) submit to the Office of Personnel Management,
in accordance with regulations prescribed by the
Office, a written request for authority to employ a
specific number of noncareer appointees for such fiscal
year.
(b) The number of noncareer appointees in each agency shall
be determined annually by the Office on the basis of
demonstrated need of the agency. The total number of noncareer
appointees in all agencies may not exceed 10 percent of the
total number of Senior Executive Service positions in all
agencies.
(c) Subject to the 10 percent limitation of subsection (b)
of this section, the Office may adjust the number of noncareer
positions authorized for any agency under subsection (b) of
this section if emergency needs arise that were not anticipated
when the original authorizations were made.
(d) The number of Senior Executive Service positions in any
agency which are filled by noncareer appointees may not at any
time exceed the greater of--
(1) 25 percent of the total number of Senior
Executive Service positions in the agency; or
(2) the number of positions in the agency which
were filled on the date of the enactment of the Civil
Service Reform Act of 1978 by--
(A) noncareer executive assignments under
subpart F of part 305 of title 5, Code of
Federal Regulations, as in effect on such date,
or
(B) appointments to level IV or V of the
Executive Schedule which were not required on
such date to be made by and with the advice and
consent of the Senate.
This subsection shall not apply in the case of any agency
having fewer than 4 Senior Executive Service positions.
(e) The total number of limited emergency appointees and
limited term appointees in all agencies may not exceed 5
percent of the total number of Senior Executive Service
positions in all agencies.
[Sec. 3135. Repealed. Pub. L. 104-66, Sec. 2181(a)(1), Dec. 21, 1995,
109 Stat. 732.]
Sec. 3136. Regulations
The Office of Personnel Management shall prescribe
regulations to carry out the purpose of this subchapter.
SUBCHAPTER III--THE FEDERAL BUREAU OF INVESTIGATION AND DRUG
ENFORCEMENT ADMINISTRATION SENIOR EXECUTIVE SERVICE
Sec. 3151. The Federal Bureau of Investigation and Drug Enforcement
Administration Senior Executive Service
(a) The Attorney General may by regulation establish a
personnel system for senior personnel within the Federal Bureau
of Investigation and the Drug Enforcement Administration to be
known as the Federal Bureau of Investigation and the Drug
Enforcement Administration Senior Executive Service
(hereinafter in this subchapter referred to as the ``FBI-DEA
Senior Executive Service''). The regulations establishing the
FBI-DEA Senior Executive Service shall--
(1) meet the requirements set forth in section 3131
for the Senior Executive Service;
(2) provide that positions in the FBI-DEA Senior
Executive Service meet requirements that are consistent
with the provisions of section 3132(a)(2);
(3) provide rates of pay for the FBI-DEA Senior
Executive Service that are not in excess of the maximum
rate or less than the minimum rate of basic pay
established for the Senior Executive Service under
section 5382 and that are adjusted at the same time and
to the same extent as rates of basic pay for the Senior
Executive Service are adjusted;
(4) provide a performance appraisal system for the
FBI-DEA Senior Executive Service that conforms to the
provisions of subchapter II of chapter 43;
(5) provide for--
(A) removal consistent with section 3592;
(B) reduction-in-force procedures
consistent with section 3595(a), together with
measures to ensure that a member of the FBI-DEA
Senior Executive Service may not be removed due
to a reduction in force unless reasonable
efforts to place such member in another such
position are first taken;
(C) procedures in accordance with which any
furlough affecting the FBI-DEA Senior Executive
Service shall be carried out;
(D) removal or suspension consistent with
subsections (a), (b), and (c) of section 7543
(except that any hearing or appeal to which a
member of the FBI-DEA Senior Executive Service
is entitled shall be held or decided pursuant
to procedures established by regulations of the
Attorney General); and
(E) recertification consistent with section
3393a;
(6) permit the payment of performance awards to
members of the FBI-DEA Senior Executive Service
consistent with the provisions applicable to
performance awards under section 5384; and
(7) provide that members of the FBI-DEA Senior
Executive Service may be granted sabbatical leaves
consistent with the provisions of section 3396(c).
(b)(1) Except as provided in subsection (a), the Attorney
General may--
(A) make applicable to the FBI-DEA Senior Executive
Service any of the provisions of this title applicable
to applicants for or members of the Senior Executive
Service; and
(B) appoint, promote, and assign individuals to
positions established within the FBI-DEA Senior
Executive Service without regard to the provisions of
this title governing appointments and other personnel
actions in the competitive service.
(2)(A) Notwithstanding any other provision of this section,
an individual may not be selected for the FBI-DEA Senior
Executive Service unless such individual is a career employee
in the civil service.
(B) For the purpose of subparagraph (A), ``career employee
in the civil service'' shall have such meaning as the Attorney
General, in consultation with the Director of the Office of
Personnel Management, by regulation prescribes.
(c) The President, based on the recommendations of the
Attorney General, may award ranks to members of the FBI-DEA
Senior Executive Service in a manner consistent with the
provisions of section 4507.
(d) Notwithstanding any other provision of this section,
the Attorney General may detail or assign any member of the
FBI-DEA Senior Executive Service to serve in a position outside
the Federal Bureau of Investigation or the Drug Enforcement
Administration (as the case may be) in which the member's
expertise and experience may be of benefit to the Federal
Bureau of Investigation or the Drug Enforcement Administration
(as the case may be) or another Government agency. Any such
member shall not by reason of such detail or assignment lose
any entitlement or status associated with the membership in the
FBI-DEA Senior Executive Service.
(e) The Attorney General shall each year submit to
Congress, at the time the budget is submitted by the President
to the Congress for the next fiscal year, a report on the FBI-
DEA Senior Executive Service. The report shall include, in the
aggregate and by agency--
(1) the number of FBI-DEA Senior Executive Service
positions established as of the end of the preceding
fiscal year;
(2) the number of individuals being paid at each
rate of basic pay for the FBI-DEA Senior Executive
Service as of the end of the preceding fiscal year;
(3) the number, distribution, and amount of awards
paid to members of the FBI-DEA Senior Executive Service
during the preceding fiscal year; and
(4) the number of individuals removed from the FBI-
DEA Senior Executive Service during the preceding
fiscal year--
(A) for less than fully successful
performance;
(B) due to a reduction in force; or
(C) for any other reason.
Sec. 3152. Limitation on pay
Members of the FBI-DEA Senior Executive Service shall be
subject to the limitation under section 5307.
SUBCHAPTER IV--TEMPORARY ORGANIZATIONS ESTABLISHED BY LAW OR EXECUTIVE
ORDER
Sec. 3161. Employment and compensation of employees
(a) Definition of Temporary Organization.--For the purposes
of this subchapter, the term ``temporary organization'' means a
commission, committee, board, or other organization that--
(1) is established by law or Executive order for a
specific period not in excess of three years for the
purpose of performing a specific study or other
project; and
(2) is terminated upon the completion of the study
or project or upon the occurrence of a condition
related to the completion of the study or project.
(b) Employment Authority.--(1) Notwithstanding the
provisions of chapter 51 of this title, the head of a temporary
organization may appoint persons to positions of employment in
a temporary organization in such numbers and with such skills
as are necessary for the performance of the functions required
of a temporary organization.
(2) The period of an appointment under paragraph (1) may
not exceed three years, except that under regulations
prescribed by the Office of Personnel Management the period of
appointment may be extended for up to an additional two years.
(3) The positions of employment in a temporary organization
are in the excepted service of the civil service.
(c) Detail Authority.--Upon the request of the head of a
temporary organization, the head of any department or agency of
the Government may detail, on a nonreimbursable basis, any
personnel of the department or agency to that organization to
assist in carrying out its duties.
(d) Compensation.--(1) The rate of basic pay for an
employee appointed under subsection (b) shall be established
under regulations prescribed by the Office of Personnel
Management without regard to the provisions of chapter 51 and
subchapter III of chapter 53 of this title.
(2) The rate of basic pay for the chairman, a member, an
executive director, a staff director, or another executive
level position of a temporary organization may not exceed the
maximum rate of basic pay established for the Senior Executive
Service under section 5382 of this title.
(3) Except as provided in paragraph (4), the rate of basic
pay for other positions in a temporary organization may not
exceed the maximum rate of basic pay for grade GS-15 of the
General Schedule under section 5332 of this title.
(4) The rate of basic pay for a senior staff position of a
temporary organization may, in a case determined by the head of
the temporary organization as exceptional, exceed the maximum
rate of basic pay authorized under paragraph (3), but may not
exceed the maximum rate of basic pay authorized for an
executive level position under paragraph (2).
(5) In this subsection, the term ``basic pay'' includes
locality pay provided for under section 5304 of this title.
(e) Travel Expenses.--An employee of a temporary
organization, whether employed on a full-time or part-time
basis, may be allowed travel and transportation expenses,
including per diem in lieu of subsistence, at rates authorized
for employees of agencies under subchapter I of chapter 57 of
this title, while traveling away from the employee's regular
place of business in the performance of services for the
temporary organization.
(f ) Benefits.--An employee appointed under subsection (b)
shall be afforded the same benefits and entitlements as are
provided temporary employees under this title.
(g) Return Rights.--An employee serving under a career or
career conditional appointment or the equivalent in an agency
who transfers to or converts to an appointment in a temporary
organization with the consent of the head of the agency is
entitled to be returned to the employee's former position or a
position of like seniority, status, and pay without grade or
pay retention in the agency if the employee--
(1) is being separated from the temporary
organization for reasons other than misconduct, neglect
of duty, or malfeasance; and
(2) applies for return not later than 30 days
before the earlier of--
(A) the date of the termination of the
employment in the temporary organization; or
(B) the date of the termination of the
temporary organization.
(h) Temporary and Intermittent Services.--The head of a
temporary organization may procure for the organization
temporary and intermittent services under section 3109(b) of
this title.
(i) Acceptance of Volunteer Services.--(1) The head of a
temporary organization may accept volunteer services
appropriate to the duties of the organization without regard to
section 1342 of title 31.
(2) Donors of voluntary services accepted for a temporary
organization under this subsection may include the following:
(A) Advisors.
(B) Experts.
(C) Members of the commission, committee, board, or
other temporary organization, as the case may be.
(D) A person performing services in any other
capacity determined appropriate by the head of the
temporary organization.
(3) The head of the temporary organization--
(A) shall ensure that each person performing
voluntary services accepted under this subsection is
notified of the scope of the voluntary services
accepted;
(B) shall supervise the volunteer to the same
extent as employees receiving compensation for similar
services; and
(C) shall ensure that the volunteer has appropriate
credentials or is otherwise qualified to perform in
each capacity for which the volunteer's services are
accepted.
(4) A person providing volunteer services accepted under
this subsection shall be considered an employee of the Federal
Government in the performance of those services for the
purposes of the following provisions of law:
(A) Chapter 81 of this title, relating to
compensation for work-related injuries.
(B) Chapter 171 of title 28, relating to tort
claims.
(C) Chapter 11 of title 18, relating to conflicts
of interest.
CHAPTER 33--EXAMINATION, SELECTION, AND PLACEMENT
SUBCHAPTER I--EXAMINATION, CERTIFICATION, AND APPOINTMENT
Sec.
3301. Civil service; generally.
3302. Competitive service; rules.
3303. Competitive service; recommendations of Senators or
Representatives.
3304. Competitive service; examinations.
3304a. Competitive service; career appointment after 3 years'
temporary service.
3305. Competitive service; examinations; when held.
[3306. Repealed.]
3307. Competitive service; maximum-age entrance requirements;
exceptions.
3308. Competitive service; examinations; educational requirements
prohibited; exceptions.
3309. Preference eligibles; examinations; additional points for.
3310. Preference eligibles; examinations; guards, elevator operators,
messengers, and custodians.
3311. Preference eligibles; examinations; crediting experience.
3312. Preference eligibles; physical qualifications; waiver.
3313. Competitive service; registers of eligibles.
3314. Registers; preference eligibles who resigned.
3315. Registers; preference eligibles furloughed or separated.
[3315a. Repealed.]
3316. Preference eligibles; reinstatement.
3317. Competitive service; certification from registers.
3318. Competitive service; selection from certificates.
[3319. Repealed.]
3320. Excepted service; government of the District of Columbia;
selection.
3321. Competitive service; probationary period.
[3322. Repealed.]
3323. Automatic separations; reappointment; reemployment of
annuitants.
3324. Appointments to positions classified above GS-15.
3325. Appointments to scientific and professional positions.
3326. Appointments of retired members of the armed forces to
positions in the Department of Defense.
3327. Civil service employment information.
3328. Selective Service registration.
3329. Appointments of military reserve technicians to positions in
the competitive service.
3330. Government-wide list of vacant positions.
3330a. Preference eligibles; administrative redress.
3330b. Preference eligibles; judicial redress.
3330c. Preference eligibles; remedy.
SUBCHAPTER II--OATH OF OFFICE
3331. Oath of office.
3332. Officer affidavit; no consideration paid for appointment.
3333. Employee affidavit; loyalty and striking against the
Government.
SUBCHAPTER III--DETAILS, VACANCIES, AND APPOINTMENTS
3341. Details; within Executive or military departments.
[3342. Repealed.]
3343. Details; to international organizations.
3344. Details; administrative law judges.
3345. Acting officer.
3346. Time limitation.
3347. Exclusivity.
3348. Vacant office.
3349. Reporting of vacancies.
3349a. Presidential inaugural transitions.
3349b. Holdover provisions relating to certain independent
establishments.\1\
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\1\ Catchline does not conform to section heading.
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3349c. Exclusion of certain officers.
3349d. Notification of intent to nominate during certain recesses or
adjournments.
SUBCHAPTER IV--TRANSFERS
3351. Preference eligibles; transfer; physical qualifications;
waiver.
3352. Preference in transfers for employees making certain
disclosures.
SUBCHAPTER V--PROMOTION
3361. Promotion; competitive service; examination.
3362. Promotion; effect of incentive award.
3363. Preference eligibles; promotion; physical qualifications;
waiver.
[3364. Repealed.]
SUBCHAPTER VI--ASSIGNMENTS TO AND FROM STATES
3371. Definitions.
3372. General provisions.
3373. Assignments of employees to State or local governments.\1\
3374. Assignments of employees from State or local governments.
3375. Travel expenses.
3376. Regulations.
SUBCHAPTER VII--AIR TRAFFIC CONTROLLERS
3381. Training.
3382. Involuntary separation for retirement.
3383. Determinations; review procedures.
3384. Regulations.
3385. Effect on other authority.
SUBCHAPTER VIII--APPOINTMENT, REASSIGNMENT, TRANSFER, AND DEVELOPMENT IN
THE SENIOR EXECUTIVE SERVICE
3391. Definitions.
3392. General appointment provisions.
3393. Career appointments.
3393a. Recertification.
3394. Noncareer and limited appointments.
3395. Reassignment and transfer within the Senior Executive Service.
3396. Development for and within the Senior Executive Service.
3397. Regulations.
SUBCHAPTER I--EXAMINATION, CERTIFICATION, AND APPOINTMENT
Sec. 3301. Civil service; generally
The President may--
(1) prescribe such regulations for the admission of
individuals into the civil service in the executive
branch as will best promote the efficiency of that
service;
(2) ascertain the fitness of applicants as to age,
health, character, knowledge, and ability for the
employment sought; and
(3) appoint and prescribe the duties of individuals
to make inquiries for the purpose of this section.
Sec. 3302. Competitive service; rules
The President may prescribe rules governing the competitive
service. The rules shall provide, as nearly as conditions of
good administration warrant, for--
(1) necessary exceptions of positions from the
competitive service; and
(2) necessary exceptions from the provisions of
sections 2951, 3304(a), 3321, 7202, and 7203 of this
title.
Each officer and individual employed in an agency to which the
rules apply shall aid in carrying out the rules.
Sec. 3303. Competitive service; recommendations of Senators or
Representatives
An individual concerned in examining an applicant for or
appointing him in the competitive service may not receive or
consider a recommendation of the applicant by a Senator or
Representative, except as to the character or residence of the
applicant.
Sec. 3304. Competitive service; examinations
(a) The President may prescribe rules which shall provide,
as nearly as conditions of good administration warrant, for--
(1) open, competitive examinations for testing
applicants for appointment in the competitive service
which are practical in character and as far as possible
relate to matters that fairly test the relative
capacity and fitness of the applicants for the
appointment sought; and
(2) noncompetitive examinations when competent
applicants do not compete after notice has been given
of the existence of the vacancy.
(b) An individual may be appointed in the competitive
service only if he has passed an examination or is specifically
excepted from examination under section 3302 of this title.
This subsection does not take from the President any authority
conferred by section 3301 of this title that is consistent with
the provisions of this title governing the competitive service.
(c)(1) For the purpose of this subsection, the term
``technician'' has the meaning given such term by section
8337(h)(1) of this title.
(2) Notwithstanding a contrary provision of this title or
of the rules and regulations prescribed under this title for
the administration of the competitive service, an individual
who served for at least 3 years as a technician acquires a
competitive status for transfer to the competitive service if
such individual--
(A) is involuntarily separated from service as a
technician other than by removal for cause on changes
of misconduct or delinquency;
(B) passes a suitable noncompetitive examination;
and
(C) transfers to the competitive service within 1
year after separating from service as a technician.
(d) The Office of Personnel Management shall promulgate
regulations on the manner and extent that experience of an
individual in a position other than the competitive service,
such as the excepted service (as defined under section 2103) in
the legislative or judicial branch, or in any private or
nonprofit enterprise, may be considered in making appointments
to a position in the competitive service (as defined under
section 2102). In promulgating such regulations OPM shall not
grant any preference based on the fact of service in the
legislative or judicial branch. The regulations shall be
consistent with the principles of equitable competition and
merit based appointments.
(e) Employees at any place outside the District of Columbia
where the President or the Office of Personnel Management
directs that examinations be held shall allow the reasonable
use of public buildings for, and in all proper ways facilitate,
holding the examinations.
(f)(1) Preference eligibles or veterans who have been
separated from the armed forces under honorable conditions
after 3 years or more of active service may not be denied the
opportunity to compete for vacant positions for which the
agency making the announcement will accept applications from
individuals outside its own workforce under merit promotion
procedures.
(2) If selected, a preference eligible or veteran described
in paragraph (1) shall receive a career or career-conditional
appointment, as appropriate.
(3) This subsection shall not be construed to confer an
entitlement to veterans' preference that is not otherwise
required by law.
(4) The area of consideration for all merit promotion
announcements which include consideration of individuals of the
Federal workforce shall indicate that preference eligibles and
veterans who have been separated from the armed forces under
honorable conditions after 3 years or more of active service
are eligible to apply. The announcements shall be publicized in
accordance with section 3327.
(5) The Office of Personnel Management shall prescribe
regulations necessary for the administration of this
subsection. The regulations shall ensure that an individual who
has completed an initial tour of active duty is not excluded
from the application of this subsection because of having been
released from such tour of duty shortly before completing 3
years of active service, having been honorably released from
such duty.
Sec. 3304a. Competitive service; career appointment after 3 years'
temporary service
(a) An individual serving in a position in the competitive
service under an indefinite appointment or a temporary
appointment pending establishment of a register (other than an
individual serving under an overseas limited appointment, or in
GS-16, GS-17, or GS-18) \1\ acquires competitive status and is
entitled to have his appointment converted to a career
appointment, without condition, when--
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\1\ Section 101(b)(9)(B) of Public Law 101-509 (104 Stat. 1441)
provided for an amendment to this subsection which could not be
executed.
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(1) he completes, without break in service of more
than 30 days, a total of at least 3 years of service in
such a position;
(2) he passes a suitable noncompetitive
examination;
(3) the appointing authority (A) recommends to the
Office of Personnel Management that the appointment of
the individual be converted to a career appointment and
(B) certifies to the Office that the work performance
of the individual for the past 12 months has been
satisfactory; and
(4) he meets Office qualification requirements for
the position and is otherwise eligible for career
appointment.
(b) The employing agency shall terminate the appointment of
an individual serving in a position in the competitive service
under an indefinite or temporary appointment described in
subsection (a) of this section, not later than 90 days after he
has completed the 3-year period referred to in subsection
(a)(1) of this section, if, prior to the close of such 90-day
period, such individual has not met the requirements and
conditions of subparagraphs (2) to (4), inclusive, of
subsection (a) of this section.
(c) In computing years of service under subsection (a)(1)
of this section for an individual who leaves a position in the
competitive service to enter the armed forces and is reemployed
in such a position within 120 days after separation under
honorable conditions, the period from the date he leaves his
position to the date he is reemployed is included.
(d) The Office of Personnel Management may prescribe
regulations necessary for the administration of this section.
Sec. 3305. Competitive service; examinations; when held
(a) The Office of Personnel Management shall hold
examinations for the competitive service at least twice a year
in each State and territory or possession of the United States
where there are individuals to be examined.
(b) The Office shall hold an examination for a position to
which an appointment has been made within the preceding 3
years, on the application of an individual who qualifies as a
preference eligible under section 2108(3)(C)-(G) of this title.
The examination shall be held during the quarter following the
application.
[Sec. 3306. Repealed. Pub. L. 95-228, Sec. 1, Feb. 10, 1978, 92 Stat.
25.]
Sec. 3307. Competitive service; maximum-age entrance requirements;
exceptions
(a) Except as provided in subsections (b), (c), (d), (e),
and (f) of this section appropriated funds may not be used to
pay an employee who establishes a maximum-age requirement for
entrance into the competitive service.
(b) The Secretary may, with the concurrence of such agent
as the President may designate, determine and fix the maximum
limit of age within which an original appointment to a position
as an air traffic controller may be made.
(c) The Secretary of the Interior may determine and fix the
minimum and maximum limits of age within which original
appointments to the United States Park Police may be made.
(d) The head of any agency may determine and fix the
minimum and maximum limits of age within which an original
appointment may be made to a position as a law enforcement
officer or firefighter, as defined by section 8331(20) and
(21), respectively, of this title.
(e) The head of an agency may determine and fix the maximum
age limit for an original appointment to a position as a
firefighter or law enforcement officer, as defined by section
8401 (14) or (17), respectively, of this title.
(f ) The Secretary of Energy may determine and fix the
maximum age limit for an original appointment to a position as
a nuclear materials courier, as defined by section 8331(27) or
8401(33).
Sec. 3308. Competitive service; examinations; educational requirements
prohibited; exceptions
The Office of Personnel Management or other examining
agency may not prescribe a minimum educational requirement for
an examination for the competitive service except when the
Office decides that the duties of a scientific, technical, or
professional position cannot be performed by an individual who
does not have a prescribed minimum education. The Office shall
make the reasons for its decision under this section a part of
its public records.
Sec. 3309. Preference eligibles; examinations; additional points for
A preference eligible who receives a passing grade in an
examination for entrance into the competitive service is
entitled to additional points above his earned rating, as
follows--
(1) a preference eligible under section 2108(3)(C)-
(G) of this title--10 points; and
(2) a preference eligible under section 2108(3)(A)-
(B) of this title--5 points.
Sec. 3310. Preference eligibles; examinations; guards, elevator
operators, messengers, and custodians
In examinations for positions of guards, elevator
operators, messengers, and custodians in the competitive
service, competition is restricted to preference eligibles as
long as preference eligibles are available.
Sec. 3311. Preference eligibles; examinations; crediting experience
In examinations for the competitive service in which
experience is an element of qualification, a preference
eligible is entitled to credit--
(1) for service in the armed forces when his
employment in a similar vocation to that for which
examined was interrupted by the service; and
(2) for all experience material to the position for
which examined, including experience gained in
religious, civic, welfare, service, and organizational
activities, regardless of whether he received pay
therefor.
Sec. 3312. Preference eligibles; physical qualifications; waiver
(a) In determining qualifications of a preference eligible
for examination for, appointment in, or reinstatement in the
competitive service, the Office of Personnel Management or
other examining agency shall waive--
(1) requirements as to age, height, and weight,
unless the requirement is essential to the performance
of the duties of the position; and
(2) physical requirements if, in the opinion of the
Office or other examining agency, after considering the
recommendation of an accredited physician, the
preference eligible is physically able to perform
efficiently the duties of the position.
(b) If an examining agency determines that, on the basis of
evidence before it, a preference eligible under section
2108(3)(C) of this title who has a compensable service-
connected disability of 30 percent or more is not able to
fulfill the physical requirements of the position, the
examining agency shall notify the Office of the determination
and, at the same time, the examining agency shall notify the
preference eligible of the reasons for the determination and of
the right to respond, within 15 days of the date of the
notification, to the Office. The Office shall require a
demonstration by the appointing authority that the notification
was timely sent to the preference eligible's last known address
and shall, before the selection of any other person for the
position, make a final determination on the physical ability of
the preference eligible to perform the duties of the position,
taking into account any additional information provided in any
such response. When the Office has completed its review of the
proposed disqualification on the basis of physical disability,
it shall send its findings to the appointing authority and the
preference eligible. The appointing authority shall comply with
the findings of the Office. The functions of the Office under
this subsection may not be delegated.
Sec. 3313. Competitive service; registers of eligibles
The names of applicants who have qualified in examinations
for the competitive service shall be entered on appropriate
registers or lists of eligibles in the following order--
(1) for scientific and professional positions in
GS-9 or higher, in the order of their ratings,
including points added under section 3309 of this
title; and
(2) for all other positions--
(A) disabled veterans who have a
compensable service-connected disability of 10
percent or more, in order of their ratings,
including points added under section 3309 of
this title; and
(B) remaining applicants, in the order of
their ratings, including points added under
section 3309 of this title.
The names of preference eligibles shall be entered ahead of
others having the same rating.
Sec. 3314. Registers; preference eligibles who resigned
A preference eligible who resigns, on request to the Office
of Personnel Management, is entitled to have his name placed
again on all registers for which he may have been qualified, in
the order named by section 3313 of this title.
Sec. 3315. Registers; preference eligibles furloughed or separated
(a) A preference eligible who has been separated or
furloughed without delinquency or misconduct, on request, is
entitled to have his name placed on appropriate registers and
employment lists for every position for which his
qualifications have been established, in the order named by
section 3313 of this title. This subsection applies to
registers and employment lists maintained by the Office of
Personnel Management, an executive agency, or the government of
the District of Columbia.
(b) The Office may declare a preference eligible who has
been separated or furloughed without pay under section 7512 of
this title to be entitled to the benefits of subsection (a) of
this section.
[Sec. 3315a. Repealed. Pub. L. 93-416, Sec. 22(c), Sept. 7, 1974, 88
Stat. 1150.]
Sec. 3316. Preference eligibles; reinstatement
On request of an appointing authority, a preference
eligible who has resigned or who has been dismissed or
furloughed may be certified for, and appointed to, a position
for which he is eligible in the competitive service, an
Executive agency, or the government of the District of
Columbia.
Sec. 3317. Competitive service; certification from registers
(a) The Office of Personnel Management shall certify enough
names from the top of the appropriate register to permit a
nominating or appointing authority who has requested a
certificate of eligibles to consider at least three names for
appointment to each vacancy in the competitive service.
(b) When an appointing authority, for reasons considered
sufficient by the Office, has three times considered and passed
over a preference eligible who was certified from a register,
certification of the preference eligible for appointment may be
discontinued. However, the preference eligible is entitled to
advance notice of discontinuance of certification.
Sec. 3318. Competitive service; selection from certificates
(a) The nominating or appointing authority shall select for
appointment to each vacancy from the highest three eligibles
available for appointment on the certificate furnished under
section 3317(a) of this title, unless objection to one or more
of the individuals certified is made to, and sustained by, the
Office of Personnel Management for proper and adequate reason
under regulations prescribed by the Office.
(b)(1) If an appointing authority proposes to pass over a
preference eligible on a certificate in order to select an
individual who is not a preference eligible, such authority
shall file written reasons with the Office for passing over the
preference eligible. The Office shall make the reasons
presented by the appointing authority part of the record of the
preference eligible and may require the submission of more
detailed information from the appointing authority in support
of the passing over of the preference eligible. The Office
shall determine the sufficiency or insufficiency of the reasons
submitted by the appointing authority, taking into account any
response received from the preference eligible under paragraph
(2) of this subsection. When the Office has completed its
review of the proposed passover, it shall send its findings to
the appointing authority and to the preference eligible. The
appointing authority shall comply with the findings of the
Office.
(2) In the case of a preference eligible described in
section 2108(3)(C) of this title who has a compensable service-
connected disability of 30 percent or more, the appointing
authority shall at the same time it notifies the Office under
paragraph (1) of this subsection, notify the preference
eligible of the proposed passover, of the reasons therefor, and
of his right to respond to such reasons to the Office within 15
days of the date of such notification. The Office shall, before
completing its review under paragraph (1) of this subsection,
require a demonstration by the appointing authority that the
passover notification was timely sent to the preference
eligible's last known address.
(3) A preference eligible not described in paragraph (2) of
this subsection, or his representative, shall be entitled, on
request, to a copy of--
(A) the reasons submitted by the appointing
authority in support of the proposed passover, and
(B) the findings of the Office.
(4) In the case of a preference eligible described in
paragraph (2) of this subsection, the functions of the Office
under this subsection may not be delegated.
(c) When three or more names of preference eligibles are on
a reemployment list appropriate for the position to be filled,
a nominating or appointing authority may appoint from a
register of eligibles established after examination only an
individual who qualifies as a preference eligible under section
2108(3)(C)-(G) of this title.
[Sec. 3319. Repealed. Pub. L. 95-454, title III, Sec. 307(h)(1), Oct.
13, 1978, 92 Stat. 1149.]
Sec. 3320. Excepted service; government of the District of Columbia;
selection
The nominating or appointing authority shall select for
appointment to each vacancy in the excepted service in the
executive branch and in the government of the District of
Columbia from the qualified applicants in the same manner and
under the same conditions required for the competitive service
by sections 3308-3318 of this title. This section does not
apply to an appointment required by Congress to be confirmed
by, or made with the advice and consent of, the Senate.
Sec. 3321. Competitive service; probationary period
(a) The President may take such action, including the
issuance of rules, regulations, and directives, as shall
provide as nearly as conditions of good administration warrant
for a period of probation--
(1) before an appointment in the competitive
service becomes final; and
(2) before initial appointment as a supervisor or
manager becomes final.
(b) An individual--
(1) who has been transferred, assigned, or promoted
from a position to a supervisory or managerial
position, and
(2) who does not satisfactorily complete the
probationary period under subsection (a)(2) of this
section,
shall be returned to a position of no lower grade and pay than
the position from which the individual was transferred,
assigned, or promoted. Nothing in this section prohibits an
agency from taking an action against an individual serving a
probationary period under subsection (a)(2) of this section for
cause unrelated to supervisory or managerial performance.
(c) Subsections (a) and (b) of this section shall not apply
with respect to appointments in the Senior Executive Service or
the Federal Bureau of Investigation and Drug Enforcement
Administration Senior Executive Service.
[Sec. 3322. Repealed. Pub. L. 95-256, Sec. 5(b)(1), Apr. 6, 1978, 92
Stat. 191.]
Sec. 3323. Automatic separations; reappointment; reemployment of
annuitants
(a) An individual who reaches the retirement age prescribed
for automatic separation applicable to him may not be continued
in the civil service or in the government of the District of
Columbia. An individual separated on account of age under a
statute or regulation providing for retirement on account of
age is not eligible for appointment in the civil service or in
the government of the District of Columbia. The President, when
in his judgment the public interest so requires, may except an
individual from this subsection by Executive order. This
subsection does not apply to an individual named by a statute
providing for the continuance of the individual in the civil
service or in the government of the District of Columbia.
(b)(1) Notwithstanding other statutes, an annuitant, as
defined by section 8331 or 8401, receiving annuity from the
Civil Service Retirement and Disability Fund is not barred by
reason of his retired status from employment in an appointive
position for which the annuitant is qualified. An annuitant so
reemployed, other than an annuitant reappointed under paragraph
(2) of this subsection, serves at the will of the appointing
authority.
(2) Subject to such regulations as the Director of the
Office of Personnel Management may prescribe, any annuitant to
whom the first sentence of paragraph (1) of this subsection
applies and who has served as an administrative law judge
pursuant to an appointment under section 3105 of this title may
be reappointed an administrative law judge under such section
for a specified period or for such period as may be necessary
for such administrative law judge to conduct and complete the
hearing and disposition of one or more specified cases. The
provisions of this title that apply to or with respect to
administrative law judges appointed under section 3105 of this
title shall apply to or with respect to administrative law
judges reappointed under such section pursuant to the first
sentence of this paragraph.
(c) Notwithstanding subsection (a) of this section, a
member of the Foreign Service retired under section 812 of the
Foreign Service Act of 1980 is not barred by reason of his
retired status from employment in a position in the civil
service for which he is qualified. An annuitant so reemployed
serves at the will of the appointing authority.
(d) Notwithstanding subsection (a) of this section, the
Chief of Engineers of the Army, under section 569a of title 33,
may employ a retired employee whose expert assistance is needed
in connection with river and harbor or flood control works.
There shall be deducted from the pay of an employee so
reemployed an amount equal to the annuity or retired pay
allocable to the period of actual employment.
Sec. 3324. Appointments to positions classified above GS-15
(a) An appointment to a position classified above GS-15
pursuant to section 5108 may be made only on approval of the
qualifications of the proposed appointee by the Office of
Personnel Management. This section does not apply to a
position--
(1) to which appointment is made by the Chief Judge
of the United States Tax Court;
(2) to which appointment is made by the President;
(3) to which appointment is made by the Librarian
of Congress; or
(4) the incumbent of which is paid from--
(A) appropriations for the Executive Office
of the President under the heading ``The White
House Office'', ``Special Projects'', ``Council
of Economic Advisers'', or ``National Security
Council''; or
(B) funds appropriated to the President
under the heading ``Emergency Fund for the
President'' by the Treasury, Post Office, and
Executive Office Appropriation Act, 1966, or a
later statute making appropriations for the
same purpose.
(b) The Office may prescribe regulations necessary for the
administration of this section.
Sec. 3325. Appointments to scientific and professional positions
(a) Positions established under section 3104 of this title
are in the competitive service. However, appointments to the
positions are made without competitive examination on approval
of the qualifications of the proposed appointee by the Office
of Personnel Management or its designee for this purpose.
(b) This section does not apply to positions established
under section 3104(c).
Sec. 3326. Appointments of retired members of the armed forces to
positions in the Department of Defense
(a) For the purpose of this section, ``member'' and
``Secretary concerned'' have the meanings given them by section
101 of title 37.
(b) A retired member of the armed forces may be appointed
to a position in the civil service in or under the Department
of Defense (including a nonappropriated fund instrumentality
under the jurisdiction of the armed forces) during the period
of 180 days immediately after his retirement only if--
(1) the proposed appointment is authorized by the
Secretary concerned or his designee for the purpose,
and, if the position is in the competitive service,
after approval by the Office of Personnel Management;
(2) the minimum rate of basic pay for the position
has been increased under section 5305 of this title; or
(3) a state of national emergency exists.
(c) A request by appropriate authority for the
authorization, or the authorization and approval, as the case
may be, required by subsection (b)(1) of this section shall be
accompanied by a statement which shows the actions taken to
assure that--
(1) full consideration, in accordance with
placement and promotion procedures of the department
concerned, was given to eligible career employees;
(2) when selection is by other than certification
from an established civil service register, the vacancy
has been publicized to give interested candidates an
opportunity to apply;
(3) qualification requirements for the position
have not been written in a manner designed to give
advantage to the retired member; and
(4) the position has not been held open pending the
retirement of the retired member.
Sec. 3327. Civil service employment information
(a) The Office of Personnel Management shall provide that
information concerning opportunities to participate in
competitive examinations conducted by, or under authority
delegated by, the Office of Personnel Management shall be made
available to the employment offices of the United States
Employment Service.
(b) Subject to such regulations as the Office may issue,
each agency shall promptly notify the Office and the employment
offices of the United States Employment Service of--
(1) each vacant position in the agency which is in
the competitive service or the Senior Executive Service
and for which the agency seeks applications from
persons outside the Federal service, and
(2) the period during which applications will be
accepted.
As used in this subsection, ``agency'' means an agency as
defined in section 5102(a)(1) of this title other than an
agency all the positions in which are excepted by statute from
the competitive service.
Sec. 3328. Selective Service registration
(a) An individual--
(1) who was born after December 31, 1959, and is or
was required to register under section 3 of the
Military Selective Service Act (50 U.S.C. App. 453);
and
(2) who is not so registered or knowingly and
willfully did not so register before the requirement
terminated or became inapplicable to the individual,
shall be ineligible for appointment to a position in an
executive agency.
(b) The Office of Personnel Management, in consultation
with the Director of the Selective Service System, shall
prescribe regulations to carry out this section. Such
regulations shall include provisions prescribing procedures for
the adjudication of determinations of whether a failure to
register was knowing and willful. Such procedures shall require
that such a determination may not be made if the individual
concerned shows by a preponderance of the evidence that the
failure to register was neither knowing nor willful. Such
procedures may provide that determinations of eligibility under
the requirements of this section shall be adjudicated by the
Executive agency making the appointment for which the
eligibility is determined.
Sec. 3329. Appointments of military reserve technicians to positions in
the competitive service
(a) For the purpose of this section, the term ``military
reserve technician'' has the meaning given the term ``military
technician (dual status)'' by section 8401(30).
(b) The Secretary of Defense shall take such steps as may
be necessary to ensure that, except as provided in subsection
(d), any military reserve technician who is involuntarily
separated from technician service, after completing at least 15
years of such service and 20 years of service creditable under
section 12732 of title 10, by reason of ceasing to satisfy the
condition described in section 8401(30)(B) shall, if
appropriate written application is submitted within 1 year
after the date of separation, be provided placement
consideration in a position described in subsection (c) through
a priority placement program of the Department of Defense.
(c)(1) The position for which placement consideration shall
be provided to a former military technician under subsection
(b) shall be a position--
(A) in either the competitive service or the
excepted service;
(B) within the Department of Defense; and
(C) in which the person is qualified to serve,
taking into consideration whether the employee in that
position is required to be a member of a reserve
component of the armed forces as a condition of
employment.
(2) To the maximum extent practicable, the position shall
also be in a pay grade or other pay classification sufficient
to ensure that the rate of basic pay of the former military
technician, upon appointment to the position, is not less than
the rate of basic pay last received by the former military
technician for technician service before separation.
(d) This section shall not apply in the case of--
(1) an involuntary separation for cause on charges
of misconduct or delinquency; or
(2) a technician who, as of the date of application
under this section, is eligible for immediate
(including for disability) or early retirement under
subchapter III of chapter 83 or under chapter 84.
(e) The Secretary of Defense shall, in consultation with
the Director of the Office of Personnel Management, prescribe
such regulations as may be necessary to carry out this section.
Sec. 3330. Government-wide list of vacant positions
(a) For the purpose of this section, the term ``agency''
means an Executive agency, excluding the General Accounting
Office and any agency (or unit thereof) whose principal
function is the conduct of foreign intelligence or
counterintelligence activities, as determined by the President.
(b) The Office of Personnel Management shall establish and
keep current a comprehensive list of all announcements of
vacant positions in the competitive service within each agency
that are to be filled by appointment for more than one year and
for which applications are being (or will soon be) accepted
from outside the agency's work force.
(c) Included for any position listed shall be--
(1) a brief description of the position, including
its title, tenure, location, and rate of pay;
(2) application procedures, including the period
within which applications may be submitted and
procedures for obtaining additional information; and
(3) any other information which the Office
considers appropriate.
(d) The list shall be available to members of the public.
(e) The Office shall prescribe such regulations as may be
necessary to carry out this section. Any requirement under this
section that agencies notify the Office as to the availability
of any vacant positions shall be designed so as to avoid any
duplication of information otherwise required to be furnished
under section 3327 of this title or any other provision of law.
(f) The Office may, to the extent it determines
appropriate, charge such fees to agencies for services provided
under this section and for related Federal employment
information. The Office shall retain such fees to pay the costs
of providing such services and information.
Sec. 3330a. Preference eligibles; administrative redress
(a)(1) A preference eligible who alleges that an agency has
violated such individual's rights under any statute or
regulation relating to veterans' preference may file a
complaint with the Secretary of Labor.
(2)(A) A complaint under this subsection must be filed
within 60 days after the date of the alleged violation.
(B) Such complaint shall be in writing, be in such form as
the Secretary may prescribe, specify the agency against which
the complaint is filed, and contain a summary of the
allegations that form the basis for the complaint.
(3) The Secretary shall, upon request, provide technical
assistance to a potential complainant with respect to a
complaint under this subsection.
(b)(1) The Secretary of Labor shall investigate each
complaint under subsection (a).
(2) In carrying out any investigation under this
subsection, the Secretary's duly authorized representatives
shall, at all reasonable times, have reasonable access to, for
purposes of examination, and the right to copy and receive, any
documents of any person or agency that the Secretary considers
relevant to the investigation.
(3) In carrying out any investigation under this
subsection, the Secretary may require by subpoena the
attendance and testimony of witnesses and the production of
documents relating to any matter under investigation. In case
of disobedience of the subpoena or contumacy and on request of
the Secretary, the Attorney General may apply to any district
court of the United States in whose jurisdiction such
disobedience or contumacy occurs for an order enforcing the
subpoena.
(4) Upon application, the district courts of the United
States shall have jurisdiction to issue writs commanding any
person or agency to comply with the subpoena of the Secretary
or to comply with any order of the Secretary made pursuant to a
lawful investigation under this subsection and the district
courts shall have jurisdiction to punish failure to obey a
subpoena or other lawful order of the Secretary as a contempt
of court.
(c)(1)(A) If the Secretary of Labor determines as a result
of an investigation under subsection (b) that the action
alleged in a complaint under subsection (a) occurred, the
Secretary shall attempt to resolve the complaint by making
reasonable efforts to ensure that the agency specified in the
complaint complies with applicable provisions of statute or
regulation relating to veterans' preference.
(B) The Secretary of Labor shall make determinations
referred to in subparagraph (A) based on a preponderance of the
evidence.
(2) If the efforts of the Secretary under subsection (b)
with respect to a complaint under subsection (a) do not result
in the resolution of the complaint, the Secretary shall notify
the person who submitted the complaint, in writing, of the
results of the Secretary's investigation under subsection (b).
(d)(1) If the Secretary of Labor is unable to resolve a
complaint under subsection (a) within 60 days after the date on
which it is filed, the complainant may elect to appeal the
alleged violation to the Merit Systems Protection Board in
accordance with such procedures as the Merit Systems Protection
Board shall prescribe, except that in no event may any such
appeal be brought--
(A) before the 61st day after the date on which the
complaint is filed; or
(B) later than 15 days after the date on which the
complainant receives written notification from the
Secretary under subsection (c)(2).
(2) An appeal under this subsection may not be brought
unless--
(A) the complainant first provides written
notification to the Secretary of such complainant's
intention to bring such appeal; and
(B) appropriate evidence of compliance with
subparagraph (A) is included (in such form and manner
as the Merit Systems Protection Board may prescribe)
with the notice of appeal under this subsection.
(3) Upon receiving notification under paragraph (2)(A), the
Secretary shall not continue to investigate or further attempt
to resolve the complaint to which the notification relates.
(e)(1) This section shall not be construed to prohibit a
preference eligible from appealing directly to the Merit
Systems Protection Board from any action which is appealable to
the Board under any other law, rule, or regulation, in lieu of
administrative redress under this section.
(2) A preference eligible may not pursue redress for an
alleged violation described in subsection (a) under this
section at the same time the preference eligible pursues
redress for such violation under any other law, rule, or
regulation.
Sec. 3330b. Preference eligibles; judicial redress
(a) In lieu of continuing the administrative redress
procedure provided under section 3330a(d), a preference
eligible may elect, in accordance with this section, to
terminate those administrative proceedings and file an action
with the appropriate United States district court not later
than 60 days after the date of the election.
(b) An election under this section may not be made--
(1) before the 121st day after the date on which
the appeal is filed with the Merit Systems Protection
Board under section 3330a(d); or
(2) after the Merit Systems Protection Board has
issued a judicially reviewable decision on the merits
of the appeal.
(c) An election under this section shall be made, in
writing, in such form and manner as the Merit Systems
Protection Board shall by regulation prescribe. The election
shall be effective as of the date on which it is received, and
the administrative proceeding to which it relates shall
terminate immediately upon the receipt of such election.
Sec. 3330c. Preference eligibles; remedy
(a) If the Merit Systems Protection Board (in a proceeding
under section 3330a) or a court (in a proceeding under section
3330b) determines that an agency has violated a right described
in section 3330a, the Board or court (as the case may be) shall
order the agency to comply with such provisions and award
compensation for any loss of wages or benefits suffered by the
individual by reason of the violation involved. If the Board or
court determines that such violation was willful, it shall
award an amount equal to backpay as liquidated damages.
(b) A preference eligible who prevails in an action under
section 3330a or 3330b shall be awarded reasonable attorney
fees, expert witness fees, and other litigation expenses.
SUBCHAPTER II--OATH OF OFFICE
Sec. 3331. Oath of office
An individual, except the President, elected or appointed
to an office of honor or profit in the civil service or
uniformed services, shall take the following oath: ``I, AB, do
solemnly swear (or affirm) that I will support and defend the
Constitution of the United States against all enemies, foreign
and domestic; that I will bear true faith and allegiance to the
same; that I take this obligation freely, without any mental
reservation or purpose of evasion; and that I will well and
faithfully discharge the duties of the office on which I am
about to enter. So help me God.'' This section does not affect
other oaths required by law.
Sec. 3332. Officer affidavit; no consideration paid for appointment
An officer, within 30 days after the effective date of his
appointment, shall file with the oath of office required by
section 3331 of this title an affidavit that neither he nor
anyone acting in his behalf has given, transferred, promised,
or paid any consideration for or in the expectation or hope of
receiving assistance in securing the appointment.
Sec. 3333. Employee affidavit; loyalty and striking against the
Government
(a) Except as provided by subsection (b) of this section,
an individual who accepts office or employment in the
Government of the United States or in the government of the
District of Columbia shall execute an affidavit within 60 days
after accepting the office or employment that his acceptance
and holding of the office or employment does not or will not
violate section 7311 of this title. The affidavit is prima
facie evidence that the acceptance and holding of office or
employment by the affiant does not or will not violate section
7311 of this title.
(b) An affidavit is not required from an individual
employed by the Government of the United States or the
government of the District of Columbia for less than 60 days
for sudden emergency work involving the loss of human life or
the destruction of property. This subsection does not relieve
an individual from liability for violation of section 7311 of
this title.
SUBCHAPTER III--DETAILS, VACANCIES, AND APPOINTMENTS
Sec. 3341. Details; within Executive or military departments
(a) The head of an Executive department or military
department may detail employees among the bureaus and offices
of his department, except employees who are required by law to
be exclusively engaged on some specific work.
(b)(1) Details under subsection (a) of this section may be
made only by written order of the head of the department, and
may be for not more than 120 days. These details may be renewed
by written order of the head of the department, in each
particular case, for periods not exceeding 120 days.
(2) The 120-day limitation in paragraph (1) for details and
renewals of details does not apply to the Department of Defense
in the case of a detail--
(A) made in connection with the closure or
realignment of a military installation pursuant to a
base closure law or an organizational restructuring of
the Department as part of a reduction in the size of
the armed forces or the civilian workforce of the
Department; and
(B) in which the position to which the employee is
detailed is eliminated on or before the date of the
closure, realignment, or restructuring.
(c) For purposes of this section--
(1) the term ``base closure law'' means--
(A) section 2687 of title 10;
(B) title II of the Defense Authorization
Amendments and Base Closure and Realignment Act
(10 U.S.C. 2687 note); and
(C) the Defense Base Closure and
Realignment Act of 1990 (10 U.S.C. 2687 note);
and
(2) the term ``military installation''--
(A) in the case of an installation covered
by section 2687 of title 10, has the meaning
given such term in subsection (e)(1) of such
section;
(B) in the case of an installation covered
by the Act referred to in subparagraph (B) of
paragraph (1), has the meaning given such term
in section 209(6) of such Act; and
(C) in the case of an installation covered
by the Act referred to in subparagraph (C) of
that paragraph, has the meaning given such term
in section 2910(4) of such Act.
[Sec. 3342. Repealed. Pub. L. 102-378, Sec. 2(13)(A), Oct. 2, 1992, 106
Stat. 1347]
Sec. 3343. Details; to international organizations
(a) For the purpose of this section--
(1) ``agency'', ``employee'', and ``international
organization'' have the meanings given them by section
3581 of this title; and
(2) ``detail'' means the assignment or loan of an
employee to an international organization without a
change of position from the agency by which he is
employed to an international organization.
(b) The head of an agency may detail, for a period of not
more than 5 years, an employee of his agency to an
international organization which requests services, except that
under special circumstances, where the President determines it
to be in the national interest, he may extend the 5-year period
for up to an additional 3 years.
(c) An employee detailed under subsection (b) of this
section is deemed, for the purpose of preserving his
allowances, privileges, rights, seniority, and other benefits,
an employee of the agency from which detailed, and he is
entitled to pay, allowances, and benefits from funds available
to that agency. The authorization and payment of these
allowances and other benefits from appropriations available
therefor is deemed to comply with section 5536 of this title.
(d) Details may be made under subsection (b) of this
section--
(1) without reimbursement to the United States by
the international organization; or
(2) with agreement by the international
organization to reimburse the United States for all or
part of the pay, travel expenses, and allowances
payable during the detail, and the reimbursement shall
be credited to the appropriation, fund, or account used
for paying the amounts reimbursed.
(e) An employee detailed under subsection (b) of this
section may be paid or reimbursed by an international
organization for allowances or expenses incurred in the
performance of duties required by the detail, without regard to
section 209 of title 18.
Sec. 3344. Details; administrative law judges
An agency as defined by section 551 of this title which
occasionally or temporarily is insufficiently staffed with
administrative law judges appointed under section 3105 of this
title may use administrative law judges selected by the Office
of Personnel Management from and with the consent of other
agencies.
Sec. 3345. Acting officer
(a) If an officer of an Executive agency (including the
Executive Office of the President, and other than the General
Accounting Office) whose appointment to office is required to
be made by the President, by and with the advice and consent of
the Senate, dies, resigns, or is otherwise unable to perform
the functions and duties of the office--
(1) the first assistant to the office of such
officer shall perform the functions and duties of the
office temporarily in an acting capacity subject to the
time limitations of section 3346;
(2) notwithstanding paragraph (1), the President
(and only the President) may direct a person who serves
in an office for which appointment is required to be
made by the President, by and with the advice and
consent of the Senate, to perform the functions and
duties of the vacant office temporarily in an acting
capacity subject to the time limitations of section
3346; or
(3) notwithstanding paragraph (1), the President
(and only the President) may direct an officer or
employee of such Executive agency to perform the
functions and duties of the vacant office temporarily
in an acting capacity, subject to the time limitations
of section 3346, if--
(A) during the 365-day period preceding the
date of death, resignation, or beginning of
inability to serve of the applicable officer,
the officer or employee served in a position in
such agency for not less than 90 days; and
(B) the rate of pay for the position
described under subparagraph (A) is equal to or
greater than the minimum rate of pay payable
for a position at GS-15 of the General
Schedule.
(b)(1) Notwithstanding subsection (a)(1), a person may not
serve as an acting officer for an office under this section,
if--
(A) during the 365-day period preceding the date of
the death, resignation, or beginning of inability to
serve, such person--
(i) did not serve in the position of first
assistant to the office of such officer; or
(ii) served in the position of first
assistant to the office of such officer for
less than 90 days; and
(B) the President submits a nomination of such
person to the Senate for appointment to such office.
(2) Paragraph (1) shall not apply to any person if--
(A) such person is serving as the first assistant
to the office of an officer described under subsection
(a);
(B) the office of such first assistant is an office
for which appointment is required to be made by the
President, by and with the advice and consent of the
Senate; and
(C) the Senate has approved the appointment of such
person to such office.
(c)(1) Notwithstanding subsection (a)(1), the President
(and only the President) may direct an officer who is nominated
by the President for reappointment for an additional term to
the same office in an Executive department without a break in
service, to continue to serve in that office subject to the
time limitations in section 3346, until such time as the Senate
has acted to confirm or reject the nomination, notwithstanding
adjournment sine die.
(2) For purposes of this section and sections 3346, 3347,
3348, 3349, 3349a, and 3349d, the expiration of a term of
office is an inability to perform the functions and duties of
such office.
Sec. 3346. Time limitation
(a) Except in the case of a vacancy caused by sickness, the
person serving as an acting officer as described under section
3345 may serve in the office--
(1) for no longer than 210 days beginning on the
date the vacancy occurs; or
(2) subject to subsection (b), once a first or
second nomination for the office is submitted to the
Senate, from the date of such nomination for the period
that the nomination is pending in the Senate.
(b)(1) If the first nomination for the office is rejected
by the Senate, withdrawn, or returned to the President by the
Senate, the person may continue to serve as the acting officer
for no more than 210 days after the date of such rejection,
withdrawal, or return.
(2) Notwithstanding paragraph (1), if a second nomination
for the office is submitted to the Senate after the rejection,
withdrawal, or return of the first nomination, the person
serving as the acting officer may continue to serve--
(A) until the second nomination is confirmed; or
(B) for no more than 210 days after the second
nomination is rejected, withdrawn, or returned.
(c) If a vacancy occurs during an adjournment of the
Congress sine die, the 210-day period under subsection (a)
shall begin on the date that the Senate first reconvenes.
Sec. 3347. Exclusivity
(a) Sections 3345 and 3346 are the exclusive means for
temporarily authorizing an acting official to perform the
functions and duties of any office of an Executive agency
(including the Executive Office of the President, and other
than the General Accounting Office) for which appointment is
required to be made by the President, by and with the advice
and consent of the Senate, unless--
(1) a statutory provision expressly--
(A) authorizes the President, a court, or
the head of an Executive department, to
designate an officer or employee to perform the
functions and duties of a specified office
temporarily in an acting capacity; or
(B) designates an officer or employee to
perform the functions and duties of a specified
office temporarily in an acting capacity; or
(2) the President makes an appointment to fill a
vacancy in such office during the recess of the Senate
pursuant to clause 3 of section 2 of article II of the
United States Constitution.
(b) Any statutory provision providing general authority to
the head of an Executive agency (including the Executive Office
of the President, and other than the General Accounting Office)
to delegate duties statutorily vested in that agency head to,
or to reassign duties among, officers or employees of such
Executive agency, is not a statutory provision to which
subsection (a)(1) applies.
Sec. 3348. Vacant office
(a) In this section--
(1) the term ``action'' includes any agency action
as defined under section 551(13); and
(2) the term ``function or duty'' means any
function or duty of the applicable office that--
(A)(i) is established by statute; and
(ii) is required by statute to be performed
by the applicable officer (and only that
officer); or
(B)(i)(I) is established by regulation; and
(II) is required by such regulation to be
performed by the applicable officer (and only
that officer); and
(ii) includes a function or duty to which
clause (i) (I) and (II) applies, and the
applicable regulation is in effect at any time
during the 180-day period preceding the date on
which the vacancy occurs.
(b) Unless an officer or employee is performing the
functions and duties in accordance with sections 3345, 3346,
and 3347, if an officer of an Executive agency (including the
Executive Office of the President, and other than the General
Accounting Office) whose appointment to office is required to
be made by the President, by and with the advice and consent of
the Senate, dies, resigns, or is otherwise unable to perform
the functions and duties of the office--
(1) the office shall remain vacant; and
(2) in the case of an office other than the office
of the head of an Executive agency (including the
Executive Office of the President, and other than the
General Accounting Office), only the head of such
Executive agency may perform any function or duty of
such office.
(c) If the last day of any 210-day period under section
3346 is a day on which the Senate is not in session, the second
day the Senate is next in session and receiving nominations
shall be deemed to be the last day of such period.
(d)(1) An action taken by any person who is not acting
under section 3345, 3346, or 3347, or as provided by subsection
(b), in the performance of any function or duty of a vacant
office to which this section and sections 3346, 3347, 3349,
3349a, 3349b, and 3349c apply shall have no force or effect.
(2) An action that has no force or effect under paragraph
(1) may not be ratified.
(e) This section shall not apply to--
(1) the General Counsel of the National Labor
Relations Board;
(2) the General Counsel of the Federal Labor
Relations Authority;
(3) any Inspector General appointed by the
President, by and with the advice and consent of the
Senate;
(4) any Chief Financial Officer appointed by the
President, by and with the advice and consent of the
Senate; or
(5) an office of an Executive agency (including the
Executive Office of the President, and other than the
General Accounting Office) if a statutory provision
expressly prohibits the head of the Executive agency
from performing the functions and duties of such
office.
Sec. 3349. Reporting of vacancies
(a) The head of each Executive agency (including the
Executive Office of the President, and other than the General
Accounting Office) shall submit to the Comptroller General of
the United States and to each House of Congress--
(1) notification of a vacancy in an office to which
this section and sections 3345, 3346, 3347, 3348,
3349a, 3349b, 3349c, and 3349d apply and the date such
vacancy occurred immediately upon the occurrence of the
vacancy;
(2) the name of any person serving in an acting
capacity and the date such service began immediately
upon the designation;
(3) the name of any person nominated to the Senate
to fill the vacancy and the date such nomination is
submitted immediately upon the submission of the
nomination; and
(4) the date of a rejection, withdrawal, or return
of any nomination immediately upon such rejection,
withdrawal, or return.
(b) If the Comptroller General of the United States makes a
determination that an officer is serving longer than the 210-
day period including the applicable exceptions to such period
under section 3346 or section 3349a, the Comptroller General
shall report such determination immediately to--
(1) the Committee on Governmental Affairs of the
Senate;
(2) the Committee on Government Reform and
Oversight of the House of Representatives;
(3) the Committees on Appropriations of the Senate
and House of Representatives;
(4) the appropriate committees of jurisdiction of
the Senate and House of Representatives;
(5) the President; and
(6) the Office of Personnel Management.
Sec. 3349a. Presidential inaugural transitions
(a) In this section, the term ``transitional inauguration
day'' means the date on which any person swears or affirms the
oath of office as President, if such person is not the
President on the date preceding the date of swearing or
affirming such oath of office.
(b) With respect to any vacancy that exists during the 60-
day period beginning on a transitional inauguration day, the
210-day period under section 3346 or 3348 shall be deemed to
begin on the later of the date occurring--
(1) 90 days after such transitional inauguration
day; or
(2) 90 days after the date on which the vacancy
occurs.
Sec. 3349b. Holdover provisions
Sections 3345 through 3349a shall not be construed to
affect any statute that authorizes a person to continue to
serve in any office--
(1) after the expiration of the term for which such
person is appointed; and
(2) until a successor is appointed or a specified
period of time has expired.
Sec. 3349c. Exclusion of certain officers
Sections 3345 through 3349b shall not apply to--
(1) any member who is appointed by the President,
by and with the advice and consent of the Senate to any
board, commission, or similar entity that--
(A) is composed of multiple members; and
(B) governs an independent establishment or
Government corporation;
(2) any commissioner of the Federal Energy
Regulatory Commission;
(3) any member of the Surface Transportation Board;
or
(4) any judge appointed by the President, by and
with the advice and consent of the Senate, to a court
constituted under article I of the United States
Constitution.
Sec. 3349d. Notification of intent to nominate during certain recesses
or adjournments
(a) The submission to the Senate, during a recess or
adjournment of the Senate in excess of 15 days, of a written
notification by the President of the President's intention to
submit a nomination after the recess or adjournment shall be
considered a nomination for purposes of sections 3345 through
3349c if such notification contains the name of the proposed
nominee and the office for which the person is nominated.
(b) If the President does not submit a nomination of the
person named under subsection (a) within 2 days after the end
of such recess or adjournment, effective after such second day
the notification considered a nomination under subsection (a)
shall be treated as a withdrawn nomination for purposes of
sections 3345 through 3349c.
SUBCHAPTER IV--TRANSFERS
Sec. 3351. Preference eligibles; transfer; physical qualifications;
waiver
In determining qualifications of a preference eligible for
transfer to another position in the competitive service, an
Executive agency, or the government of the District of
Columbia, the Office of Personnel Management or other examining
agency shall waive--
(1) requirements as to age, height, and weight,
unless the requirement is essential to the performance
of the duties of the position; and
(2) physical requirements if, in the opinion of the
Office or other examining agency, after considering the
recommendation of an accredited physician, the
preference eligible is physically able to perform
efficiently the duties of the position.
This section does not apply to an appointment required by
Congress to be confirmed by, or made with the advice and
consent of, the Senate.
Sec. 3352. Preference in transfers for employees making certain
disclosures
(a) Subject to the provisions of subsections (d) and (e),
in filling a position within any Executive agency, the head of
such agency may give preference to any employee of such agency,
or any other Executive agency, to transfer to a position of the
same status and tenure as the position of such employee on the
date of applying for a transfer under subsection (b) if--
(1) such employee is otherwise qualified for such
position;
(2) such employee is eligible for appointment to
such position; and
(3) the Merit Systems Protection Board makes a
determination under the provisions of chapter 12 that a
prohibited personnel action described under section
2302(b)(8) was taken against such employee.
(b) An employee who meets the conditions described under
subsection (a)(1), (2), and (3) may voluntarily apply for a
transfer to a position, as described in subsection (a), within
the Executive agency employing such employee or any other
Executive agency.
(c) If an employee applies for a transfer under the
provisions of subsection (b) and the selecting official rejects
such application, the selecting official shall provide the
employee with a written notification of the reasons for the
rejection within 30 days after receiving such application.
(d) An employee whose application for transfer is rejected
under the provisions of subsection (c) may request the head of
such agency to review the rejection. Such request for review
shall be submitted to the head of the agency within 30 days
after the employee receives notification under subsection (c).
Within 30 days after receiving a request for review, the head
of the agency shall complete the review and provide a written
statement of findings to the employee and the Merit Systems
Protection Board.
(e) The provisions of subsection (a) shall apply with
regard to any employee--
(1) for no more than 1 transfer
(2) for a transfer from or within the agency such
employee is employed at the time of a determination by
the Merit Systems Protection Board that a prohibited
personnel action as described under section 2302(b)(8)
was taken against such employee.
(3) no later than 18 months after such a
determination is made by the Merit Systems Protection
Board.
(f) Notwithstanding the provisions of subsection (a), no
preference may be given to any employee applying for a transfer
under subsection (b), with respect to a preference eligible (as
defined under section 2108(3)) applying for the same position.
SUBCHAPTER V--PROMOTION
Sec. 3361. Promotion; competitive service; examination
An individual may be promoted in the competitive service
only if he has passed an examination or is specifically
excepted from examination under section 3302 of this title.
This section does not take from the President any authority
conferred by section 3301 of this title that is consistent with
the provisions of this title governing the competitive service.
Sec. 3362. Promotion; effect of incentive award
An agency, in qualifying and selecting an employee for
promotion, shall give due weight to an incentive award under
chapter 45 of this title. For the purpose of this section,
``agency'' and ``employee'' have the meanings given them by
section 4501 of this title.
Sec. 3363. Preference eligibles; promotion; physical qualifications;
waiver
In determining qualifications of a preference eligible for
promotion to another position in the competitive service, an
Executive agency, or the government of the District of
Columbia, the Office of Personnel Management or other examining
agency shall waive--
(1) requirements as to age, height, and weight,
unless the requirement is essential to the performance
of the duties of the position; and
(2) physical requirements if, in the opinion of the
Office or other examining agency, after considering the
recommendation of an accredited physician, the
preference eligible is physically able to perform
efficiently the duties of the position.
This section does not apply to an appointment required by
Congress to be confirmed by, or made with the advice and
consent of, the Senate.
[Sec. 3364. Repealed. Pub. L. 94-183, Sec. 2(6), Dec. 31, 1975, 89
Stat. 1057.]
SUBCHAPTER VI--ASSIGNMENTS TO AND FROM STATES
Sec. 3371. Definitions
For the purpose of this subchapter--
(1) ``State'' means--
(A) a State of the United States, the
District of Columbia, the Commonwealth of
Puerto Rico, the Trust Territory of the Pacific
Islands, and a territory or possession of the
United States; and
(B) an instrumentality or authority of a
State or States as defined in subparagraph (A)
of this paragraph (1) and a Federal-State
authority or instrumentality;
(2) ``local government'' means--
(A) any political subdivision,
instrumentality, or authority of a State or
States as defined in subparagraph (A) of
paragraph (1);
(B) any general or special purpose agency
of such a political subdivision,
instrumentality, or authority; and
(C) any Indian tribe, band, nation, or
other organized group or community, including
any Alaska Native village as defined in the
Alaska Native Claims Settlement Act (85 Stat.
688), which is recognized as eligible for the
special programs and services provided by the
United States to Indians because of their
status as Indians and includes any tribal
organization as defined in section 4(c) of the
Indian Self-Determination and Education
Assistance Act;
(3) ``Federal agency'' means an Executive agency,
military department, a court of the United States, the
Administrative Office of the United States Courts, the
Library of Congress, the Botanic Garden, the Government
Printing Office, the Congressional Budget Office, the
United States Postal Service, the Postal Rate
Commission, the Office of the Architect of the Capitol,
the Office of Technology Assessment, and such other
similar agencies of the legislative and judicial
branches as determined appropriate by the Office of
Personnel Management; and
(4) ``other organization'' means--
(A) a national, regional, State-wide, area-
wide, or metropolitan organization representing
member State or local governments;
(B) an association of State or local public
officials;
(C) a nonprofit organization which has as
one of its principal functions the offering of
professional advisory, research, educational,
or development services, or related services,
to governments or universities concerned with
public management; or
(D) a federally funded research and
development center.
Sec. 3372. General provisions
(a) On request from or with the concurrence of a State or
local government, and with the consent of the employee
concerned, the head of a Federal agency may arrange for the
assignment of--
(1) an employee of his agency, other than a
noncareer appointee, limited term appointee, or limited
emergency appointee (as such terms are defined in
section 3132(a) of this title) in the Senior Executive
Service and an employee in a position which has been
excepted from the competitive service by reason of its
confidential, policy-determining, policy-making, or
policy-advocating character, to a State or local
government; and
(2) an employee of a State or local government to
his agency;
for work of mutual concern to his agency and the State or local
government that he determines will be beneficial to both. The
period of an assignment under this subchapter may not exceed
two years. However, the head of a Federal agency may extend the
period of assignment for not more than two additional years. In
the case of assignments made to Indian tribes or tribal
organizations as defined in section 3371(2)(C) of this
subchapter, the head of an executive agency may extend the
period of assignment for any period of time where it is
determined that this will continue to benefit both the
executive agency and the Indian tribe or tribal organization.
If the assigned employee fails to complete the period of
assignment and there is another employee willing and available
to do so, the Secretary may assign the employee to complete the
period of assignment and may execute an agreement with the
tribal organization with respect to the replacement employee.
That agreement may provide for a different period of assignment
as may be agreed to by the Secretary and the tribal
organization.
(b) This subchapter is authority for and applies to the
assignment of--
(1) an employee of a Federal agency to an
institution of higher education;
(2) an employee of an institution of higher
education to a Federal agency;
(3) an employee of a Federal agency to any other
organization; and
(4) an employee of an other organization to a
Federal agency.
(c)(1) An employee of a Federal agency may be assigned
under this subchapter only if the employee agrees, as a
condition of accepting an assignment under this subchapter, to
serve in the civil service upon the completion of the
assignment for a period equal to the length of the assignment.
(2) Each agreement required under paragraph (1) of this
subsection shall provide that in the event the employee fails
to carry out the agreement (except for good and sufficient
reason, as determined by the head of the Federal agency from
which assigned) the employee shall be liable to the United
States for payment of all expenses (excluding salary) of the
assignment. The amount shall be treated as a debt due the
United States.
(d) Where the employee is assigned to a tribal
organization, the employee shall be eligible for promotions,
periodic step-increases, and additional step-increases, as
defined in chapter 53 of this title, on the same basis as other
Federal employees.
(e) Under regulations prescribed pursuant to section 3376
of this title--
(1) an assignment of an employee of a Federal
agency to an other organization or an institution of
higher education, and an employee so assigned, shall be
treated in the same way as an assignment of an employee
of a Federal agency to a State or local government, and
an employee so assigned, is treated under the
provisions of this subchapter governing an assignment
of an employee of a Federal agency to a State or local
government, except that the rate of pay of an employee
assigned to a federally funded research and development
center may not exceed the rate of pay that such
employee would be paid for continued service in the
position in the Federal agency from which assigned; and
(2) an assignment of an employee of an other
organization or an institution of higher education to a
Federal agency, and an employee so assigned, shall be
treated in the same way as an assignment of an employee
of a State or local government to a Federal agency, and
an employee so assigned, is treated under the
provisions of this subchapter governing an assignment
of an employee of a State or local government to a
Federal agency.
Sec. 3373. Assignment of employees to State or local governments
(a) An employee of a Federal agency assigned to a State or
local government under this subchapter is deemed, during the
assignment, to be either--
(1) on detail to a regular work assignment in his
agency; or
(2) on leave without pay from his position in the
agency.
An employee assigned either on detail or on leave without pay
remains an employee of his agency. The Federal Tort Claims Act
and any other Federal tort liability statute apply to an
employee so assigned. The supervision of the duties of an
employee on detail may be governed by agreement between the
Federal agency and the State or local government concerned.
(b) The assignment of an employee of a Federal agency
either on detail or on leave without pay to a State or local
government under this subchapter may be made with or without
reimbursement by the State or local government for the travel
and transportation expenses to or from the place of assignment
and for the pay, or supplemental pay, or a part thereof, of the
employee during assignment. Any reimbursements shall be
credited to the appropriation of the Federal agency used for
paying the travel and transportation expenses or pay.
(c) For any employee so assigned and on leave without pay--
(1) if the rate of pay for his employment by the
State or local government is less than the rate of pay
he would have received had he continued in his regular
assignment in the agency, he is entitled to receive
supplemental pay from the agency in an amount equal to
the difference between the State or local government
rate and the agency rate;
(2) he is entitled to annual and sick leave to the
same extent as if he had continued in his regular
assignment in the agency; and
(3) he is entitled, notwithstanding other
statutes--
(A) to continuation of his insurance under
chapter 87 of this title, and coverage under
chapter 89 of this title or other applicable
authority, so long as he pays currently into
the Employee's Life Insurance Fund and the
Employee's Health Benefits Fund or other
applicable health benefits system (through his
employing agency) the amount of the employee
contributions;
(B) to credit the period of his assignment
under this subchapter toward periodic step-
increases, retention, and leave accrual
purposes, and, on payment into the Civil
Service Retirement and Disability Fund or other
applicable retirement system of the percentage
of his State or local government pay, and of
his supplemental pay, if any, that would have
been deducted from a like agency pay for the
period of the assignment and payment by the
Federal agency into the fund or system of the
amount that would have been payable by the
agency during the period of the assignment with
respect to a like agency pay, to treat his
service during that period as service of the
type performed in the agency immediately before
his assignment; and
(C) for the purpose of subchapter I of
chapter 85 of this title, to credit the service
performed during the period of his assignment
under this subchapter as Federal service, and
to consider his State or local government pay
(and his supplemental pay, if any) as Federal
wages. To the extent that the service could
also be the basis for entitlement to
unemployment compensation under a State law,
the employee may elect to claim unemployment
compensation on the basis of the service under
either the State law or subchapter I of chapter
85 of this title.
However, an employee or his beneficiary may not receive
benefits referred to in subparagraphs (A) and (B) of this
paragraph (3), based on service during an assignment under this
subchapter for which the employee or, if he dies without making
such an election, his beneficiary elects to receive benefits,
under any State or local government retirement or insurance law
or program, which the Office of Personnel Management determines
to be similar. The Federal agency shall deposit currently in
the Employee's Life Insurance Fund, the Employee's Health
Benefits Fund or other applicable health benefits system,
respectively, the amount of the Government's contributions on
account of service with respect to which employee contributions
are collected as provided in subparagraphs (A) and (B) of this
paragraph (3).
(d)(1) An employee so assigned and on leave without pay who
dies or suffers disability as a result of personal injury
sustained while in the performance of his duty during an
assignment under this subchapter shall be treated, for the
purpose of subchapter I of chapter 81 of this title, as though
he were an employee as defined by section 8101 of this title
who had sustained the injury in the performance of duty. When
an employee (or his dependents in case of death) entitled by
reason of injury or death to benefits under subchapter I of
chapter 81 of this title is also entitled to benefits from a
State or local government for the same injury or death, he (or
his dependents in case of death) shall elect which benefits he
will receive. The election shall be made within one year after
the injury or death, or such further time as the Secretary of
Labor may allow for reasonable cause shown. When made, the
election is irrevocable unless otherwise provided by law.
(2) An employee who elects to receive benefits from a State
or local government may not receive an annuity under subchapter
III of chapter 83 of this title and benefits from the State or
local government for injury or disability to himself covering
the same period of time. This provision does not--
(A) bar the right of a claimant to the greater
benefit conferred by either the State or local
government or subchapter III of chapter 83 of this
title for any part of the same period of time;
(B) deny to an employee an annuity accruing to him
under subchapter III of chapter 83 of this title on
account of service performed by him; or
(C) deny any concurrent benefit to him from the
State or local government on account of the death of
another individual.
Sec. 3374. Assignments of employees from State or local governments
(a) An employee of a State or local government who is
assigned to a Federal agency under an arrangement under this
subchapter may--
(1) be appointed in the Federal agency without
regard to the provisions of this title governing
appointment in the competitive service for the agreed
period of the assignment; or
(2) be deemed on detail to the Federal agency.
(b) An employee given an appointment is entitled to pay in
accordance with chapter 51 and subchapter III of chapter 53 of
this title or other applicable law, and is deemed an employee
of the Federal agency for all purposes except--
(1) subchapter III of chapter 83 of this title or
other applicable retirement system;
(2) chapter 87 of this title; and
(3) chapter 89 of this title or other applicable
health benefits system unless his appointment results
in the loss of coverage in a group health benefits plan
the premium of which has been paid in whole or in part
by a State or local government contribution.
The above exceptions shall not apply to non-Federal employees
who are covered by chapters 83, 87, and 89 of this title by
virtue of their non-Federal employment immediately before
assignment and appointment under this section.
(c) During the period of assignment, a State or local
government employee on detail to a Federal agency--
(1) is not entitled to pay from the agency, except
to the extent that the pay received from the State or
local government is less than the appropriate rate of
pay which the duties would warrant under the applicable
pay provisions of this title or other applicable
authority;
(2) is deemed an employee of the agency for the
purpose of chapter 73 of this title, sections 203, 205,
207, 208, 209, 602, 603, 606, 607, 643, 654, 1905, and
1913 of title 18, sections 1343, 1344, and 1349(b) of
title 31, and the Federal Tort Claims Act and any other
Federal tort liability statute; and
(3) is subject to such regulations as the President
may prescribe.
The supervision of the duties of such an employee may be
governed by agreement between the Federal agency and the State
or local government concerned. A detail of a State or local
government employee to a Federal agency may be made with or
without reimbursement by the Federal agency for the pay, or a
part thereof, of the employee during the period of assignment,
or for the contribution of the State or local government, or a
part thereof, to employee benefit systems.
(d) A State or local government employee who is given an
appointment in a Federal agency for the period of the
assignment or who is on detail to a Federal agency and who
suffers disability or dies as a result of personal injury
sustained while in the performance of his duty during the
assignment shall be treated, for the purpose of subchapter I of
chapter 81 of this title, as though he were an employee as
defined by section 8101 of this title who had sustained the
injury in the performance of duty. When an employee (or his
dependents in case of death) entitled by reason of injury or
death to benefits under subchapter I of chapter 81 of this
title is also entitled to benefits from a State or local
government for the same injury or death, he (or his dependents
in case of death) shall elect which benefits he will receive.
The election shall be made within 1 year after the injury or
death, or such further time as the Secretary of Labor may allow
for reasonable cause shown. When made, the election is
irrevocable unless otherwise provided by law.
(e) If a State or local government fails to continue the
employer's contribution to State or local government
retirement, life insurance, and health benefit plans for a
State or local government employee who is given an appointment
in a Federal agency, the employer's contributions covering the
State or local government employee's period of assignment, or
any part thereof, may be made from the appropriations of the
Federal agency concerned.
Sec. 3375. Travel expenses
(a) Appropriations of a Federal agency are available to
pay, or reimburse, a Federal or State or local government
employee in accordance with--
(1) subchapter I of chapter 57 of this title, for
the expenses of--
(A) travel, including a per diem allowance,
to and from the assignment location;
(B) a per diem allowance at the assignment
location during the period of the assignment;
and
(C) travel, including a per diem allowance,
while traveling on official business away from
his designated post of duty during the
assignment when the head of the Federal agency
considers the travel in the interest of the
United States;
(2) section 5724 of this title, for the expenses of
transportation of his immediate family and of his
household goods and personal effects to and from the
assignment location;
(3) section 5724a(a) of this title, for the
expenses of per diem allowances for the immediate
family of the employee to and from the assignment
location;
(4) section 5724a(c) of this title, for subsistence
expenses of the employee and his immediate family while
occupying temporary quarters at the assignment location
and on return to his former post of duty;
(5) section 5724a(g) of this title, to be used by
the employee for miscellaneous expenses related to
change of station where movement or storage of
household goods is involved; and
(6) section 5726(c) of this title, for the expenses
of nontemporary storage of household goods and personal
effects in connection with assignment at an isolated
location.
(b) Expenses specified in subsection (a) of this section,
other than those in paragraph (1)(C), may not be allowed in
connection with the assignment of a Federal or State or local
government employee under this subchapter, unless and until the
employee agrees in writing to complete the entire period of his
assignment or one year, whichever is shorter, unless separated
or reassigned for reasons beyond his control that are
acceptable to the Federal agency concerned. If the employee
violates the agreement, the money spent by the United States
for these expenses is recoverable from the employee as a debt
due the United States. The head of the Federal agency concerned
may waive in whole or in part a right of recovery under this
subsection with respect to a State or local government employee
on assignment with the agency.
(c) Appropriations of a Federal agency are available to pay
expenses under section 5742 of this title with respect to a
Federal or State or local government employee assigned under
this subchapter.
Sec. 3376. Regulations
The President may prescribe regulations for the
administration of this subchapter.
SUBCHAPTER VII--AIR TRAFFIC CONTROLLERS
Sec. 3381. Training
(a) An air traffic controller with 5 years of service as a
controller who is to be removed as a controller because the
Secretary has determined--
(1) he is medically disqualified for duties as a
controller;
(2) he is unable to maintain technical proficiency
as a controller; or
(3) such removal is necessary for the preservation
of the physical or mental health of the controller;
is entitled to not more than the full-time equivalent of 2
years of training.
(b) During a period of training under this section, a
controller shall be--
(1) retained at his last assigned grade and rate of
basic pay as a controller;
(2) entitled to each increase in rate of basic pay
provided under law; and
(3) excluded from staffing limitations otherwise
applicable.
(c) Upon completion of training under this section, a
controller may be--
(1) assigned to other duties in the Executive
agency in which the controller is employed;
(2) released for transfer to another Executive
agency; or
(3) involuntarily separated from the service.
The involuntary separation of a controller under this
subsection is not a removal for cause on charges of misconduct,
delinquency, or inefficiency for purposes of section 5595 or
section 8336 of this title.
(d) The Secretary, without regard to section 3324(a) and
(b) of title 31, may pay, or reimburse a controller for, all or
part of the necessary expenses of training provided under this
section, including expenses authorized to be paid under chapter
41 and subchapter I of chapter 57 of this title, and the costs
of other services or facilities directly related to the
training of a controller.
(e) Except as provided by subsection (d) of this section,
the provisions of chapter 41 of this title, other than sections
4105, 4107(a) and (b), and 4111, shall not apply to training
under this section.
(f) The provisions of this section shall not otherwise
affect the authority of the Secretary to provide training under
chapter 41 of this title or under any other provision of law.
Sec. 3382. Involuntary separation for retirement
An air traffic controller who is eligible for immediate
retirement under section 8336 of this title may be separated
involuntarily from the service if the Secretary determines that
the separation of the controller is necessary in the interest
of--
(1) aviation safety;
(2) the efficient control of air traffic; or
(3) the preservation of the physical or mental
health of the controller.
Chapter 75 of this title does not apply to a determination or
action under this section. Separation under this section shall
not become final, without the consent of the controller, until
the last day of the second month following the day the
controller receives a notification of the determination by the
Secretary under this section, or, if a review is requested
under section 3383 of this title, the last day of the month in
which a final decision is issued by a board of review under
section 3383(c) of this title, whichever is later. A controller
who is to be separated under this section is entitled to
training under section 3381 of this title. Separation of such a
controller who elects to receive training under section 3381
shall not become final until the last day of the month
following the completion of his training.
Sec. 3383. Determinations; review procedures
(a) An air traffic controller subject to a determination by
the Secretary under section 3381(a) or section 3382 of this
title, shall be furnished a written notice of the determination
and the reasons therefor, and a notification that the
controller has 15 days after the receipt of the notification
within which to file a written request for reconsideration of
the determination. Unless the controller files such a request
within the 15 days, or unless the determination is rescinded by
the Secretary within the 15 days, the determination shall be
final.
(b) If the Secretary does not rescind his determination
within 15 days after his receipt of the written request filed
by the controller under subsection (a) of this section, the
Secretary shall immediately convene a board of review,
consisting of--
(1) a person designated by the controller;
(2) a representative of the Executive agency in
which the controller is employed designated by the
Secretary; and
(3) a representative of the Merit Systems
Protection Board, designated by the Chairman, who shall
serve as chairman of the board of review.
(c) The board of review shall review evidence supporting
and inconsistent with the determination of the Secretary and,
within a period of 30 days after being convened, shall issue
its findings and furnish copies thereof to the Secretary and
the controller. The board may approve or rescind the
determination of the Secretary. A decision by the board under
this subsection is final. The Secretary shall take such action
as may be necessary to carry out the decision of the board.
(d) Except as provided under section 3382 of this title,
the review procedure of this section is in addition to any
other review or appeal procedures provided under any other
provision of law, but is the sole and exclusive administrative
remedy available to a controller within the Executive agency in
which such controller is employed.
Sec. 3384. Regulations
The Secretary is authorized to issue regulations to carry
out the provisions of this subchapter.
Sec. 3385. Effect on other authority
This subchapter shall not limit the authority of the
Secretary to reassign temporarily an air traffic controller to
other duties with or without notice, in the interest of the
safe or efficient separation and control of air traffic or the
physical or mental health of a controller; or to reassign
permanently or separate a controller under any other provision
of law.
SUBCHAPTER VIII--APPOINTMENT, REASSIGNMENT, TRANSFER, AND DEVELOPMENT
IN THE SENIOR EXECUTIVE SERVICE
Sec. 3391. Definitions
For the purpose of this subchapter, ``agency'', ``Senior
Executive Service position'', ``senior executive'', ``career
appointee'', ``limited term appointee'', ``limited emergency
appointee'', ``noncareer appointee'', and ``general position''
have the meanings set forth in section 3132(a) of this title.
Sec. 3392. General appointment provisions
(a) Qualification standards shall be established by the
head of each agency for each Senior Executive Service position
in the agency--
(1) in accordance with requirements established by
the Office of Personnel Management, with respect to
standards for career reserved positions, and
(2) after consultation with the Office, with
respect to standards for general positions.
(b) Not more than 30 percent of the Senior Executive
Service positions authorized under section 3133 of this title
may at any time be filled by individuals who did not have 5
years of current continuous service in the civil service
immediately preceding their initial appointment to the Senior
Executive Service, unless the President certifies to the
Congress that the limitation would hinder the efficiency of the
Government. In applying the preceding sentence, any break in
service of 3 days or less shall be disregarded.
(c)(1) If a career appointee is appointed by the President,
by and with the advice and consent of the Senate, to a civilian
position in the executive branch which is not in the Senior
Executive Service, and the rate of basic pay payable for which
is equal to or greater than the rate payable for level V of the
Executive Schedule, the career appointee may elect (at such
time and in such manner as the Office may prescribe) to
continue to have the provisions of this title relating to basic
pay, performance awards, awarding of ranks, severance pay,
leave, and retirement apply as if the career appointee remained
in the Senior Executive Service position from which he was
appointed. Such provisions shall apply in lieu of the
provisions which would otherwise apply--
(A) to the extent provided under regulations
prescribed by the Office, and
(B) so long as the appointee continues to serve
under such Presidential appointment.
(2) An election under paragraph (1) may also be made by any
career appointee who is appointed to a civilian position in the
executive branch--
(A) which is not in the Senior Executive Service;
and
(B) which is covered by the Executive Schedule, or
the rate of basic pay for which is fixed by statute at
a rate equal to 1 of the levels of the Executive
Schedule.
An election under this paragraph shall remain effective so long
as the appointee continues to serve in the same position.
(d) Appointment or removal of a person to or from any
Senior Executive Service position in an independent regulatory
commission shall not be subject, directly or indirectly, to
review or approval by any officer or entity within the
Executive Office of the President.
Sec. 3393. Career appointments
(a) Each agency shall establish a recruitment program, in
accordance with guidelines which shall be issued by the Office
of Personnel Management, which provides for recruitment of
career appointees from--
(1) all groups of qualified individuals within the
civil service; or
(2) all groups of qualified individuals whether or
not within the civil service.
(b) Each agency shall establish one or more executive
resources boards, as appropriate, the members of which shall be
appointed by the head of the agency from among employees of the
agency or commissioned officers of the uniformed services
serving on active duty in such agency. The boards shall, in
accordance with merit staffing requirements established by the
Office, conduct the merit staffing process for career
appointees, including--
(1) reviewing the executive qualifications of each
candidate for a position to be filled by a career
appointee; and
(2) making written recommendations to the
appropriate appointing authority concerning such
candidates.
(c)(1) The Office shall establish one or more
qualifications review boards, as appropriate. It is the
function of the boards to certify the executive qualifications
of candidates for initial appointment as career appointees in
accordance with regulations prescribed by the Office. Of the
members of each board more than one-half shall be appointed
from among career appointees. Appointments to such boards shall
be made on a non-partisan basis, the sole selection criterion
being the professional knowledge of public management and
knowledge of the appropriate occupational fields of the
intended appointee.
(2) The Office shall, in consultation with the various
qualification review boards, prescribe criteria for
establishing executive qualifications for appointment of career
appointees. The criteria shall provide for--
(A) consideration of demonstrated executive
experience;
(B) consideration of successful participation in a
career executive development program which is approved
by the Office; and
(C) sufficient flexibility to allow for the
appointment of individuals who have special or unique
qualities which indicate a likelihood of executive
success and who would not otherwise be eligible for
appointment.
(d) An individual's initial appointment as a career
appointee shall become final only after the individual has
served a 1-year probationary period as a career appointee.
(e) Each career appointee shall meet the executive
qualifications of the position to which appointed, as
determined in writing by the appointing authority.
(f) The title of each career reserved position shall be
published in the Federal Register.
(g) A career appointee may not be removed from the Senior
Executive Service or civil service except in accordance with
the applicable provisions of sections 1215, 3393a, 3592, 3595,
7532, or 7543 of this title.
Sec. 3393a. Recertification
(a)(1) In order to ensure that the performance of career
appointees demonstrates the excellence needed to meet the goals
of the Senior Executive Service, as set forth in section 3131,
each career appointee shall be subject to recertification by
the employing agency in accordance with the provisions of this
section.
(2) Beginning in calendar year 1991, and recurring every
third calendar year thereafter, the head of an agency shall
determine a time during such calendar year when the performance
of career appointees in the agency shall be subject to
recertification. Recertification shall not be required or any
career appointee who has not been continuously employed as a
senior executive for the 156 weeks preceding the time
determined for the recertification. For the purposes of the
previous sentence, a break in service of 6 months shall be
deemed not to interrupt the 156 weeks of continuous employment.
(b) The supervising official of each career appointee shall
submit to a performance review board established by the agency
under section 4314 a recommendation as to whether the career
appointee's performance justifies recertification as a senior
executive, based on such factors as the career appointee's
performance ratings for the 3 preceding years under section
4314, any award or other recognition received by the career
appointee, any developmental activities of the career
appointee, and any other relevant factors. The supervising
official's recommendation shall reflect that official's view as
to whether the career appointee's overall performance over the
3 preceding years has demonstrated the excellence expected of a
senior executive in relation to the written performance
requirements for the career appointee's senior executive
position as established under section 4312(b). The career
appointee may submit to the performance review board a
statement of accomplishments and other documentation giving
evidence of the quality of the career appointee's performance.
(c)(1) After considering the recommendation and other
information received under subsection (b), the performance
review board shall submit to the appointing authority a
recommendation as to whether the career appointee should be
recertified, conditionally recertified, or not recertified as a
senior executive. If the board proposes to recommend
conditional recertification or non-recertification, then the
affected appointee shall be so notified and shall have the
opportunity to appear before the performance review board. If
the board is recommending that the career appointee be
recertified, the board may also recommend that the career
appointee's rate of pay be increased to a higher rate
established under section 5382. If the board is recommending
that the career appointee be conditionally recertified, the
board may recommend that the career appointee's pay be reduced
to the next lower rate established under section 5382. The
board shall also provide to the appointing authority the
recommendation and other information received under subsection
(b).
(2) More than one-half of the members of a performance
review board under this section shall consist of career
appointees. The requirement of the preceding sentence shall not
apply in any case in which the Office of Personnel Management
determines that there exists an insufficient number of career
appointees available to comply with the requirement.
(d)(1) If the appointing authority determines that the
career appointee's performance during the preceding 3 years
demonstrates the excellence expected of a senior executive, the
appointing authority shall recommend to the head of the agency
that the career appointee be recertified as a senior executive.
(2) If the appointing authority determines that the career
appointee's performance has not demonstrated the excellence
expected of a senior executive, the appointing authority shall
recommend to the head of the agency that the career appointee
be conditionally recertified as a senior executive or not be
recertified as a senior executive.
(e)(1) If the head of the agency decides that the career
appointee's performance warrants recertification as a senior
executive, the career appointee shall continue in the Senior
Executive Service. If a career appointee is recertified as a
senior executive, the career appointee's rate of basic pay may
not be reduced at the time of recertification.
(2) If the head of the agency decides that the career
appointee's performance does not warrant full recertification,
but does warrant conditional recertification, the career
appointee--
(A) shall remain a career appointee in the Senior
Executive Service;
(B) shall be subject to continuing close review of
the career appointee's performance by the supervising
official in coordination with an executive resources
board established under section 3393, in accordance
with a performance improvement plan developed by the
supervising official and subject to the approval of the
executive resources board;
(C) may, if the head of the agency so determines,
be reduced to the next lower rate of basic pay
established under section 5382; and
(D) shall be removed from the Senior Executive
Service if the career appointee is not recertified as a
senior executive at the end of the 12-month period
following the conditional recertification.
If, at the end of the 12-month period following the conditional
recertification, the career appointee is recertified as a
senior executive, any reduction that was made in the career
appointee's rate of basic pay under subparagraph (C) shall be
restored prospectively.
(3) If the head of the agency decides that the career
appointee's performance does not demonstrate that the career
appointee qualifies for recertification or conditional
recertification as a senior executive, the career appointee
shall be removed from the Senior Executive Service in
accordance with section 3592.
(f) The Office of Personnel Management shall prescribe
standards and procedures to ensure consistency and fairness for
the process of recertification under this section.
Sec. 3394. Noncareer and limited appointments
(a) Each noncareer appointee, limited term appointee, and
limited emergency appointee shall meet the qualifications of
the position to which appointed, as determined in writing by
the appointing authority.
(b) An individual may not be appointed as a limited term
appointee or as a limited emergency appointee without the prior
approval of the exercise of such appointing authority by the
Office of Personnel Management.
Sec. 3395. Reassignment and transfer within the Senior Executive
Service
(a)(1) A career appointee in an agency--
(A) may, subject to paragraph (2) of this
subsection, be reassigned to any Senior Executive
Service position in the same agency for which the
appointee is qualified; and
(B) may transfer to a Senior Executive Service
position in another agency for which the appointee is
qualified, with the approval of the agency to which the
appointee transfers.
(2)(A) Except as provided in subparagraph (B) of this
paragraph, a career appointee may be reassigned to any Senior
Executive Service position only if the career appointee
receives written notice of the reassignment at least 15 days
before the effective date of such reassignment.
(B)(i) A career appointee may not be reassigned to a Senior
Executive Service position outside the career appointee's
commuting area unless--
(I) before providing notice under subclause (II) of
this clause (or seeking or obtaining the consent of the
career appointee under clause (ii) of this subparagraph
to waive such notice), the agency consults with the
career appointee on the reasons for, and the
appointee's preferences with respect to, the proposed
reassignment; and
(II) the career appointee receives written notice
of the reassignment, including a statement of the
reasons for the reassignment, at least 60 days before
the effective date of the reassignment.
(ii) Notice of reassignment under clause (i)(II) of this
subparagraph may be waived with the written consent of the
career appointee involved.
(b)(1) Notwithstanding section 3394(b) of this title, a
limited emergency appointee may be reassigned to another Senior
Executive Service position in the same agency established to
meet a bona fide, unanticipated, urgent need, except that the
appointee may not serve in one or more positions in such agency
under such appointment in excess of 18 months.
(2) Notwithstanding section 3394(b) of this title, a
limited term appointee may be reassigned to another Senior
Executive Service position in the same agency the duties of
which will expire at the end of a term of 3 years or less,
except that the appointee may not serve in one or more
positions in the agency under such appointment in excess of 3
years.
(c) A limited term appointee or a limited emergency
appointee may not be appointed to, or continue to hold, a
position under such an appointment if, within the preceding 48
months, the individual has served more than 36 months, in the
aggregate, under any combination of such types of appointment.
(d) A noncareer appointee in an agency--
(1) may be reassigned to any general position in
the agency for which the appointee is qualified; and
(2) may transfer to a general position in another
agency with the approval of the agency to which the
appointee transfers.
(e)(1) Except as provided in paragraph (2) of this
subsection, a career appointee in an agency may not be
involuntarily reassigned--
(A) within 120 days after an appointment of the
head of the agency; or
(B) within 120 days after the appointment in the
agency of the career appointee's most immediate
supervisor who--
(i) is a noncareer appointee; and
(ii) has the authority to make an initial
appraisal of the career appointee's performance
under subchapter II of chapter 43.
(2) Paragraph (1) of this subsection does not apply with
respect to--
(A) any reassignment under section 4314(b)(3) of
this title; or
(B) any disciplinary action initiated before an
appointment referred to in paragraph (1) of this
subsection.
(3) For the purpose of applying paragraph (1) to a career
appointee, any days (not to exceed a total of 60) during which
such career appointee is serving pursuant to a detail or other
temporary assignment apart from such appointee's regular
position shall not be counted in determining the number of days
that have elapsed since an appointment referred to in
subparagraph (A) or (B) of such paragraph.
Sec. 3396. Development for and within the Senior Executive Service
(a) The Office of Personnel Management shall establish
programs for the systematic development of candidates for the
Senior Executive Service and for the continuing development of
senior executives, or require agencies to establish such
programs which meet criteria prescribed by the Office.
(b) The Office shall assist agencies in the establishment
of programs required under subsection (a) of this section and
shall monitor the implementation of the programs. If the Office
finds that any agency's program under subsection (a) of this
section is not in compliance with the criteria prescribed under
such subsection, it shall require the agency to take such
corrective action as may be necessary to bring the program into
compliance with the criteria.
(c)(1) The head of an agency may grant a sabbatical to any
career appointee for not to exceed 11 months in order to permit
the appointee to engage in study or uncompensated work
experience which will contribute to the appointee's development
and effectiveness. A sabbatical shall not result in loss of, or
reduction in, pay, leave to which the career appointee is
otherwise entitled, credit for time or service, or performance
or efficiency rating. The head of the agency may authorize in
accordance with chapter 57 of this title such travel expenses
(including per diem allowances) as the head of the agency may
determine to be essential for the study or experience.
(2) A sabbatical under this subsection may not be granted
to any career appointee--
(A) more than once in any 10-year period;
(B) unless the appointee has completed 7 years of
service--
(i) in one or more positions in the Senior
Executive Service;
(ii) in one or more other positions in the
civil service the level of duties and
responsibilities of which are equivalent to the
level of duties and responsibilities of
positions in the Senior Executive Service; or
(iii) in any combination of such positions,
except that not less than 2 years of such 7
years of service must be in the Senior
Executive Service; and
(C) if the appointee is eligible for voluntary
retirement with a right to an immediate annuity under
section 8336 of this title.
Any period of assignment under section 3373 of this title,
relating to assignments of employees to State and local
governments, shall not be considered a period of service for
the purpose of subparagraph (B) of this paragraph.
(3)(A) Any career appointee in an agency may be granted a
sabbatical under this subsection only if the appointee agrees,
as a condition of accepting the sabbatical, to serve in the
civil service upon the completion of the sabbatical for a
period of 2 consecutive years.
(B) Each agreement required under subparagraph (A) of this
paragraph shall provide that in the event the career appointee
fails to carry out the agreement (except for good and
sufficient reason as determined by the head of the agency who
granted the sabbatical) the appointee shall be liable to the
United States for payment of all expenses (including salary) of
the sabbatical. The amount shall be treated as a debt due the
United States.
(d)(1) The Office shall encourage and assist individuals to
improve their skills and increase their contribution by service
in a variety of agencies as well as by accepting temporary
placements in State or local governments or in the private
sector.
(2) In order to promote the professional development of
career appointees and to assist them in achieving their maximum
levels of proficiency, the Office shall, in a manner consistent
with the needs of the Government provide appropriate
informational services and otherwise encourage career
appointees to take advantage of any opportunities relating to--
(A) sabbaticals;
(B) training; or
(C) details or other temporary assignments in other
agencies, State or local governments, or the private
sector.
Sec. 3397. Regulations
The Office of Personnel Management shall prescribe
regulations to carry out the purpose of this subchapter.
CHAPTER 34--PART-TIME CAREER EMPLOYMENT OPPORTUNITIES
Sec.
3401. Definitions.
3402. Establishment of part-time career employment programs.
3403. Limitations.
3404. Personnel ceilings.
3405. Nonapplicability.
3406. Regulations.
[3407. Repealed.]
3408. Employee organization representation.
Sec. 3401. Definitions
For the purpose of this chapter--
(1) ``agency'' means--
(A) an Executive agency;
(B) a military department;
(C) an agency in the judicial branch;
(D) the Library of Congress;
(E) the Botanic Garden; and
(F) the Office of the Architect of the
Capitol;
but does not include--
(i) a Government controlled corporation;
(ii) the Tennessee Valley Authority;
(iii) the Alaska Railroad;
(iv) the Virgin Islands Corporation;
(v) the Federal Bureau of Investigation,
Department of Justice;
(vi) the Central Intelligence Agency; and
(vii) the National Security Agency,
Department of Defense; and
(2) ``part-time career employment'' means part-time
employment of 16 to 32 hours a week (or 32 to 64 hours
during a biweekly pay period in the case of a flexible
or compressed work schedule under subchapter II of
chapter 61 of this title) under a schedule consisting
of an equal or varied number of hours per day, whether
in a position which would be part-time without regard
to this section or one established to allow job-sharing
or comparable arrangements, but does not include
employment on a temporary or intermittent basis.
Sec. 3402. Establishment of part-time career employment programs
(a)(1) In order to promote part-time career employment
opportunities in all grade levels, the head of each agency, by
regulation, shall establish and maintain a program for part-
time career employment within such agency. Such regulations
shall provide for--
(A) the review of positions which, after such
positions become vacant, may be filled on a part-time
career employment basis (including the establishment of
criteria to be used in identifying such positions);
(B) procedures and criteria to be used in
connection with establishing or converting positions
for part-time career employment, subject to the
limitations of section 3403 of this title;
(C) annual goals for establishing or converting
positions for part-time career employment, and a
timetable setting forth interim and final deadlines for
achieving such goals;
(D) a continuing review and evaluation of the part-
time career employment program established under such
regulations; and
(E) procedures for notifying the public of vacant
part-time positions in such agency, utilizing
facilities and funds otherwise available to such agency
for the dissemination of information.
(2) The head of each agency shall provide for communication
between, and coordination of the activities of, the individuals
within such agency whose responsibilities relate to the part-
time career employment program established within that agency.
(3) Regulations established under paragraph (1) of this
subsection may provide for such exceptions as may be necessary
to carry out the mission of the agency.
(b)(1) The Office of Personnel Management, by regulation,
shall establish and maintain a program under which it shall, on
the request of an agency, advise and assist such agency in the
establishment and maintenance of its part-time career
employment program under this chapter.
(2) The Office shall conduct a research and demonstration
program with respect to part-time career employment within the
Federal Government. In particular, such program shall be
directed to--
(A) determining the extent to which part-time
career employment may be used in filling positions
which have not traditionally been open for such
employment on any extensive basis, such as supervisory,
managerial, and professional positions;
(B) determining the extent to which job-sharing
arrangements may be established for various occupations
and positions; and
(C) evaluating attitudes, benefits, costs,
efficiency, and productivity associated with part-time
career employment, as well as its various sociological
effects as a mode of employment.
Sec. 3403. Limitations
(a) An agency shall not abolish any position occupied by an
employee in order to make the duties of such position available
to be performed on a part-time career employment basis.
(b) Any person who is employed on a full-time basis in an
agency shall not be required to accept part-time employment as
a condition of continued employment.
Sec. 3404. Personnel ceilings
In administering any personnel ceiling applicable to an
agency (or unit therein), an employee employed by such agency
on a part-time career employment basis shall be counted as a
fraction which is determined by dividing 40 hours into the
average number of hours of such employee's regularly scheduled
workweek. This section shall become effective on October 1,
1980.
Sec. 3405. Nonapplicability
(a) If, on the date of enactment of this chapter, there is
in effect with respect to positions within an agency a
collective-bargaining agreement which establishes the number of
hours of employment a week, then this chapter shall not apply
to those positions.
(b) This chapter shall not require part-time career
employment in positions the rate of basic pay for which is
fixed at a rate equal to or greater than the minimum rate
payable under section 5376.
Sec. 3406. Regulations
Before any regulation is prescribed under this chapter, a
copy of the proposed regulation shall be published in the
Federal Register and an opportunity provided to interested
parties to present written comment and, where practicable, oral
comment. Initial regulations shall be prescribed not later than
180 days after the date of the enactment of this chapter.
[Sec. 3407. Repealed. Pub. L. 104-66, Sec. 3001(a)(1), Dec. 21, 1995,
109 Stat. 733.]
Sec. 3408. Employee organization representation
If an employee organization has been accorded exclusive
recognition with respect to a unit within an agency, then the
employee organization shall be entitled to represent all
employees within that unit employed on a part-time career
employment basis.
CHAPTER 35--RETENTION PREFERENCE, RESTORATION, AND REEMPLOYMENT
SUBCHAPTER I--RETENTION PREFERENCE
Sec.
3501. Definitions; application.
3502. Order of retention.
3503. Transfer of functions.
3504. Preference eligibles; retention; physical qualifications;
waiver.
[SUBCHAPTER II--REPEALED]
[3551. Repealed.]
SUBCHAPTER III--REINSTATEMENT OR RESTORATION AFTER SUSPENSION OR REMOVAL
FOR NATIONAL SECURITY
3571. Reinstatement or restoration; individuals suspended or removed
for national security.
SUBCHAPTER IV--REEMPLOYMENT AFTER SERVICE WITH AN INTERNATIONAL
ORGANIZATION
3581. Definitions.
3582. Rights of transferring employees.
3583. Computations.
3584. Regulations.
SUBCHAPTER V--REMOVAL, REINSTATEMENT, AND GUARANTEED PLACEMENT IN THE
SENIOR EXECUTIVE SERVICE
3591. Definitions.
3592. Removal from the Senior Executive Service.
3593. Reinstatement in the Senior Executive Service.
3594. Guaranteed placement in other personnel systems.
3595. Reduction in force in the Senior Executive Service.
3595a. Furlough in the Senior Executive Service.
3596. Regulations.
SUBCHAPTER VI--REEMPLOYMENT FOLLOWING LIMITED APPOINTMENT IN THE FOREIGN
SERVICE
3597. Reemployment following limited appointment in the Foreign
Service.
SUBCHAPTER I--RETENTION PREFERENCE
Sec. 3501. Definitions; application
(a) For the purpose of this subchapter, except section
3504--
(1) ``active service'' has the meaning given it by
section 101 of title 37;
(2) ``a retired member of a uniformed service''
means a member or former member of a uniformed service
who is entitled, under statute, to retired, retirement,
or retainer pay on account of his service as such a
member; and
(3) a preference eligible employee who is a retired
member of a uniformed service is considered a
preference eligible only if--
(A) his retirement was based on
disability--
(i) resulting from injury or
disease received in line of duty as a
direct result of armed conflict; or
(ii) caused by an instrumentality
of war and incurred in the line of duty
during a period of war as defined by
sections 101 and 301 of title 38;
(B) his service does not include twenty or
more years of full-time active service,
regardless of when performed but not including
period of active duty for training; or
(C) on November 30, 1964, he was employed
in a position to which this subchapter applies
and thereafter he continued to be so employed
without a break in service of more than 30
days.
(b) Except as otherwise provided by this subsection and
section 3504 of this title, this subchapter applies to each
employee in or under an Executive agency. This subchapter does
not apply to an employee whose appointment is required by
Congress to be confirmed by, or made with the advice and
consent of, the Senate or to a member of the Senior Executive
Service or the Federal Bureau of Investigation and Drug
Enforcement Administration Senior Executive Service.
Sec. 3502. Order of retention
(a) The Office of Personnel Management shall prescribe
regulations for the release of competing employees in a
reduction in force which give due effect to--
(1) tenure of employment;
(2) military preference, subject to section
3501(a)(3) of this title;
(3) length of service; and
(4) efficiency or performance ratings.
In computing length of service, a competing employee--
(A) who is not a retired member of a uniformed
service is entitled to credit for the total length of
time in active service in the armed forces;
(B) who is a retired member of a uniformed service
is entitled to credit for--
(i) the length of time in active service in
the armed forces during a war, or in a campaign
or expedition for which a campaign badge has
been authorized; or
(ii) the total length of time in active
service in the armed forces if he is included
under section 3501(a)(3) (A), (B), or (C) of
this title; and
(C) is entitled to credit for--
(i) service rendered as an employee of a
county committee established pursuant to
section 8(b) of the Soil Conservation and
Allotment Act or of a committee or association
of producers described in section 10(b) of the
Agricultural Adjustment Act; and
(ii) service rendered as an employee
described in section 2105(c) if such employee
moves or has moved, on or after January 1,
1966, without a break in service of more than 3
days, from a position in a nonappropriated fund
instrumentality of the Department of Defense or
the Coast Guard to a position in the Department
of Defense or the Coast Guard, respectively,
that is not described in section 2105(c).
(b) A preference eligible described in section 2108(3)(C)
of this title who has a compensable service-connected
disability of 30 percent or more and whose performance has not
been rated unacceptable under a performance appraisal system
implemented under chapter 43 of this title is entitled to be
retained in preference to other preference eligibles.
(c) An employee who is entitled to retention preference and
whose performance has not been rated unacceptable under a
performance appraisal system implemented under chapter 43 of
this title is entitled to be retained in preference to other
competing employees.
(d)(1) Except as provided under subsection (e), an employee
may not be released, due to a reduction in force, unless--
(A) such employee and such employee's exclusive
representative for collective-bargaining purposes (if
any) are given written notice, in conformance with the
requirements of paragraph (2), at least 60 days before
such employee is so released; and
(B) if the reduction in force would involve the
separation of a significant number of employees, the
requirements of paragraph (3) are met at least 60 days
before any employee is so released.
(2) Any notice under paragraph (1)(A) shall include--
(A) the personnel action to be taken with respect
to the employee involved;
(B) the effective date of the action;
(C) a description of the procedures applicable in
identifying employees for release;
(D) the employee's ranking relative to other
competing employees, and how that ranking was
determined; and
(E) a description of any appeal or other rights
which may be available.
(3) Notice under paragraph (1)(B)--
(A) shall be given to--
(i) the State or entity designated by the
State to carry out rapid response activities
under section 134(a)(2)(A) of the Workforce
Investment Act of 1998; and
(ii) the chief elected official of such
unit or each of such units of local government
as may be appropriate; and
(B) shall consist of written notification as to--
(i) the number of employees to be separated
from service due to the reduction in force
(broken down by geographic area or on such
other basis as may be required under paragraph
(4));
(ii) when those separations will occur; and
(iii) any other matter which might
facilitate the delivery of rapid response
assistance or other services under title I of
the Workforce Investment Act of 1998.
(4) The Office shall prescribe such regulations as may be
necessary to carry out this subsection. The Office shall
consult with the Secretary of Labor on matters relating to
title I of the Workforce Investment Act of 1998.
(e)(1) Subject to paragraph (3), upon request submitted
under paragraph (2), the President may, in writing, shorten the
period of advance notice required under subsection (d)(1)(A)
and (B), with respect to a particular reduction in force, if
necessary because of circumstances not reasonably foreseeable.
(2) A request to shorten notice periods shall be submitted
to the President by the head of the agency involved, and shall
indicate the reduction in force to which the request pertains,
the number of days by which the agency head requests that the
periods be shortened, and the reasons why the request is
necessary.
(3) No notice period may be shortened to less than 30 days
under this subsection.
(f)(1) The Secretary of Defense or the Secretary of a
military department may--
(A) separate from service any employee who
volunteers to be separated under this subparagraph even
though the employee is not otherwise subject to
separation due to a reduction in force; and
(B) for each employee voluntarily separated under
subparagraph (A), retain an employee in a similar
position who would otherwise be separated due to a
reduction in force.
(2) The separation of an employee under paragraph (1)(A)
shall be treated as an involuntary separation due to a
reduction in force.
(3) An employee with critical knowledge and skills (as
defined by the Secretary concerned) may not participate in a
voluntary separation under paragraph (1)(A) if the Secretary
concerned determines that such participation would impair the
performance of the mission of the Department of Defense or the
military department concerned.
(4) The regulations prescribed under this section shall
incorporate the authority provided in this subsection.
(5) No authority under paragraph (1) may be exercised after
September 30, 2005.
Sec. 3503. Transfer of functions
(a) When a function is transferred from one agency to
another, each competing employee in the function shall be
transferred to the receiving agency for employment in a
position for which he is qualified before the receiving agency
may make an appointment from another source to that position.
(b) When one agency is replaced by another, each competing
employee in the agency to be replaced shall be transferred to
the replacing agency for employment in a position for which he
is qualified before the replacing agency may make an
appointment from another source to that position.
Sec. 3504. Preference eligibles; retention; physical qualifications;
waiver
(a) In determining qualifications of a preference eligible
for retention in a position in the competitive service, an
Executive agency, or the government of the District of
Columbia, the Office of Personnel Management or other examining
agency shall waive--
(1) requirements as to age, height, and weight,
unless the requirement is essential to the performance
of the duties of the position; and
(2) physical requirements if, in the opinion of the
Office or other examining agency, after considering the
recommendation of an accredited physician, the
preference eligible is physically able to perform
efficiently the duties of the position.
(b) If an examining agency determines that, on the basis of
evidence before it, a preference eligible described in section
2108(3)(C) of this title who has a compensable service-
connected disability of 30 percent or more is not able to
fulfill the physical requirements of the position, the
examining agency shall notify the Office of the determination
and, at the same time, the examining agency shall notify the
preference eligible of the reasons for the determination and of
the right to respond, within 15 days of the date of the
notification, to the Office. The Office shall require a
demonstration by the appointing authority that the notification
was timely sent to the preference eligible's last known address
and shall, before the selection of any other person for the
position, make a final determination on the physical ability of
the preference eligible to perform the duties of the position,
taking into account any additional information provided in the
response. When the Office has completed its review of the
proposed disqualification on the basis of physical disability,
it shall send its findings to the appointing authority and the
preference eligible. The appointing authority shall comply with
the findings of the Office. The functions of the Office under
this subsection may not be delegated.
[SUBCHAPTER II--RESTORATION AFTER ACTIVE DUTY OR TRAINING DUTY]
[Sec. 3551. Repealed. Section 2(b)(2)(B) of P.L. 103-353, 108 Stat.
3169.]
SUBCHAPTER III--REINSTATEMENT OR RESTORATION AFTER SUSPENSION OR
REMOVAL FOR NATIONAL SECURITY
Sec. 3571. Reinstatement or restoration; individuals suspended or
removed for national security
An individual suspended or removed under section 7532 of
this title may be restored to duty in the discretion of the
head of the agency concerned.
SUBCHAPTER IV--REEMPLOYMENT AFTER SERVICE WITH AN INTERNATIONAL
ORGANIZATION
Sec. 3581. Definitions
For the purpose of this subchapter--
(1) ``agency'' means--
(A) an Executive agency;
(B) a military department; and
(C) an employing authority in the
legislative branch;
(2) ``employee'' means an employee in or under an
agency;
(3) ``international organization'' means a public
international organization or international-
organization preparatory commission in which the
Government of the United States participates;
(4) ``transfer'' means the change of position by an
employee from an agency to an international
organization; and
(5) ``reemployment'' means--
(A) the reemployment of an employee under
section 3582(b) of this title; or
(B) the reemployment of a Congressional
employee within 90 days from his separation
from an international organization;
following a term of employment not extending beyond the
period named by the head of the agency at the time of
consent to transfer or, in the absence of a named
period, not extending beyond the first 5 consecutive
years, or any extension thereof, after entering the
employ of the international organization.
Sec. 3582. Rights of transferring employees
(a) An employee serving under an appointment not limited to
1 year or less who transfers to an international organization
with the consent of the head of his agency is entitled--
(1) to retain coverage, rights, and benefits under
any system established by law for the retirement of
employees, if necessary employee deductions and agency
contributions in payment for the coverage, rights, and
benefits for the period of employment with the
international organization are currently deposited in
the system's fund or depository; and the period during
which coverage, rights, and benefits are retained under
this paragraph is deemed creditable service under the
system, except that such service shall not be
considered creditable service for the purpose of any
retirement system for transferring personnel, if such
service forms the basis, in whole or in part, for an
annuity or pension under the retirement system of the
international organization;
(2) to retain coverage, rights, and benefits under
chapters 87 and 89 of this title, if necessary employee
deductions and agency contributions in payment for the
coverage, rights, and benefits for the period of
employment with the international organization are
currently deposited in the Employees' Life Insurance
Fund and the Employees' Health Benefits Fund, as
applicable, and the period during which coverage,
rights, and benefits are retained under this paragraph
is deemed service as an employee under chapters 87 and
89 of this title;
(3) to retain coverage, rights, and benefits under
subchapter I of chapter 81 of this title, and for this
purpose his employment with the international
organization is deemed employment by the United States,
but if he or his dependents receive from the
international organization a payment, allowance,
gratuity, payment under an insurance policy for which
the premium is wholly paid by the international
organization, or other benefit of any kind on account
of the same injury or death, the amount thereof, is
credited against disability or death compensation, as
the case may be, payable under subchapter I of chapter
81 of this title; and
(4) to elect to retain to his credit all
accumulated and current accrued annual leave to which
entitled at the time of transfer which would otherwise
be liquidated by a lump-sum payment. On his request at
any time before reemployment, he shall be paid for the
annual leave retained. If he receives a lump-sum
payment and is reemployed within 6 months after
transfer, he shall refund to the agency the amount of
the lump-sum payment. This paragraph does not operate
to cause a forfeiture of retained annual leave
following reemployment or to deprive an employee of a
lump-sum payment to which he would otherwise be
entitled.
(b) An employee entitled to the benefits of subsection (a)
of this section is entitled to be reemployed within 30 days of
his application for reemployment in his former position or a
position of like seniority, status, and pay in the agency from
which he transferred, if--
(1) he is separated from the international
organization within 5 years, or any extension thereof,
after entering on duty with the international
organization or within such shorter period as may be
named by the head of the agency at the time of consent
to transfer; and
(2) he applies for reemployment not later than 90
days after the separation.
On reemployment, an employee entitled to the benefits of
subsection (a) is entitled to the rate of basic pay to which
the employee would have been entitled had the employee remained
in the civil service. On reemployment, the agency shall restore
the sick leave account of the employee, by credit or charge, to
its status at the time of transfer. The period of separation
caused by the employment of the employee with the international
organization and the period necessary to effect reemployment
are deemed creditable service for all appropriate civil service
employment purposes. This subsection does not apply to a
congressional employee.
(c) This section applies only with respect to so much of a
period of employment with an international organization as does
not exceed 5 years, or any extension thereof, or such shorter
period named by the head of the agency at the time of consent
to transfer, except that for retirement and insurance purposes
this section continues to apply during the period after
separation from the international organization in which--
(1) an employee, except a Congressional employee,
is properly exercising or could exercise the
reemployment right established by subsection (b) of
this section; or
(2) a Congressional employee is effecting or could
effect a reemployment.
During that reemployment period, the employee is deemed on
leave without pay for retirement and insurance purposes.
(d) During the employee's period of service with the
international organization, the agency from which the employee
is transferred shall make contributions for retirement and
insurance purposes from the appropriations or funds of that
agency so long as contributions are made by the employee.
Sec. 3583. Computations
A computation under this subchapter before reemployment is
made in the same manner as if the employee had received basic
pay, or basic pay plus additional pay in the case of a
Congressional employee, at the rate at which it would have been
payable had the employee continued in the position in which he
was serving at the time of transfer.
Sec. 3584. Regulations
The President may prescribe regulations necessary to carry
out this subchapter and section 3343 of this title and to
protect and assure the retirement, insurance, leave, and
reemployment rights and such other similar civil service
employment rights as he finds appropriate. The regulations may
provide for the exclusion of employees from the application of
this subchapter and section 3343 of this title on the basis of
the nature and type of employment including excepted
appointments of a confidential or policy-determining character,
or conditions pertaining to the employment including short-term
appointments, seasonal or intermittent employment, and part-
time employment.
SUBCHAPTER V--REMOVAL, REINSTATEMENT, AND GUARANTEED PLACEMENT IN THE
SENIOR EXECUTIVE SERVICE
Sec. 3591. Definitions
For the purpose of this subchapter, ``agency'', ``Senior
Executive Service position'', ``senior executive'', ``career
appointee'', ``limited term appointee'', ``limited emergency
appointee'', ``noncareer appointee'', and ``general position''
have the meanings set forth in section 3132(a) of this title.
Sec. 3592. Removal from the Senior Executive Service
(a) Except as provided in subsection (b) of this section, a
career appointee may be removed from the Senior Executive
Service to a civil service position outside of the Senior
Executive Service--
(1) during the 1-year period of probation under
section 3393(d) of this title,
(2) at any time for less than fully successful
executive performance as determined under subchapter II
of chapter 43 of this title, or
(3) if the career appointee is not recertified as a
senior executive under section 3393a,
except that in the case of a removal under paragraph (2) of
this subsection the career appointee shall, at least 15 days
before the removal, be entitled, upon request, to an informal
hearing before an official designated by the Merit Systems
Protection Board at which the career appointee may appear and
present arguments, but such hearing shall not give the career
appointee the right to initiate an action with the Board under
section 7701 of this title, nor need the removal action be
delayed as a result of the granting of such hearing. In the
case of a removal under paragraph (3) of this subsection, the
career appointee shall have the right to appeal the removal
from the Senior Executive Service to the Merit Systems
Protection Board under section 7701.
(b)(1) Except as provided in paragraph (2) of this
subsection, a career appointee in an agency may not be
involuntarily removed--
(A) within 120 days after an appointment of the
head of the agency; or
(B) within 120 days after the appointment in the
agency of the career appointee's most immediate
supervisor who--
(i) is a noncareer appointee; and
(ii) has the authority to remove the career
appointee.
(2) Paragraph (1) of this subsection does not apply with
respect to--
(A) any removal under section 4314(b)(3) of this
title; or
(B) any disciplinary action initiated before an
appointment referred to in paragraph (1) of this
subsection.
(c) A limited emergency appointee, limited term appointee,
or noncareer appointee may be removed from the service at any
time.
Sec. 3593. Reinstatement in the Senior Executive Service
(a) A former career appointee may be reinstated, without
regard to section 3393(b) and (c) of this title, to any Senior
Executive Service position for which the appointee is qualified
if--
(1) the appointee has successfully completed the
probationary period established under section 3393(d)
of this title; and
(2) the appointee left the Senior Executive Service
for reasons other than misconduct, neglect of duty,
malfeasance, less than fully successful executive
performance as determined under subchapter II of
chapter 43 of this title, or failure to be recertified
as a senior executive under section 3393a.
(b) A career appointee who is appointed by the President to
any civil service position outside the Senior Executive Service
and who leaves the position for reasons other than misconduct,
neglect of duty, or malfeasance shall be entitled to be placed
in the Senior Executive Service if the appointee applies to the
Office of Personnel Management within 90 days after separation
from the Presidential appointment.
(c)(1) A former career appointee shall be reinstated,
without regard to section 3393(b) and (c) of this title, to any
vacant Senior Executive Service position in an agency for which
the appointee is qualified if--
(A) the individual was a career appointee on May
31, 1981;
(B) the appointee was removed from the Senior
Executive Service under section 3595 of this title
before October 1, 1984, due to a reduction in force in
that agency;
(C) before the removal occurred, the appointee
successfully completed the probationary period
established under section 3393(d) of this title; and
(D) the appointee applies for that vacant position
within one year after the Office receives certification
regarding that appointee pursuant to section
3595(b)(3)(B) of this title.
(2) A career appointee is entitled to appeal to the Merit
Systems Protection Board under section 7701 of this title any
determination by the agency that the appointee is not qualified
for a position for which the appointee applies under paragraph
(1) of this subsection.
Sec. 3594. Guaranteed placement in other personnel systems
(a) A career appointee who was appointed from a civil
service position held under a career or career-conditional
appointment (or an appointment of equivalent tenure, as
determined by the Office of Personnel Management) and who, for
reasons other than misconduct, neglect of duty, or malfeasance,
is removed from the Senior Executive Service during the
probationary period under section 3393(d) of this title, shall
be entitled to be placed in a civil service position (other
than a Senior Executive Service position) in any agency.
(b) A career appointee who has completed the probationary
period under section 3393(d) of this title, and who--
(1) is removed from the Senior Executive Service
for less than fully successful executive performance as
determined under subchapter II of chapter 43 of this
title;
(2) is removed from the Senior Executive Service
under paragraph (4) or (5) of section 3595(b) of this
title; or
(3) is removed from the Senior Executive Service
for failure to be recertified under section 3393a;
shall be entitled to be placed in a civil service position
(other than a Senior Executive Service position) in any agency.
(c)(1) For purposes of subsections (a) and (b) of this
section--
(A) the position in which any career appointee is
placed under such subsections shall be a continuing
position at GS-15 of the General Schedule or classified
above GS-15 pursuant to section 5108, or an equivalent
position, and, in the case of a career appointee
referred to in subsection (a) of this section, the
career appointee shall be entitled to an appointment of
a tenure equivalent to the tenure of the appointment
held in the position from which the career appointee
was appointed;
(B) any career appointee placed under subsection
(a) or (b) of this section shall be entitled to receive
basic pay at the highest of--
(i) the rate of basic pay in effect for the
position in which placed;
(ii) the rate of basic pay in effect at the
time of the placement for the position the
career appointee held in the civil service
immediately before being appointed to the
Senior Executive Service; or
(iii) the rate of basic pay in effect for
the career appointee immediately before being
placed under subsection (a) or (b) of this
section; and
(C) the placement of any career appointee under
subsection (a) or (b) of this section may not be made
to a position which would cause the separation or
reduction in grade of any other employee.
(2) An employee who is receiving basic pay under paragraph
(1)(B)(ii) or (iii) of this subsection is entitled to have the
basic pay rate of the employee increased by 50 percent of the
amount of each increase in the maximum rate of basic pay for
the grade of the position in which the employee is placed under
subsection (a) or (b) of this section until the rate is equal
to the rate in effect under paragraph (1)(B)(i) of this
subsection for the position in which the employee is placed.
Sec. 3595. Reduction in force in the Senior Executive Service
(a) An agency shall establish competitive procedures for
determining who shall be removed from the Senior Executive
Service in any reduction in force of career appointees within
that agency. The competitive procedures shall be designed to
assure that such determinations are primarily on the basis of
performance, as determined under subchapter II of chapter 43 of
this title.
(b)(1) This subsection applies to any career appointee who
has successfully completed the probationary period prescribed
under section 3393(d) of this title.
(2) Except as provided in paragraphs (4) and (5), a career
appointee may not be removed from the Senior Executive Service
due to a reduction in force within an agency.
(3) A career appointee who, but for this subsection, would
be removed from the Senior Executive Service due to a reduction
in force within an agency--
(A) is entitled to be assigned by the head of that
agency to a vacant Senior Executive Service position
for which the career appointee is qualified; or
(B) if the agency head certifies, in writing, to
the Office of Personnel Management that no such
position is available in the agency, shall be placed by
the Office in any agency in any vacant Senior Executive
Service position unless the head of the agency
determines that the career appointee is not qualified
for that position.
The Office of Personnel Management shall take all reasonable
steps to place a career appointee under subparagraph (B) and
may require any agency to take any action which the Office
considers necessary to carry out any such placement.
(4) A career appointee who is not assigned under paragraph
(3)(A) may be removed from the Senior Executive Service due to
a reduction in force if the career appointee declines a
reasonable offer for placement in a Senior Executive Service
position under paragraph (3)(B).
(5) A career appointee who is not assigned under paragraph
(3)(A) may be removed from the Senior Executive Service due to
a reduction in force if the career appointee is not placed in
another Senior Executive Service position under paragraph
(3)(B) within 45 days after the Office receives certification
regarding that appointee under paragraph (3)(B).
(c) A career appointee is entitled to appeal to the Merit
Systems Protection Board under section 7701 of this title
whether the reduction in force complies with the competitive
procedures required under subsection (a).
(d) For purposes of this section, ``reduction in force''
includes the elimination or modification of a position due to a
reorganization, due to a lack of funds or curtailment of work,
or due to any other factor.
(e) The Office shall prescribe regulations under which the
rights accorded to a career appointee in the event of a
transfer of function are comparable to the rights accorded to a
competing employee under section 3503 of this title in the
event of such a transfer.
Sec. 3595a. Furlough in the Senior Executive Service
(a) For the purposes of this section, ``furlough'' means
the placement of a senior executive in a temporary status in
which the senior executive has no duties and is not paid when
the placement in such status is by reason of insufficient work
or funds or for other nondisciplinary reasons.
(b) An agency may furlough a career appointee only in
accordance with regulations issued by the Office of Personnel
Management.
(c) A career appointee who is furloughed is entitled to
appeal to the Merit Systems Protection Board under section 7701
of this title.
Sec. 3596. Regulations
The Office of Personnel Management shall prescribe
regulations to carry out the purpose of this subchapter.
SUBCHAPTER VI--REEMPLOYMENT FOLLOWING LIMITED APPOINTMENT IN THE
FOREIGN SERVICE
Sec. 3597. Reemployment following limited appointment in the Foreign
Service
An employee of any agency who accepts, with the consent of
the head of that agency, a limited appointment in the Foreign
Service under section 309 of the Foreign Service Act of 1980 is
entitled, upon the expiration of that appointment, to be
reemployed in that employee's former position or in a
corresponding or higher position in that agency. Upon
reemployment under this section, an employee shall be entitled
to any within-grade increases in pay which the employee would
have received if the employee had remained in the former
position in the agency.
Subpart C--Employee Performance
CHAPTER 41--TRAINING
Sec.
4101. Definitions.
4102. Exceptions; Presidential authority.
4103. Establishment of training programs.
4104. Government facilities; use of.
4105. Non-Government facilities; use of.
[4106. Repealed.]
4107. Restriction on degree training.
4108. Employee agreements; service after training.
4109. Expenses of training.
4110. Expenses of attendance at meetings.
4111. Acceptance of contributions, awards, and other payments.
4112. Absorption of costs within funds available.
[4113. Repealed.]
[4114. Repealed.]
4115. Collection of training information.
4116. Training program assistance.
4117. Administration.
4118. Regulations.
4119. Training for employees under the Office of the Architect of the
Capitol and the Botanic Garden.
Sec. 4101. Definitions
For the purpose of this chapter--
(1) ``agency'', subject to section 4102 of this
title, means--
(A) an Executive department;
(B) an independent establishment;
(C) a Government corporation subject to
chapter 91 of title 31;
(D) the Library of Congress;
(E) the Government Printing Office; and
(F) the government of the District of
Columbia;
(2) ``employee'', subject to section 4102 of this
title, means--
(A) an individual employed in or under an
agency; and
(B) a commissioned officer of the
Environmental Science Services Administration;
(3) ``Government'' means the Government of the
United States and the government of the District of
Columbia;
(4) ``training'' means the process of providing for
and making available to an employee, and placing or
enrolling the employee in, a planned, prepared, and
coordinated program, course, curriculum, subject,
system, or routine of instruction or education, in
scientific, professional, technical, mechanical, trade,
clerical, fiscal, administrative, or other fields which
will improve individual and organizational performance
and assist in achieving the agency's mission and
performance goals;
(5) ``Government facility'' means property owned or
substantially controlled by the Government and the
services of any civilian and military personnel of the
Government; and
(6) ``non-Government facility'' means--
(A) the government of a State or of a
territory or possession of the United States
including the Commonwealth of Puerto Rico, and
an interstate governmental organization, or a
unit, subdivision, or instrumentality of any of
the foregoing;
(B) a foreign government or international
organization, or instrumentality of either,
which is designated by the President as
eligible to provide training under this
chapter;
(C) a medical, scientific, technical,
educational, research, or professional
institution, foundation, or organization;
(D) a business, commercial, or industrial
firm, corporation, partnership, proprietorship,
or other organization;
(E) individuals other than civilian or
military personnel of the Government; and
(F) the services and property of any of the
foregoing furnishing the training.
Sec. 4102. Exceptions; Presidential authority
(a)(1) This chapter does not apply to--
(A) a corporation supervised by the Farm Credit
Administration if private interests elect or appoint a
member of the board of directors;
(B) the Tennessee Valley Authority; or
(C) an individual (except a commissioned officer of
the National Oceanic and Atmospheric Administration)
who is a member of a uniformed service during a period
in which he is entitled to pay under section 204 of
title 37.
(2) This chapter (except sections 4110 and 4111) does not
apply to--
(A) the Foreign Service of the United States; or
(B) an individual appointed by the President,
unless the individual is specifically designated by the
President for training under this chapter.
(b) The President, at any time in the public interest,
may--
(1) except an agency or part thereof, or an
employee or group or class of employees therein, from
this chapter or a provision thereof (except this
section); and
(2) withdraw an exception made under this
subsection.
However, the President may not except the Office of Personnel
Management from a provision of this chapter which vests in or
imposes on the Office a function, duty, or responsibility
concerning any matter except the establishment, operation, and
maintenance, in the same capacity as other agencies, of
training programs and plans for its employees.
Sec. 4103. Establishment of training programs
(a) In order to assist in achieving an agency's mission and
performance goals by improving employee and organizational
performance, the head of each agency, in conformity with this
chapter, shall establish, operate, maintain, and evaluate a
program or programs, and a plan or plans thereunder, for the
training of employees in or under the agency by, in, and
through Government facilities and non-Government facilities.
Each program, and plan thereunder, shall--
(1) conform to the principles, standards, and
related requirements contained in the regulations
prescribed under section 4118 of this title;
(2) provide for adequate administrative control by
appropriate authority;
(3) provide that information concerning the
selection and assignment of employees for training and
the applicable training limitations and restrictions be
made available to employees of the agency; and
(4) provide for the encouragement of self-training
by employees by means of appropriate recognition of
resultant increases in proficiency, skill, and
capacity.
Two or more agencies jointly may operate under a training
program.
(b)(1) Notwithstanding any other provision of this chapter,
an agency may train any employee of the agency to prepare the
employee for placement in another agency if the head of the
agency determines that such training would be in the interests
of the Government.
(2) In selecting an employee for training under this
subsection, the head of the agency shall consider--
(A) the extent to which the current skills,
knowledge, and abilities of the employee may be
utilized in the new position;
(B) the employee's capability to learn skills and
acquire knowledge and abilities needed in the new
position; and
(C) the benefits to the Government which would
result from such training.
Sec. 4104. Government facilities; use of
An agency program for the training of employees by, in, and
through Government facilities under this chapter shall--
(1) provide for training, insofar as practicable,
by, in, and through Government facilities under the
jurisdiction or control of the agency; and
(2) provide for the making by the agency, to the
extent necessary and appropriate, of agreements with
other agencies in any branch of the Government, on a
reimbursable basis when requested by the other
agencies, for--
(A) use of Government facilities under the
jurisdiction or control of the other agencies
in any branch of the Government; and
(B) extension to employees of the agency of
training programs of other agencies.
Sec. 4105. Non-Government facilities; use of
The head of an agency, without regard to section 5 of title
41, may make agreements or other arrangements for the training
of employees of the agency by, in, or through non-Government
facilities under this chapter.
[Sec. 4106. Repealed. Pub. L. 103-226, Sec. 2(a)(4), Mar. 31, 1994, 108
Stat. 112.]
Sec. 4107. Restriction on degree training
(a) Except as provided in subsections (b) and (c) of this
section, this chapter does not authorize the selection and
assignment of an employee for training, or the payment or
reimbursement of the costs of training, for--
(1) the purpose of providing an opportunity to an
employee to obtain an academic degree in order to
qualify for appointment to a particular position for
which the academic degree is a basic requirement; or
(2) the sole purpose of providing an opportunity to
an employee to obtain one or more academic degrees.
(b)(1) The regulations prescribed under section 4118 of
this title shall include provisions under which the head of an
agency may provide training, or payment or reimbursement for
the costs of any training, not otherwise allowable under
subsection (a) or (c) of this section, if necessary to assist
in the recruitment or retention of employees in occupations in
which the Government has or anticipates a shortage of qualified
personnel, especially in occupations involving critical skills
(as defined under such regulations).
(2) In exercising any authority under this subsection, an
agency shall, consistent with the merit system principles set
forth in paragraphs (1) and (2) of section 2301(b) of this
title, take into consideration the need to maintain a balanced
workforce in which women and members of racial and ethnic
minority groups are appropriately represented in Government
service.
(3) No authority under this subsection may be exercised on
behalf of any employee occupying or seeking to qualify for
appointment to any position which is excepted from the
competitive service because of its confidential policy-
determining, policy-making, or policy-advocating character.
(c) With respect to an employee of the Department of
Defense--
(1) this chapter does not authorize, except as
provided in subsection (b) of this section, the
selection and assignment of the employee for training,
or the payment or reimbursement of the costs of
training, for--
(A) the purpose of providing an opportunity
to the employee to obtain an academic degree in
order to qualify for appointment to a
particular position for which the academic
degree is a basic requirement; or
(B) the sole purpose of providing an
opportunity to the employee to obtain one or
more academic degrees, unless such opportunity
is part of a planned, systematic, and
coordinated program of professional development
endorsed by the Department of Defense; and
(2) any course of post-secondary education
delivered through classroom, electronic, or other means
shall be administered or conducted by an institution
recognized under standards implemented by a national or
regional accrediting body, except in a case in which
such standards do not exist or the use of such
standards would not be appropriate.
Sec. 4108. Employee agreements; service after training
(a) An employee selected for training for more than a
minimum period prescribed by the head of the agency shall agree
in writing with the Government before assignment to training
that he will--
(1) continue in the service of his agency after the
end of the training period for a period at least equal
to three times the length of the training period unless
he is involuntarily separated from the service of his
agency; and
(2) pay to the Government the amount of the
additional expenses incurred by the Government in
connection with his training if he is voluntarily
separated from the service of his agency before the end
of the period for which he has agreed to continue in
the service of his agency.
(b) The payment agreed to under subsection (a)(2) of this
section may not be required of an employee who leaves the
service of his agency to enter into the service of another
agency in any branch of the Government unless the head of the
agency that authorized the training notifies the employee
before the effective date of his entrance into the service of
the other agency that payment will be required under this
section.
(c) If an employee, except an employee relieved of
liability under subsection (b) of this section or section
4102(b) of this title, fails to fulfill his agreement to pay to
the Government the additional expenses incurred by the
Government in connection with his training, a sum equal to the
amount of the additional expenses of training is recoverable by
the Government from the employee or his estate by--
(1) setoff against accrued pay, compensation,
amount of retirement credit, or other amount due the
employee from the Government; and
(2) such other method as is provided by law for the
recovery of amounts owing to the Government.
The head of the agency concerned, under the regulations
prescribed under section 4118 of this title, may waive in whole
or in part a right of recovery under this subsection, if it is
shown that the recovery would be against equity and good
conscience or against the public interest.
(d) For purposes of this section, ``training'' includes a
private sector assignment of an employee participating in the
Executive Exchange Program of the President's Commission on
Executive Exchange.
Sec. 4109. Expenses of training
(a) The head of an agency, under the regulations prescribed
under section 4118(a)(8) of this title and from appropriations
or other funds available to the agency, may--
(1) pay all or a part of the pay (except overtime,
holiday, or night differential pay) of an employee of
the agency selected and assigned for training under
this chapter, for the period of training; and
(2) pay, or reimburse the employee for, all or a
part of the necessary expenses of the training, without
regard to section 3324(a) and (b) of title 31,
including among the expenses the necessary costs of--
(A) travel and per diem instead of
subsistence under subchapter I of chapter 57 of
this title or, in the case of commissioned
officers of the National Oceanic and
Atmospheric Administration, sections 404 and
405 of title 37, and the Joint Travel
Regulations for the Uniformed Services;
(B) transportation of immediate family,
household goods and personal effects, packing,
crating, temporarily storing, draying, and
unpacking under section 5724 of this title or,
in the case of commissioned officers of the
National Oceanic and Atmospheric
Administration, sections 406 and 409 of title
37, and the Joint Travel Regulations for the
Uniformed Services, when the estimated costs of
transportation and related services are less
than the estimated aggregate per diem payments
for the period of training;
(C) tuition and matriculation fees;
(D) library and laboratory services;
(E) purchase or rental of books, materials,
and supplies; and
(F) other services or facilities directly
related to the training of the employee.
(b) The expenses of training do not include membership fees
except to the extent that the fee is a necessary cost directly
related to the training itself or that payment of the fee is a
condition precedent to undergoing the training.
(c) Notwithstanding subsection (a)(1) of this section, the
Administrator, Federal Aviation Administration, may pay an
individual training to be an air traffic controller of such
Administration, and the Secretary of Defense may pay an
individual training to be an air traffic controller of the
Department of Defense, during the period of such training, at
the applicable rate of basic pay for the hours of training
officially ordered or approved in excess of forty hours in an
administrative workweek.
(d) Notwithstanding subsection (a)(1), a firefighter who is
subject to section 5545b of this title shall be paid basic pay
and overtime pay for the firefighter's regular tour of duty
while attending agency sanctioned training.
Sec. 4110. Expenses of attendance at meetings
Appropriations available to an agency for travel expenses
are available for expenses of attendance at meetings which are
concerned with the functions or activities for which the
appropriation is made or which will contribute to improved
conduct, supervision, or management of the functions or
activities.
Sec. 4111. Acceptance of contributions, awards, and other payments
(a) To the extent authorized by regulation of the
President, contributions and awards incident to training in
non-Government facilities, and payment of travel, subsistence,
and other expenses incident to attendance at meetings, may be
made to and accepted by an employee, without regard to section
209 of title 18, if the contributions, awards, and payments are
made by an organization determined by the Secretary of the
Treasury to be an organization described by section 501(c)(3)
of title 26 which is exempt from taxation under section 501(a)
of title 26.
(b) When a contribution, award, or payment, in cash or in
kind, is made to an employee for travel, subsistence, or other
expenses under subsection (a) of this section, an appropriate
reduction, under regulations of the President, shall be made
from payment by the Government to the employee for travel,
subsistence, or other expenses incident to training in a non-
Government facility or to attendance at a meeting.
Sec. 4112. Absorption of costs within funds available
(a) The President, to the extent he considers practicable,
shall provide by regulation for the absorption of the costs of
the training programs and plans under this chapter by the
respective agencies from applicable appropriations or funds
available for each fiscal year.
(b) Subsection (a) of this section may not be held or
considered to require--
(1) the separation of an individual from the
service by reduction in force or other personnel
action; or
(2) the placement of an individual in a leave-
without-pay status.
[Sec. 4113. Repealed. Pub. L. 104-66, Sec. 2181(c)(1), Dec. 21, 1995,
109 Stat. 732.]
[Sec. 4114. Repealed. Pub. L. 103-226, Sec. 2(a)(8), Mar. 31, 1994, 108
Stat. 112.]
Sec. 4115. Collection of training information
The Office of Personnel Management, to the extent it
considers appropriate in the public interest, may collect
information concerning training programs, plans, and the
methods inside and outside the Government. The Office, on
request, may make the information available to an agency and to
Congress.
Sec. 4116. Training program assistance
The Office of Personnel Management, on request of an
agency, shall advise and assist in the establishment,
operation, and maintenance of the training programs and plans
of the agency under this chapter, to the extent of its
facilities and personnel available for that purpose.
Sec. 4117. Administration
The Office of Personnel Management has the responsibility
and authority for effective promotion and coordination of the
training programs under this chapter and training operations
thereunder. The functions, duties, and responsibilities of the
Office under this chapter are subject to supervision and
control by the President and review by Congress.
Sec. 4118. Regulations
(a) The Office of Personnel Management, after considering
the needs and requirements of each agency for training its
employees and after consulting with the agencies principally
concerned, shall prescribe regulations containing the
principles, standards, and related requirements for the
programs, and plans thereunder, for the training of employees
under this chapter, including requirements for coordination of
and reasonable uniformity in the agency training programs and
plans. The regulations shall provide for the maintenance of
necessary information concerning the general conduct of the
training activities of each agency, and such other information
as is necessary to enable the President and Congress to
discharge effectively their respective duties and
responsibilities for supervision, control, and review of these
training programs. The regulations also shall cover--
(1) requirements concerning the determination and
continuing review by each agency of its training needs
and requirements;
(2) the scope and conduct of the agency training
programs and plans;
(3) the selection and assignment of employees of
each agency for training;
(4) the use in each agency of the services of
employees who have undergone training;
(5) the evaluation of the results and effects of
the training programs and plans;
(6) the interchange of training information among
the agencies;
(7) the submission of reports by the agencies on
results and effects of training programs and plans and
economies resulting therefrom, including estimates of
costs of training;
(8) requirements and limitations necessary with
respect to payments and reimbursements in accordance
with section 4109 of this title; and
(9) other matters considered appropriate or
necessary by the Office to carry out the provisions of
this chapter.
(b) The Office, in accordance with this chapter, may
revise, supplement, or abolish regulations prescribed under
this section, and prescribe additional regulations.
(c) This section does not authorize the Office to prescribe
the types and methods of intra-agency training or to regulate
the details of intra-agency training programs.
Sec. 4119. Training for employees under the Office of the Architect of
the Capitol and the Botanic Garden
(a) The Architect of the Capitol may, by regulation, make
applicable such provisions of this chapter as the Architect
determines necessary to provide for training of (1) individuals
employed under the Office of the Architect of the Capitol and
the Botanic Garden and (2) other congressional employees who
are subject to the administrative control of the Architect. The
regulations shall provide for training which, in the
determination of the Architect, is consistent with the training
provided by agencies under the preceding sections of this
chapter.
(b) The Office of Personnel Management shall provide the
Architect of the Capitol with such advice and assistance as the
Architect may request in order to enable the Architect to carry
out the purposes of this section.
CHAPTER 43--PERFORMANCE APPRAISAL
SUBCHAPTER I--GENERAL PROVISIONS
Sec.
4301. Definitions.
4302. Establishment of performance appraisal systems.
[4302a. Repealed.]
4303. Actions based on unacceptable performance.
4304. Responsibilities of the Office of Personnel Management.
4305. Regulations.
SUBCHAPTER II--PERFORMANCE APPRAISAL IN THE SENIOR EXECUTIVE SERVICE
4311. Definitions.
4312. Senior Executive Service performance appraisal systems.
4313. Criteria for performance appraisals.
4314. Ratings for performance appraisals.
4315. Regulations.
SUBCHAPTER I--GENERAL PROVISIONS
Sec. 4301. Definitions
For the purpose of this subchapter--
(1) ``agency'' means--
(A) an Executive agency; and
(B) the Government Printing Office;
but does not include--
(i) a Government corporation;
(ii) the Central Intelligence Agency, the
Defense Intelligence Agency, the National
Imagery and Mapping Agency, the National
Security Agency, or any Executive agency or
unit thereof which is designated by the
President and the principal function of which
is the conduct of foreign intelligence or
counterintelligence activities; or
(iii) the General Accounting Office;
(2) ``employee'' means an individual employed in or
under an agency, but does not include--
(A) an employee outside the United States
who is paid in accordance with local native
prevailing wage rates for the area in which
employed;
(B) an individual in the Foreign Service of
the United States;
(C) a physician, dentist, nurse, or other
employee in the Veterans Health Administration
of the Department of Veterans Affairs whose pay
is fixed under chapter 73 of title 38;
(D) an administrative law judge appointed
under section 3105 of this title;
(E) an individual in the Senior Executive
Service or the Federal Bureau of Investigation
and Drug Enforcement Administration Senior
Executive Service;
(F) an individual appointed by the
President;
(G) an individual occupying a position not
in the competitive service excluded from
coverage of this subchapter by regulations of
the Office of Personnel Management; or
(H) an individual who (i) is serving in a
position under a temporary appointment for less
than one year, (ii) agrees to serve without a
performance evaluation, and (iii) will not be
considered for a reappointment or for an
increase in pay based in whole or in part on
performance; and
(3) ``unacceptable performance'' means performance
of an employee which fails to meet established
performance standards in one or more critical elements
of such employee's position.
Sec. 4302. Establishment of performance appraisal systems
(a) Each agency shall develop one or more performance
appraisal systems which--
(1) provide for periodic appraisals of job
performance of employees;
(2) encourage employee participation in
establishing performance standards; and
(3) use the results of performance appraisals as a
basis for training, rewarding, reassigning, promoting,
reducing in grade, retaining, and removing employees.
(b) Under regulations which the Office of Personnel
Management shall prescribe, each performance appraisal system
shall provide for--
(1) establishing performance standards which will,
to the maximum extent feasible, permit the accurate
evaluation of job performance on the basis of objective
criteria (which may include the extent of courtesy
demonstrated to the public) related to the job in
question for each employee or position under the
system;
(2) as soon as practicable, but not later than
October 1, 1981, with respect to initial appraisal
periods, and thereafter at the beginning of each
following appraisal period, communicating to each
employee the performance standards and the critical
elements of the employee's position;
(3) evaluating each employee during the appraisal
period on such standards;
(4) recognizing and rewarding employees whose
performance so warrants;
(5) assisting employees in improving unacceptable
performance; and
(6) reassigning, reducing in grade, or removing
employees who continue to have unacceptable performance
but only after an opportunity to demonstrate acceptable
performance.
(c) In accordance with regulations which the Office shall
prescribe, the head of an agency may administer and maintain a
performance appraisal system electronically.
[Sec. 4302a. Repealed. Pub. L. 103-89, Sec. 3(b)(1)(B)(i), Sept. 30,
1993, 107 Stat. 981.]
Sec. 4303. Actions based on unacceptable performance
(a) Subject to the provisions of this section, an agency
may reduce in grade or remove an employee for unacceptable
performance.
(b)(1) An employee whose reduction in grade or removal is
proposed under this section is entitled to--
(A) 30 days' advance written notice of the proposed
action which identifies--
(i) specific instances of unacceptable
performance by the employee on which the
proposed action is based; and
(ii) the critical elements of the
employee's position involved in each instance
of unacceptable performance;
(B) be represented by an attorney or other
representative;
(C) a reasonable time to answer orally and in
writing; and
(D) a written decision which--
(i) in the case of a reduction in grade or
removal under this section, specifies the
instances of unacceptable performance by the
employee on which the reduction in grade or
removal is based, and
(ii) unless proposed by the head of the
agency, has been concurred in by an employee
who is in a higher position than the employee
who proposed the action.
(2) An agency may, under regulations prescribed by the head
of such agency, extend the notice period under subsection
(b)(1)(A) of this section for not more than 30 days. An agency
may extend the notice period for more than 30 days only in
accordance with regulations issued by the Office of Personnel
Management.
(c) The decision to retain, reduce in grade, or remove an
employee--
(1) shall be made within 30 days after the date of
expiration of the notice period, and
(2) in the case of a reduction in grade or removal,
may be based only on those instances of unacceptable
performance by the employee--
(A) which occurred during the 1-year period
ending on the date of the notice under
subsection (b)(1)(A) of this section in
connection with the decision; and
(B) for which the notice and other
requirements of this section are complied with.
(d) If, because of performance improvement by the employee
during the notice period, the employee is not reduced in grade
or removed, and the employee's performance continues to be
acceptable for 1 year from the date of the advance written
notice provided under subsection (b)(1)(A) of this section, any
entry or other notation of the unacceptable performance for
which the action was proposed under this section shall be
removed from any agency record relating to the employee.
(e) Any employee who is--
(1) a preference eligible;
(2) in the competitive service; or
(3) in the excepted service and covered by
subchapter II of chapter 75,
and who has been reduced in grade or removed under this section
is entitled to appeal the action to the Merit Systems
Protection Board under section 7701.
(f) This section does not apply to--
(1) the reduction to the grade previously held of a
supervisor or manager who has not completed the
probationary period under section 3321(a)(2) of this
title,
(2) the reduction in grade or removal of an
employee in the competitive service who is serving a
probationary or trial period under an initial
appointment or who has not completed 1 year of current
continuous employment under other than a temporary
appointment limited to 1 year or less, or
(3) the reduction in grade or removal of an
employee in the excepted service who has not completed
1 year of current continuous employment in the same or
similar positions.
Sec. 4304. Responsibilities of the Office of Personnel Management
(a) The Office of Personnel Management shall make technical
assistance available to agencies in the development of
performance appraisal systems.
(b)(1) The Office shall review each performance appraisal
system developed by any agency under this section and determine
whether the performance appraisal system meets the requirements
of this subchapter.
(2) The Comptroller General shall from time to time review
on a selected basis performance appraisal systems established
under this subchapter to determine the extent to which any such
system meets the requirements of this subchapter and shall
periodically report its findings to the Office and to the
Congress.
(3) If the Office determines that a system does not meet
the requirements of this subchapter (including regulations
prescribed under section 4305), the Office shall direct the
agency to implement an appropriate system or to correct
operations under the system, and any such agency shall take any
action so required.
Sec. 4305. Regulations
The Office of Personnel Management may prescribe
regulations to carry out the purpose of this subchapter.
SUBCHAPTER II--PERFORMANCE APPRAISAL IN THE SENIOR EXECUTIVE SERVICE
Sec. 4311. Definitions
For the purpose of this subchapter, ``agency'', ``senior
executive'', and ``career appointee'' have the meanings set
forth in section 3132(a) of this title.
Sec. 4312. Senior Executive Service performance appraisal systems
(a) Each agency shall, in accordance with standards
established by the Office of Personnel Management, develop one
or more performance appraisal systems designed to--
(1) permit the accurate evaluation of performance
in any position on the basis of criteria which are
related to the position and which specify the critical
elements of the position;
(2) provide for systematic appraisals of
performance of senior executives;
(3) encourage excellence in performance by senior
executives; and
(4) provide a basis for making eligibility
determinations for retention in the Senior Executive
Service and for Senior Executive Service performance
awards.
(b) Each performance appraisal system established by an
agency under subsection (a) of this section shall provide--
(1) that, on or before the beginning of each rating
period, performance requirements for each senior
executive in the agency are established in consultation
with the senior executive and communicated to the
senior executive;
(2) that written appraisals of performance are
based on the individual and organizational performance
requirements established for the rating period
involved; and
(3) that each senior executive in the agency is
provided a copy of the appraisal and rating under
section 4314 of this title and is given an opportunity
to respond in writing and have the rating reviewed by
an employee, or (with the consent of the senior
executive) a commissioned officer in the uniformed
services serving on active duty, in a higher level in
the agency before the rating becomes final.
(c)(1) The Office shall review each agency's performance
appraisal system under this section, and determine whether the
agency performance appraisal system meets the requirements of
this subchapter.
(2) The Comptroller General shall from time to time review
performance appraisal systems under this section to determine
the extent to which any such system meets the requirements
under this subchapter and shall periodically report its
findings to the Office and to each House of the Congress.
(3) If the Office determines that an agency performance
appraisal system does not meet the requirements under this
subchapter (including regulations prescribed under section
4315), the agency shall take such corrective action as may be
required by the Office.
(d) A senior executive may not appeal any appraisal and
rating under any performance appraisal system under this
section.
Sec. 4313. Criteria for performance appraisals
Appraisals of performance in the Senior Executive Service
shall be based on both individual and organizational
performance, taking into account such factors as--
(1) improvements in efficiency, productivity, and
quality of work or service, including any significant
reduction in paperwork;
(2) cost efficiency;
(3) timeliness of performance;
(4) other indications of the effectiveness,
productivity, and performance quality of the employees
for whom the senior executive is responsible; and
(5) meeting affirmative action goals, achievement
of equal employment opportunity requirements, and
compliance with the merit systems principles set forth
under section 2301 of this title.
Sec. 4314. Ratings for performance appraisals
(a) Each performance appraisal system shall provide for
annual summary ratings of levels of performance as follows:
(1) one or more fully successful levels,
(2) a minimally satisfactory level, and
(3) an unsatisfactory level.
(b) Each performance appraisal system shall provide that--
(1) any appraisal and any rating under such
system--
(A) are made only after review and
evaluation by a performance review board
established under subsection (c) of this
section;
(B) are conducted at least annually,
subject to the limitation of subsection (c)(3)
of this section;
(C) in the case of a career appointee, may
not be made within 120 days after the beginning
of a new Presidential administration; and
(D) are based on performance during a
performance appraisal period the duration of
which shall be determined under guidelines
established by the Office of Personnel
Management, but which may be terminated in any
case in which the agency making an appraisal
determines that an adequate basis exists on
which to appraise and rate the senior
executive's performance;
(2) any career appointee receiving a rating at any
of the fully successful levels under subsection (a)(1)
of this section may be given a performance award under
section 5384 of this title;
(3) any senior executive receiving an
unsatisfactory rating under subsection (a)(3) of this
section shall be reassigned or transferred within the
Senior Executive Service, or removed from the Senior
Executive Service, but any senior executive who
receives 2 unsatisfactory ratings in any period of 5
consecutive years shall be removed from the Senior
Executive Service; and
(4) any senior executive who twice in any period of
3 consecutive years receives less than fully successful
ratings shall be removed from the Senior Executive
Service.
(c)(1) Each agency shall establish, in accordance with
regulations prescribed by the Office, one or more performance
review boards, as appropriate. It is the function of the boards
to make recommendations to the appropriate appointing authority
of the agency relating to the performance of senior executives
in the agency.
(2) The supervising official of the senior executive shall
provide to the performance review board, an initial appraisal
of the senior executive's performance. Before making any
recommendation with respect to the senior executive, the board
shall review any response by the senior executive to the
initial appraisal and conduct such further review as the board
finds necessary.
(3) Performance appraisals under this subchapter with
respect to any senior executive shall be made by the appointing
authority only after considering the recommendations by the
performance review board with respect to such senior executive
under paragraph (1) of this subsection.
(4) Members of performance review boards shall be appointed
in such a manner as to assure consistency, stability, and
objectivity in performance appraisal. Notice of the appointment
of an individual to serve as a member shall be published in the
Federal Register.
(5) In the case of an appraisal of a career appointee, more
than one-half of the members of the performance review board
shall consist of career appointees. The requirement of the
preceding sentence shall not apply in any case in which the
Office determines that there exists an insufficient number of
career appointees available to comply with the requirement.
Sec. 4315. Regulations
The Office of Personnel Management shall prescribe
regulations to carry out the purpose of this subchapter.
CHAPTER 45--INCENTIVE AWARDS
SUBCHAPTER I--AWARDS FOR SUPERIOR ACCOMPLISHMENTS
Sec.
4501. Definitions.
4502. General provisions.
4503. Agency awards.
4504. Presidential awards.
4505. Awards to former employees.
4505a. Performance-based cash awards.
4506. Regulations.
4507. Awarding of ranks in the Senior Executive Service.
4508. Limitation of awards during a Presidential election year.
4509. Prohibition of cash award to Executive Schedule officers.
SUBCHAPTER II--AWARDS FOR COST SAVINGS DISCLOSURES
4511. Definition and general provisions.
4512. Agency awards for cost savings disclosures.
4513. Presidential awards for cost savings disclosures.
SUBCHAPTER III--AWARDS TO LAW ENFORCEMENT OFFICERS FOR FOREIGN LANGUAGE
CAPABILITIES
4521. Definition.
4522. General provision.
4523. Award authority.
SUBCHAPTER I--AWARDS FOR SUPERIOR ACCOMPLISHMENTS
Sec. 4501. Definitions
For the purpose of this subchapter--
(1) ``agency'' means--
(A) an Executive agency;
(B) the Library of Congress;
(C) the Office of the Architect of the
Capitol;
(D) the Botanic Garden;
(E) the Government Printing Office;
(F) the government of the District of
Columbia; and
(G) the United States Sentencing
Commission;
but does not include--
(i) the Tennessee Valley Authority; or
(ii) the Central Bank for Cooperatives;
(2) ``employee'' means--
(A) an employee as defined by section 2105;
and
(B) an individual employed by the
government of the District of Columbia; and
(3) ``Government'' means the Government of the
United States and the government of the District of
Columbia.
Sec. 4502. General provisions
(a) Except as provided by subsection (b) of this section, a
cash award under this subchapter may not exceed $10,000.
(b) When the head of an agency certifies to the Office of
Personnel Management that the suggestion, invention, superior
accomplishment, or other meritorious effort for which the award
is proposed is highly exceptional and unusually outstanding, a
cash award in excess of $10,000 but not in excess of $25,000
may be granted with the approval of the Office.
(c) A cash award under this subchapter is in addition to
the regular pay of the recipient. Acceptance of a cash award
under this subchapter constitutes an agreement that the use by
the Government of an idea, method, or device for which the
award is made does not form the basis of a further claim of any
nature against the Government by the employee, his heirs, or
assigns.
(d) A cash award to, and expense for the honorary
recognition of, an employee may be paid from the fund or
appropriation available to the activity primarily benefiting or
the various activities benefiting. The head of the agency
concerned determines the amount to be paid by each activity for
an agency award under section 4503 of this title. The President
determines the amount to be paid by each activity for a
Presidential award under section 4504 of this title.
(e) The Office of Personnel Management may by regulation
permit agencies to grant employees time off from duty, without
loss of pay or charge to leave, as an award in recognition of
superior accomplishment or other personal effort that
contributes to the quality, efficiency, or economy of
Government operations.
(f ) The Secretary of Defense may grant a cash award under
subsection (b) of this section without regard to the
requirements for certification and approval provided in that
subsection.
Sec. 4503. Agency awards
The head of an agency may pay a cash award to, and incur
necessary expense for the honorary recognition of, an employee
who--
(1) by his suggestion, invention, superior
accomplishment, or other personal effort contributes to
the efficiency, economy, or other improvement of
Government operations or achieves a significant
reduction in paperwork; or
(2) performs a special act or service in the public
interest in connection with or related to his official
employment.
Sec. 4504. Presidential awards
The President may pay a cash award to, and incur necessary
expense for the honorary recognition of, an employee who--
(1) by his suggestion, invention, superior
accomplishment, or other personal effort contributes to
the efficiency, economy, or other improvement of
Government operations or achieves a significant
reduction in paperwork; or
(2) performs an exceptionally meritorious special
act or service in the public interest in connection
with or related to his official employment.
A Presidential award may be in addition to an agency award
under section 4503 of this title.
Sec. 4505. Awards to former employees
An agency may pay or grant an award under this subchapter
notwithstanding the death or separation from the service of the
employee concerned, if the suggestion, invention, superior
accomplishment, other personal effort, or special act or
service in the public interest for which the award is proposed
was made or performed while the employee was in the employ of
the Government.
Sec. 4505a. Performance-based cash awards
(a)(1) An employee whose most recent performance rating was
at the fully successful level or higher (or the equivalent
thereof) may be paid a cash award under this section.
(2)(A) A cash award under this section shall be equal to an
amount determined appropriate by the head of the agency, but
may not be more than 10 percent of the employee's annual rate
of basic pay. Notwithstanding the preceding sentence, the
agency head may authorize a cash award equal to an amount
exceeding 10 percent of the employee's annual rate of basic pay
if the agency head determines that exceptional performance by
the employee justifies such an award, but in no case may an
award under this section exceed 20 percent of the employee's
annual rate of basic pay.
(B) For purposes of computing a percentage of a rate of
basic pay under subparagraph (A), the rate of basic pay used
shall be determined without taking into account any
comparability payment under section 5304.
(b)(1) A cash award under this section shall be paid as a
lump sum, and may not be considered to be part of the basic pay
of an employee.
(2) The failure to pay cash award under this section, or
the amount of such an award, may not be appealed. The preceding
sentence shall not be construed to extinguish or lessen any
right or remedy under subchapter II of chapter 12, chapter 71,
or any of the laws referred to in section 2302(d).
(c) The Office of Personnel Management shall prescribe such
regulations as it considers necessary for the administration of
subsections (a) and (b).
(d) The preceding provisions of this section shall be
applicable with respect to any employee to whom subchapter III
of chapter 53 applies, and to any category of employees
provided for under subsection (e).
(e) At the request of the head of an Executive agency, the
President may authorize the application of subsections (a)
through (c) with respect to any category of employees within
such agency who would not otherwise be covered by this section.
Sec. 4506. Regulations
The Office of Personnel Management shall prescribe
regulations and instructions under which the agency awards
program set forth by this subchapter shall be carried out.
Sec. 4507. Awarding of ranks in the Senior Executive Service
(a) For the purpose of this section, ``agency'', ``senior
executive'', and ``career appointee'' have the meanings set
forth in section 3132(a) of this title.
(b) Each agency shall submit annually to the Office
recommendations of career appointees in the agency to be
awarded the rank of Meritorious Executive or Distinguished
Executive. The recommendations may take into account the
individual's performance over a period of years. The Office
shall review such recommendations and provide to the President
recommendations as to which of the agency recommended
appointees should receive such rank.
(c) During any fiscal year, the President may, subject to
subsection (d) of this section, award to any career appointee
recommended by the Office the rank of--
(1) Meritorious Executive, for sustained
accomplishment, or
(2) Distinguished Executive, for sustained
extraordinary accomplishment.
A career appointee awarded a rank under paragraph (1) or (2) of
this subsection shall not be entitled to be awarded that rank
during the following 4 fiscal years.
(d) During any fiscal year--
(1) the number of career appointees awarded the
rank of Meritorious Executive may not exceed 5 percent
of the Senior Executive Service; and
(2) the number of career appointees awarded the
rank of Distinguished Executive may not exceed 1
percent of the Senior Executive Service.
(e)(1) Receipt by a career appointee of the rank of
Meritorious Executive entitles such individual to a lump-sum
payment of an amount equal to 20 percent of annual basic pay,
which shall be in addition to the basic pay paid under section
5382 of this title or any award paid under section 5384 of this
title.
(2) Receipt by a career appointee of the rank of
Distinguished Executive entitles the individual to a lump-sum
payment of an amount equal to 35 percent of annual basic pay,
which shall be in addition to the basic pay paid under section
5382 of this title or any award paid under section 5384 of this
title.
Sec. 4508. Limitation of awards during a Presidential election year
(a) For purposes of this section, the term--
(1) ``Presidential election period'' means any
period beginning on June 1 in a calendar year in which
the popular election of the President occurs, and
ending on January 20 following the date of such
election; and
(2) ``senior politically appointed officer'' means
any officer who during a Presidential election period
serves--
(A) in a Senior Executive Service position
and is not a career appointee as defined under
section 3132(a)(4); or
(B) in a position of a confidential or
policy-determining character under schedule C
of subpart C of part 213 of title 5 of the Code
of Federal Regulations.
(b) No senior politically appointed officer may receive an
award under the provisions of this subchapter during a
Presidential election period.
Sec. 4509. Prohibition of cash award to Executive Schedule officers
No officer may receive a cash award under the provisions of
this subchapter, if such officer--
(1) serves in--
(A) an Executive Schedule position under
subchapter II of chapter 53; or
(B) a position for which the compensation
is set in statute by reference to a section or
level under subchapter II of chapter 53; and
(2) was appointed to such position by the
President, by and with the advice and consent of the
Senate.
SUBCHAPTER II--AWARDS FOR COST SAVINGS DISCLOSURES
Sec. 4511. Definition and general provisions
(a) For purposes of this subchapter, the term ``agency''
means any Executive agency.
(b) A cash award under this subchapter is in addition to
the regular pay of the recipient. Acceptance of a cash award
under this subchapter constitutes an agreement that the use by
the Government of an idea, method, or device for which the
award is made does not form the basis of a further claim of any
nature against the Government by the employee, his heirs, or
assigns.
Sec. 4512. Agency awards for cost savings disclosures
(a) The Inspector General of an agency, or any other agency
employee designated under subsection (b), may pay a cash award
to any employee of such agency whose disclosure of fraud,
waste, or mismanagement to the Inspector General of the agency,
or to such other designated agency employee, has resulted in
cost savings for the agency. The amount of an award under this
section may not exceed the lesser of--
(1) $10,000; or
(2) an amount equal to 1 percent of the agency's
cost savings which the Inspector General, or other
employee designated under subsection (b), determines to
be the total savings attributable to the employee's
disclosure.
For purposes of paragraph (2), the Inspector General or other
designated employee may take into account agency cost savings
projected for subsequent fiscal years which will be
attributable to such disclosure.
(b) In the case of an agency for which there is no
Inspector General, the head of the agency shall designate an
agency employee who shall have the authority to make the
determinations and grant the awards permitted under this
section.
Sec. 4513. Presidential awards for cost savings disclosures
The President may pay a cash award in the amount of $20,000
to any employee whose disclosure of fraud, waste, or
mismanagement has resulted in substantial cost savings for the
Government. In evaluating the significance of a cost savings
disclosure made by an employee for purposes of determining
whether to make an award to such employee under this section,
the President may take into account cost savings projected for
subsequent fiscal years which will be attributable to the
disclosure. During any fiscal year, the President may not make
more than 50 awards under this section.
SUBCHAPTER III--AWARD TO LAW ENFORCEMENT OFFICERS FOR FOREIGN LANGUAGE
CAPABILITIES
Sec. 4521. Definition
For the purpose of this subchapter, the term ``law
enforcement officer'' means--
(1) a law enforcement officer within the meaning of
section 5541(3) and to whom the provisions of chapter
51 apply;
(2) a member of the United States Secret Service
Uniformed Division;
(3) a member of the United States Park Police;
(4) a special agent in the Diplomatic Security
Service;
(5) a probation officer (referred to in section
3672 of title 18); and
(6) a pretrial services officer (referred to in
section 3153 of title 18).
Sec. 4522. General provision
An award under this subchapter is in addition to the basic
pay of the recipient.
Sec. 4523. Award authority
(a) An agency may pay a cash award, up to 5 percent of
basic pay, to any law enforcement officer employed in or under
such agency who possesses and makes substantial use of 1 or
more foreign languages in the performance of official duties.
(b) Awards under this section shall be paid under
regulations prescribed by the head of the agency involved (or
designee thereof). Regulations prescribed by an agency head (or
designee) under this subsection shall include--
(1) procedures under which foreign language
proficiency shall be ascertained;
(2) criteria for the selection of individuals for
recognition under this section; and
(3) any other provisions which may be necessary to
carry out the purposes of this subchapter.
CHAPTER 47--PERSONNEL RESEARCH PROGRAMS AND DEMONSTRATION PROJECTS
Sec.
4701. Definitions.
4702. Research programs.
4703. Demonstration projects.
4704. Allocation of funds.
Sec.\1\ 4705. Regulations.
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\1\ So in original.
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Sec. 4701. Definitions
(a) For the purpose of this chapter--
(1) ``agency'' means an Executive agency and the
Government Printing Office, but does not include--
(A) a Government corporation;
(B) the Federal Bureau of Investigation,
the Central Intelligence Agency, the Defense
Intelligence Agency, the National Imagery and
Mapping Agency, the National Security Agency,
and, as determined by the President, any
Executive agency or unit thereof which is
designated by the President and which has as
its principal function the conduct of foreign
intelligence or counterintelligence activities;
or
(C) the General Accounting Office;
(2) ``employee'' means an individual employed in or
under an agency;
(3) ``eligible'' means an individual who has
qualified for appointment in an agency and whose name
has been entered on the appropriate register or list of
eligibles;
(4) ``demonstration project'' means a project
conducted by the Office of Personnel Management, or
under its supervision, to determine whether a specified
change in personnel management policies or procedures
would result in improved Federal personnel management;
and
(5) ``research program'' means a planned study of
the manner in which public management policies and
systems are operating, the effects of those policies
and systems, the possibilities for change, and
comparisons among policies and systems.
(b) This chapter shall not apply to any position in the
Drug Enforcement Administration which is excluded from the
competitive service under section 201 of the Crime Control Act
of 1976 (28 U.S.C. 509 note; 90 Stat. 2425).
Sec. 4702. Research programs
The Office of Personnel Management shall--
(1) establish and maintain (and assist in the
establishment and maintenance of) research programs to
study improved methods and technologies in Federal
personnel management;
(2) evaluate the research programs established
under paragraph (1) of this section;
(3) establish and maintain a program for the
collection and public dissemination of information
relating to personnel management research and for
encouraging and facilitating the exchange of
information among interested persons and entities; and
(4) carry out the preceding functions directly or
through agreement or contract.
Sec. 4703. Demonstration projects
(a) Except as provided in this section, the Office of
Personnel Management may, directly or through agreement or
contract with one or more agencies and other public and private
organizations, conduct and evaluate demonstration projects.
Subject to the provisions of this section, the conducting of
demonstration projects shall not be limited by any lack of
specific authority under this title to take the action
contemplated, or by any provision of this title or any rule or
regulation prescribed under this title which is inconsistent
with the action, including any law or regulation relating to--
(1) the methods of establishing qualification
requirements for, recruitment for, and appointment to
positions;
(2) the methods of classifying positions and
compensating employees;
(3) the methods of assigning, reassigning, or
promoting employees;
(4) the methods of disciplining employees;
(5) the methods of providing incentives to
employees, including the provision of group or
individual incentive bonuses or pay;
(6) the hours of work per day or per week;
(7) the methods of involving employees, labor
organizations, and employee organizations in personnel
decisions; and
(8) the methods of reducing overall agency staff
and grade levels.
(b) Before conducting or entering into any agreement or
contract to conduct a demonstration project, the Office shall--
(1) develop a plan for such project which
identifies--
(A) the purposes of the project;
(B) the types of employees or eligibles,
categorized by occupational series, grade, or
organizational unit;
(C) the number of employees or eligibles to
be included, in the aggregate and by category;
(D) the methodology;
(E) the duration;
(F) the training to be provided;
(G) the anticipated costs;
(H) the methodology and criteria for
evaluation;
(I) a specific description of any aspect of
the project for which there is a lack of
specific authority; and
(J) a specific citation to any provision of
law, rule, or regulation which, if not waived
under this section, would prohibit the
conducting of the project, or any part of the
project as proposed;
(2) publish the plan in the Federal Register;
(3) submit the plan so published to public hearing;
(4) provide notification of the proposed project,
at least 180 days in advance of the date any project
proposed under this section is to take effect--
(A) to employees who are likely to be
affected by the project; and
(B) to each House of the Congress;
(5) obtain approval from each agency involved of
the final version of the plan; and
(6) provide each House of the Congress with a
report at least 90 days in advance of the date the
project is to take effect setting forth the final
version of the plan as so approved.
(c) No demonstration project under this section may provide
for a waiver of--
(1) any provision of chapter 63 or subpart G of
this title;
(2)(A) any provision of law referred to in section
2302(b)(1) of this title; or
(B) any provision of law implementing any provision
of law referred to in section 2302(b)(1) of this title
by--
(i) providing for equal employment
opportunity through affirmative action; or
(ii) providing any right or remedy
available to any employee or applicant for
employment in the civil service;
(3) any provision of chapter 15 or subchapter III
of chapter 73 of this title;
(4) any rule or regulation prescribed under any
provision of law referred to in paragraph (1), (2), or
(3) of this subsection; or
(5) any provision of chapter 23 of this title, or
any rule or regulation prescribed under this title, if
such waiver is inconsistent with any merit system
principle or any provision thereof relating to
prohibited personnel practices.
(d)(1) Each demonstration project shall--
(A) involve not more than 5,000 individuals other
than individuals in any control groups necessary to
validate the results of the project; and
(B) terminate before the end of the 5-year period
beginning on the date on which the project takes
effect, except that the project may continue beyond the
date to the extent necessary to validate the results of
the project.
(2) Not more than 10 active demonstration projects may be
in effect at any time.
(e) Subject to the terms of any written agreement or
contract between the Office and an agency, a demonstration
project involving the agency may be terminated by the Office,
or the agency, if either determines that the project creates a
substantial hardship on, or is not in the best interests of,
the public, the Federal Government, employees, or eligibles.
(f) Employees within a unit with respect to which a labor
organization is accorded exclusive recognition under chapter 71
of this title shall not be included within any project under
subsection (a) of this section--
(1) if the project would violate a collective
bargaining agreement (as defined in section 7103(8) of
this title) between the agency and the labor
organization, unless there is another written agreement
with respect to the project between the agency and the
organization permitting the inclusion; or
(2) if the project is not covered by such a
collective bargaining agreement, until there has been
consultation or negotiation, as appropriate, by the
agency with the labor organization.
(g) Employees within any unit with respect to which a labor
organization has not been accorded exclusive recognition under
chapter 71 of this title shall not be included within any
project under subsection (a) of this section unless there has
been agency consultation regarding the project with the
employees in the unit.
(h) The Office shall provide for an evaluation of the
results of each demonstration project and its impact on
improving public management.
(i) Upon request of the Director of the Office of Personnel
Management, agencies shall cooperate with and assist the
Office, to the extent practicable, in any evaluation undertaken
under subsection (h) of this section and provide the Office
with requested information and reports relating to the
conducting of demonstration projects in their respective
agencies.
Sec. 4704. Allocation of funds
Funds appropriated to the Office of Personnel Management
for the purpose of this chapter may be allocated by the Office
to any agency conducting demonstration projects or assisting
the Office in conducting such projects. Funds so allocated
shall remain available for such period as may be specified in
appropriation Acts. No contract shall be entered into under
this chapter unless the contract has been provided for in
advance in appropriation Acts.
Sec. 4705. Regulations
The Office of Personnel Management shall prescribe
regulations to carry out the purpose of this chapter.
Subpart D--Pay and Allowances
CHAPTER 51--CLASSIFICATION
Sec.
5101. Purpose.
5102. Definitions; application.
5103. Determination of applicability.
5104. Basis for grading positions.
5105. Standards for classification of positions.
5106. Basis for classifying positions.
5107. Classification of positions.
5108. Classification of positions above GS-15.
5109. Positions classified by statute.
5110. Review of classification of positions.
5111. Revocation and restoration of authority to classify positions.
5112. General authority of the Office of Personnel Management.
5113. Classification records.
[5114. Repealed.]
5115. Regulations.
Sec. 5101. Purpose
It is the purpose of this chapter to provide a plan for
classification of positions whereby--
(1) in determining the rate of basic pay which an
employee will receive--
(A) the principle of equal pay for
substantially equal work will be followed; and
(B) variations in rates of basic pay paid
to different employees will be in proportion to
substantial differences in the difficulty,
responsibility, and qualification requirements
of the work performed and to the contributions
of employees to efficiency and economy in the
service; and
(2) individual positions will, in accordance with
their duties, responsibilities, and qualification
requirements, be so grouped and identified by classes
and grades, as defined by section 5102 of this title,
and the various classes will be so described in
published standards, as provided by section 5105 of
this title, that the resulting position-classification
system can be used in all phases of personnel
administration.
Sec. 5102. Definitions; application
(a) For the purpose of this chapter--
(1) ``agency'' means--
(A) an Executive agency;
(B) the Library of Congress;
(C) the Botanic Garden;
(D) the Government Printing Office;
(E) the Office of the Architect of the
Capitol; and
(F) the government of the District of
Columbia;
but does not include--
(i) a Government controlled corporation;
(ii) the Tennessee Valley Authority;
(iii) the Virgin Islands Corporation;
(iv) the Atomic Energy Commission;
(v) the Central Intelligence Agency;
(vi) the National Security Agency,
Department of Defense;
(vii) \1\ the General Accounting Office;
---------------------------------------------------------------------------
\1\ So in law. Subsection (a)(1) does not contain a clause (viii).
Section 3548(a)(2) of the National Defense Authorization for Fiscal
Year 1997 (Public Law 104-201; 110 Stat. 2868) amended subsection
(a)(1) of this title by striking clause (vi) and redesignating clauses
(vii) through (xi) as clauses (vi) through (x), respectively. Prior to
this amendment a clause (ix) did not exist.
---------------------------------------------------------------------------
(ix) the Defense Intelligence Agency,
Department of Defense;\2\
---------------------------------------------------------------------------
\2\ Section 501(g)(2) of the Intelligence Authorization Act for
Fiscal Year 1995 (Public Law 103-359; 108 Stat. 3429) amended this
clause by striking the period at the end and inserting ``; or''. The
amendment probably should have inserted ``or'' after the semicolon at
the end.
---------------------------------------------------------------------------
(x) the National Imagery and Mapping
Agency, Department of Defense.\3\
---------------------------------------------------------------------------
\3\ So in law. The period probably should be a semicolon. See
section 501(g)(3) of the Intelligence Authorization Act for Fiscal Year
1995 (Public Law 103-359; 108 Stat. 3429).
---------------------------------------------------------------------------
(2) ``employee'' means an individual employed in or
under an agency;
(3) ``position'' means the work, consisting of the
duties and responsibilities, assignable to an employee;
(4) ``class'' or ``class of positions'' includes
all positions which are sufficiently similar, as to--
(A) kind or subject-matter of work;
(B) level of difficulty and responsibility;
and
(C) the qualification requirements of the
work;
to warrant similar treatment in personnel and pay
administration; and
(5) ``grade'' includes all classes of positions
which, although different with respect to kind or
subject-matter of work, are sufficiently equivalent as
to--
(A) level of difficulty and responsibility;
and
(B) level of qualification requirements of
the work;
to warrant their inclusion within one range of rates of
basic pay in the General Schedule.
(b) Except as provided by subsections (c) and (d) of this
section, this chapter applies to all civilian positions and
employees in or under an agency, including positions in local
boards and appeal boards within the Selective Service System
and employees occupying those positions.
(c) This chapter does not apply to--
[ (1) Repealed. Pub. L. 91-375, Sec. 6(c)(9), Aug.
12, 1970, 84 Stat. 776.]
(2) members of the Foreign Service whose pay is
fixed under the Foreign Service Act of 1980; and
positions in or under the Department of State which
are--
(A) connected with the representation of
the United States to international
organizations; or
(B) specifically exempted by statute from
this chapter or other classification or pay
statute;
(3) physicians, dentists, nurses, and other
employees in the Veterans Health Administration of the
Department of Veterans Affairs whose pay is fixed under
chapter 73 of title 38;
(4) teachers, school officials, and employees of
the Board of Education of the District of Columbia
whose pay is fixed under chapter 15 of title 31,
District of Columbia Code; the chief judges and the
associate judges of the Superior Court of the District
of Columbia and the District of Columbia Court of
Appeals; and nonjudicial employees of the District of
Columbia court system whose pay is fixed under title 11
of the District of Columbia Code;
(5) members of the Metropolitan Police, the Fire
Department of the District of Columbia, the United
States Park Police, and the Executive Protective
Service; members of the police force of the National
Zoological Park whose pay is fixed under section 5375
of this title; and members of the police forces of the
Bureau of Engraving and Printing and the United States
Mint whose pay is fixed under section 5378 of this
title;
(6) lighthouse keepers and civilian employees on
lightships and vessels of the Coast Guard whose pay is
fixed under section 432 (f) and (g) of title 14;
(7) employees in recognized trades or crafts, or
other skilled mechanical crafts, or in unskilled,
semiskilled, or skilled manual-labor occupations, and
other employees including foremen and supervisors in
positions having trade, craft, or laboring experience
and knowledge as the paramount requirement, and
employees in the Bureau of Engraving and Printing whose
duties are to perform or to direct manual or machine
operations requiring special skill or experience, or to
perform or direct the counting, examining, sorting, or
other verification of the product of manual or machine
operations;
(8) officers and members of crews of vessels;
(9) employees of the Government Printing Office
whose pay is fixed under section 305 of title 44;
(10) civilian professors, instructors, and
lecturers at a professional military education school
(and, in the case of the George C. Marshall European
Center for Security Studies, the Director and the
Deputy Director) whose pay is fixed under section 1595,
4021, 7478, or 9081 of title 10; civilian professors,
lecturers, and instructors at the Military Academy, the
Naval Academy, and the Air Force Academy whose pay is
fixed under sections 4338, 6952, and 9338,
respectively, of title 10; senior professors,
professors, associate and assistant professors, and
instructors at the Naval Postgraduate School whose pay
is fixed under section 7044 of title 10; the Academic
Dean of the Postgraduate School of the Naval Academy
whose pay is fixed under section 7043 of title 10;
civilian professors, instructors, and lecturers in the
defense acquisition university structure (including the
Defense Systems Management College) whose pay is fixed
under section 1746(b) of title 10;
(11) aliens or noncitizens of the United States who
occupy positions outside the United States;
[ (12) Repealed. Pub. L. 104-201,
Sec. 3548(a)(2)(B), Sept. 23, 1996, 110 Stat. 2868.]
(13) employees who serve without pay or at nominal
rates of pay;
(14) employees whose pay is not wholly from
appropriated funds of the United States (other than
employees of the Federal Retirement Thrift Investment
Management System appointed under section 8474(c)(2) of
this title), except that with respect to the Veterans'
Canteen Service, Department of Veterans Affairs this
paragraph applies only to employees necessary for the
transaction of the business of the Service at canteens,
warehouses, and storage depots whose employment is
authorized by section 7802 of title 38;
(15) employees whose pay is fixed under a
cooperative agreement between the United States and--
(A) a State or territory or possession of
the United States, or political subdivision
thereof; or
(B) an individual or organization outside
the service of the Government of the United
States;
(16) student nurses, medical or dental interns,
residents-in-training, student dietitians, student
physical therapists, student occupational therapists,
and other student employees, assigned or attached to a
hospital, clinic, or laboratory primarily for training
purposes, whose pay is fixed under subchapter V of
chapter 53 of this title or sections 7405 and 7406 of
title 38;
(17) inmates, patients, or beneficiaries receiving
care or treatment or living in Government agencies or
institutions;
(18) experts or consultants, when employed
temporarily or intermittently in accordance with
section 3109 of this title;
(19) emergency or seasonal employees whose
employment is of uncertain or purely temporary
duration, or who are employed for brief periods at
intervals;
(20) employees employed on a fee, contract, or
piece work basis;
(21) employees who may lawfully perform their
duties concurrently with their private profession,
business, or other employment, and whose duties require
only a portion of their time, when it is impracticable
to ascertain or anticipate the proportion of time
devoted to the service of the Government of the United
States;
(22) ``teachers'' and ``teaching positions'' as
defined by section 901 of title 20;
(23) administrative patent judges and designated
administrative patent judges in the United States
Patent and Trademark Office;
(24) temporary positions in the Bureau of the
Census established under section 23 of title 13, and
enumerator positions in the Bureau of the Census;
(25) positions for which rates of basic pay are
individually fixed, or expressly authorized to be
fixed, by other statute, at or in excess of the rate
for level V of the Executive Schedule;
(26) civilian members of the faculty of the Coast
Guard Academy whose pay is fixed under section 186 of
title 14;
(27) members of the police of the Library of
Congress whose pay is fixed under section 167 of title
2;
(28) civilian members of the faculty of the Air
Force Institute of Technology whose pay is fixed under
section 9314 of title 10;
(29) administrative law judges appointed under
section 3105; or
(30) members of agency boards of contract appeals
appointed under section 8 of the contract Disputes Act
of 1978.
(d) This chapter does not apply to an employee of the
Office of the Architect of the Capitol whose pay is fixed by
other statute. Subsection (c) of this section, except paragraph
(7), does not apply to the Office of the Architect of the
Capitol.
Sec. 5103. Determination of applicability
The Office of Personnel Management shall determine finally
the applicability of section 5102 of this title to specific
positions and employees, except for positions and employees in
the Office of the Architect of the Capitol.
Sec. 5104. Basis for grading positions
The General Schedule, the symbol for which is ``GS'', is
the basic pay schedule for positions to which this chapter
applies. The General Schedule is divided into grades of
difficulty and responsibility of work, as follows:
(1) Grade GS-1 includes those classes of positions
the duties of which are to perform, under immediate
supervision, with little or no latitude for the
exercise of independent judgment--
(A) the simplest routine work in office,
business, or fiscal operations; or
(B) elementary work of a subordinate
technical character in a professional,
scientific, or technical field.
(2) Grade GS-2 includes those classes of positions
the duties of which are--
(A) to perform, under immediate
supervision, with limited latitude for the
exercise of independent judgment, routine work
in office, business, or fiscal operations, or
comparable subordinate technical work of
limited scope in a professional, scientific, or
technical field, requiring some training or
experience; or
(B) to perform other work of equal
importance, difficulty, and responsibility, and
requiring comparable qualifications.
(3) Grade GS-3 includes those classes of positions
the duties of which are--
(A) to perform, under immediate or general
supervision, somewhat difficult and responsible
work in office, business, or fiscal operations,
or comparable subordinate technical work of
limited scope in a professional, scientific, or
technical field, requiring in either case--
(i) some training or experience;
(ii) working knowledge of a special
subject matter; or
(iii) to some extent the exercise
of independent judgment in accordance
with well-established policies,
procedures, and techniques; or
(B) to perform other work of equal
importance, difficulty, and responsibility, and
requiring comparable qualifications.
(4) Grade GS-4 includes those classes of positions
the duties of which are--
(A) to perform, under immediate or general
supervision, moderately difficult and
responsible work in office, business, or fiscal
operations, or comparable subordinate technical
work in a professional, scientific, or
technical field, requiring in either case--
(i) a moderate amount of training
and minor supervisory or other
experience;
(ii) good working knowledge of a
special subject matter or a limited
field of office, laboratory,
engineering, scientific, or other
procedure and practice; and
(iii) the exercise of independent
judgment in accordance with well-
established policies, procedures, and
techniques; or
(B) to perform other work of equal
importance, difficulty, and responsibility, and
requiring comparable qualifications.
(5) Grade GS-5 includes those classes of positions
the duties of which are--
(A) to perform, under general supervision,
difficult and responsible work in office,
business, or fiscal administration, or
comparable subordinate technical work in a
professional, scientific, or technical field,
requiring in either case--
(i) considerable training and
supervisory or other experience;
(ii) broad working knowledge of a
special subject matter or of office,
laboratory, engineering, scientific, or
other procedure and practice; and
(iii) the exercise of independent
judgment in a limited field;
(B) to perform, under immediate
supervision, and with little opportunity for
the exercise of independent judgment, simple
and elementary work requiring professional,
scientific, or technical training; or
(C) to perform other work of equal
importance, difficulty, and responsibility, and
requiring comparable qualifications.
(6) Grade GS-6 includes those classes of positions
the duties of which are--
(A) to perform, under general supervision,
difficult and responsible work in office,
business, or fiscal administration, or
comparable subordinate technical work in a
professional, scientific, or technical field,
requiring in either case--
(i) considerable training and
supervisory or other experience;
(ii) broad working knowledge of a
special and complex subject matter,
procedure, or practice, or of the
principles of the profession, art, or
science involved; and
(iii) to a considerable extent the
exercise of independent judgment; or
(B) to perform other work of equal
importance, difficulty, and responsibility, and
requiring comparable qualifications.
(7) Grade GS-7 includes those classes of positions
the duties of which are--
(A) to perform, under general supervision,
work of considerable difficulty and
responsibility along special technical or
supervisory lines in office, business, or
fiscal administration, or comparable
subordinate technical work in a professional,
scientific, or technical field, requiring in
either case--
(i) considerable specialized or
supervisory training and experience;
(ii) comprehensive working
knowledge of a special and complex
subject matter; procedure, or practice,
or of the principles of the profession,
art, or science involved; and
(iii) to a considerable extent the
exercise of independent judgment;
(B) under immediate or general supervision,
to perform somewhat difficult work requiring--
(i) professional, scientific, or
technical training; and
(ii) to a limited extent, the
exercise of independent technical
judgment; or
(C) to perform other work of equal
importance, difficulty, and responsibility, and
requiring comparable qualifications.
(8) Grade GS-8 includes those classes of positions
the duties of which are--
(A) to perform, under general supervision,
very difficult and responsible work along
special technical or supervisory lines in
office, business, or fiscal administration,
requiring--
(i) considerable specialized or
supervisory training and experience;
(ii) comprehensive and thorough
working knowledge of a specialized and
complex subject matter, procedure, or
practice, or of the principles of the
profession, art, or science involved;
and
(iii) to a considerable extent the
exercise of independent judgment; or
(B) to perform other work of equal
importance, difficulty, and responsibility, and
requiring comparable qualifications.
(9) Grade GS-9 includes those classes of positions
the duties of which are--
(A) to perform, under general supervision,
very difficult and responsible work along
special technical, supervisory, or
administrative lines in office, business, or
fiscal administration, requiring--
(i) somewhat extended specialized
training and considerable specialized,
supervisory, or administrative
experience which has demonstrated
capacity for sound independent work;
(ii) thorough and fundamental
knowledge of a special and complex
subject matter, or of the profession,
art, or science involved; and
(iii) considerable latitude for the
exercise of independent judgment;
(B) with considerable latitude for the
exercise of independent judgment, to perform
moderately difficult and responsible work,
requiring--
(i) professional, scientific, or
technical training equivalent to that
represented by graduation from a
college or university of recognized
standing; and
(ii) considerable additional
professional, scientific, or technical
training or experience which has
demonstrated capacity for sound
independent work; or
(C) to perform other work of equal
importance, difficulty, and responsibility, and
requiring comparable qualifications.
(10) Grade GS-10 includes those classes of
positions the duties of which are--
(A) to perform, under general supervision,
highly difficult and responsible work along
special technical, supervisory, or
administrative lines in office, business, or
fiscal administration, requiring--
(i) somewhat extended specialized,
supervisory, or administrative training
and experience which has demonstrated
capacity for sound independent work;
(ii) thorough and fundamental
knowledge of a specialized and complex
subject matter, or of the profession,
art, or science involved; and
(iii) considerable latitude for the
exercise of independent judgment; or
(B) to perform other work of equal
importance, difficulty, and responsibility, and
requiring comparable qualifications.
(11) Grade GS-11 includes those classes of
positions the duties of which are--
(A) to perform, under general
administrative supervision and with wide
latitude for the exercise of independent
judgment, work of marked difficulty and
responsibility along special technical,
supervisory, or administrative lines in office,
business, or fiscal administration, requiring--
(i) extended specialized,
supervisory, or administrative training
and experience which has demonstrated
important attainments and marked
capacity for sound independent action
or decision; and
(ii) intimate grasp of a
specialized and complex subject matter,
or of the profession, art, or science
involved, or of administrative work of
marked difficulty;
(B) with wide latitude for the exercise of
independent judgment, to perform responsible
work of considerable difficulty requiring
somewhat extended professional, scientific, or
technical training and experience which has
demonstrated important attainments and marked
capacity for independent work; or
(C) to perform other work of equal
importance, difficulty, and responsibility, and
requiring comparable qualifications.
(12) Grade GS-12 includes those classes of
positions the duties of which are--
(A) to perform, under general
administrative supervision, with wide latitude
for the exercise of independent judgment, work
of a very high order of difficulty and
responsibility along special technical,
supervisory, or administrative lines in office,
business, or fiscal administration, requiring--
(i) extended specialized,
supervisory, or administrative training
and experience which has demonstrated
leadership and attainments of a high
order in specialized or administrative
work; and
(ii) intimate grasp of a
specialized and complex subject matter
or of the profession, art, or science
involved;
(B) under general administrative
supervision, and with wide latitude for the
exercise of independent judgment, to perform
professional, scientific, or technical work of
marked difficulty and responsibility requiring
extended professional, scientific, or technical
training and experience which has demonstrated
leadership and attainments of a high order in
professional, scientific, or technical
research, practice, or administration; or
(C) to perform other work of equal
importance, difficulty, and responsibility, and
requiring comparable qualifications.
(13) Grade GS-13 includes those classes of
positions the duties of which are--
(A) to perform, under administrative
direction, with wide latitude for the exercise
of independent judgment, work of unusual
difficulty and responsibility along special
technical, supervisory, or administrative
lines, requiring extended specialized,
supervisory, or administrative training and
experience which has demonstrated leadership
and marked attainments;
(B) to serve as assistant head of a major
organization involving work of comparable level
within a bureau;
(C) to perform, under administrative
direction, with wide latitude for the exercise
of independent judgment, work of unusual
difficulty and responsibility requiring
extended professional, scientific, or technical
training and experience which has demonstrated
leadership and marked attainments in
professional, scientific, or technical
research, practice, or administration; or
(D) to perform other work of equal
importance, difficulty, and responsibility, and
requiring comparable qualifications.
(14) Grade GS-14 includes those classes of
positions the duties of which are--
(A) to perform, under general
administrative direction, with wide latitude
for the exercise of independent judgment, work
of exceptional difficulty and responsibility
along special technical, supervisory, or
administrative lines which has demonstrated
leadership and unusual attainments;
(B) to serve as head of a major
organization within a bureau involving work of
comparable level;
(C) to plan and direct or to plan and
execute major professional, scientific,
technical, administrative, fiscal, or other
specialized programs, requiring extended
training and experience which has demonstrated
leadership and unusual attainments in
professional, scientific, or technical
research, practice, or administration, or in
administrative, fiscal, or other specialized
activities; or
(D) to perform consulting or other
professional, scientific, technical,
administrative, fiscal, or other specialized
work of equal importance, difficulty, and
responsibility, and requiring comparable
qualifications.
(15) Grade GS-15 includes those classes of
positions the duties of which are--
(A) to perform, under general
administrative direction, with very wide
latitude for the exercise of independent
judgment, work of outstanding difficulty and
responsibility along special technical,
supervisory, or administrative lines which has
demonstrated leadership and exceptional
attainments;
(B) to serve as head of a major
organization within a bureau involving work of
comparable level;
(C) to plan and direct or to plan and
execute specialized programs of marked
difficulty, responsibility, and national
significance, along professional, scientific,
technical, administrative, fiscal, or other
lines, requiring extended training and
experience which has demonstrated leadership
and unusual attainments in professional,
scientific, or technical research, practice, or
administration, or in administrative, fiscal,
or other specialized activities; or
(D) to perform consulting or other
professional, scientific, technical,
administrative, fiscal, or other specialized
work of equal importance, difficulty, and
responsibility, and requiring comparable
qualifications.
Sec. 5105. Standards for classification of positions
(a) The Office of Personnel Management, after consulting
the agencies, shall prepare standards for placing positions in
their proper classes and grades. The Office may make such
inquiries or investigations of the duties, responsibilities,
and qualification requirements of positions as it considers
necessary for this purpose. The agencies, on request of the
Office, shall furnish information for and cooperate in the
preparation of the standards. In the standards, which shall be
published in such form as the Office may determine, the Office
shall--
(1) define the various classes of positions in
terms of duties, responsibilities, and qualification
requirements;
(2) establish the official class titles; and
(3) set forth the grades in which the classes have
been placed by the Office.
(b) The Office, after consulting the agencies to the extent
considered necessary, shall revise, supplement, or abolish
existing standards, or prepare new standards, so that, as
nearly as may be practicable, positions existing at any given
time will be covered by current published standards.
(c) The official class titles established under subsection
(a)(2) of this section shall be used for personnel, budget, and
fiscal purposes. However, this requirement does not prevent the
use of organizational or other titles for internal
administration, public convenience, law enforcement, or similar
purposes.
Sec. 5106. Basis for classifying positions
(a) Each position shall be placed in its appropriate class.
The basis for determining the appropriate class is the duties
and responsibilities of the position and the qualifications
required by the duties and responsibilities.
(b) Each class shall be placed in its appropriate grade.
The basis for determining the appropriate grade is the level of
difficulty, responsibility, and qualification requirements of
the work of the class.
(c) Appropriated funds may not be used to pay an employee
who places a supervisory position in a class and grade solely
on the basis of the size of the organization unit or the number
of subordinates supervised. These factors may be given effect
only to the extent warranted by the work load of the
organization unit and then only in combination with other
factors, such as the kind, difficulty, and complexity of work
supervised, the degree and scope of responsibility delegated to
the supervisor, and the kind, degree, and character of the
supervision exercised.
Sec. 5107. Classification of positions
Except as otherwise provided by this chapter, each agency
shall place each position under its jurisdiction in its
appropriate class and grade in conformance with standards
published by the Office of Personnel Management or, if no
published standards apply directly, consistently with published
standards. When facts warrant, an agency may change a position
which it has placed in a class or grade under this section from
that class or grade to another class or grade. Subject to
subchapter VI of chapter 53 of this title, these actions of an
agency are the basis for pay and personnel transactions until
changed by certificate of the Office.
Sec. 5108. Classification of positions above GS-15
(a) The Office of Personnel Management may, for any
Executive agency--
(1) establish, and from time to time revise, the
maximum number of positions which may at any one time
be classified above GS-15; and
(2) establish standards and procedures (including
requiring agencies, where necessary in the judgment of
the Office, to obtain the prior approval of the Office)
in accordance with which positions may be classified
above GS-15.
(b) The President, rather than the Office, shall exercise
the authority under subsection (a) in the case of positions
proposed to be placed in the Federal Bureau of Investigation
and Drug Enforcement Administration Senior Executive Service.
Sec. 5109. Positions classified by statute
(a) The position held by an employee of the Department of
Agriculture while he, under section 450d of title 7, is
designated and vested with a delegated regulatory function or
part thereof shall be classified in accordance with this
chapter, but not lower than GS-14.
(b)(1) The position held by a fully experienced and
qualified railroad safety inspector of the Department of
Transportation shall be classified in accordance with this
chapter, but not lower than GS-12.
(2) The position held by a railroad safety specialist of
the Department shall be classified in accordance with this
chapter, but not lower than GS-13.
Sec. 5110. Review of classification of positions
(a) The Office of Personnel Management, from time to time,
shall review such number of positions in each agency as will
enable the Office to determine whether the agency is placing
positions in classes and grades in conformance with or
consistently with published standards.
(b) When the Office finds under subsection (a) of this
section that a position is not placed in its proper class and
grade in conformance with published standards or that a
position for which there is no published standard is not placed
in the class and grade consistently with published standards,
it shall, after consultation with appropriate officials of the
agency concerned, place the position in its appropriate class
and grade and shall certify this action to the agency. The
agency shall act in accordance with the certificate, and the
certificate is binding on all administrative, certifying,
payroll, disbursing, and accounting officials.
Sec. 5111. Revocation and restoration of authority to classify
positions
(a) When the Office of Personnel Management finds that an
agency is not placing positions in classes and grades in
conformance with or consistently with published standards, it
may revoke or suspend the authority granted to the agency by
section 5107 of this title and require that prior approval of
the Office be secured before an action placing a position in a
class and grade becomes effective for payroll and other
personnel purposes. The Office may limit the revocation or
suspension to--
(1) the departmental or field service, or any part
thereof;
(2) a geographic area;
(3) an organization unit or group of organization
units;
(4) certain types of classification actions;
(5) classes in particular occupational groups or
grades; or
(6) classes for which standards have not been
published.
(b) After revocation or suspension, the Office may restore
the authority to the extent that it is satisfied that later
actions placing positions in classes and grades will be in
conformance with or consistent with published standards.
Sec. 5112. General authority of the Office of Personnel Management
(a) Notwithstanding section 5107 of this title, the Office
of Personnel Management may--
(1) ascertain currently the facts as to the duties,
responsibilities, and qualification requirements of a
position;
(2) place in an appropriate class and grade a newly
created position or a position coming initially under
this chapter;
(3) decide whether a position is in its appropriate
class and grade; and
(4) change a position from one class or grade to
another class or grade when the facts warrant.
The Office shall certify to the agency concerned its action
under paragraph (2) or (4) of this subsection. The agency shall
act in accordance with the certificate, and the certificate is
binding on all administrative, certifying, payroll, disbursing,
and accounting officials.
(b) An employee affected or an agency may request at any
time that the Office exercise the authority granted to it by
subsection (a) of this section and the Office shall act on the
request.
Sec. 5113. Classification records
The Office of Personnel Management may--
(1) prescribe the form in which each agency shall
record the duties and responsibilities of positions and
the places where these records shall be maintained;
(2) examine these or other pertinent records of the
agency; and
(3) interview employees of the agency who have
knowledge of the duties and responsibilities of
positions and information as to the reasons for placing
a position in a class or grade.
[Sec. 5114. Repealed. Pub. L. 99-386, title I, Sec. 110(a), Aug. 22,
1986, 100 Stat. 822.]
Sec. 5115. Regulations
The Office of Personnel Management may prescribe
regulations necessary for the administration of this chapter,
except sections 5109 and 5114.
CHAPTER 53--PAY RATES AND SYSTEMS
---------------------------------------------------------------------------
\1\ So in law. The item for section 5304 does not conform to the
heading for such section.
---------------------------------------------------------------------------
SUBCHAPTER I--PAY COMPARABILITY SYSTEM
Sec.
5301. Policy.
5302. Definitions.
5303. Annual adjustments to pay schedules.
5304. Locality-based comparability payment.\1\
5304a. Authority to fix an alternative level of comparability
payments.
5305. Special pay authority.
5306. Pay fixed by administrative action.
5307. Limitation on certain payments.
SUBCHAPTER II--EXECUTIVE SCHEDULE PAY RATES
5311. The Executive Schedule.
5312. Positions at level I.
5313. Positions at level II.
5314. Positions at level III.
5315. Positions at level IV.
5316. Positions at level V.
5317. Presidential authority to place positions at levels IV and V.
5318. Adjustments in rates of pay.
SUBCHAPTER III--GENERAL SCHEDULE PAY RATES
5331. Definitions; application.
5332. The General Schedule.
5333. Minimum rate for new appointments.
5334. Rate on change of position or type of appointment; regulations.
5335. Periodic step-increases.
5336. Additional step-increases.
[5337. Repealed.]
5338. Regulations.
SUBCHAPTER IV--PREVAILING RATE SYSTEMS
5341. Policy.
5342. Definitions; application.
5343. Prevailing rate determinations; wage schedules; night
differentials.
5344. Effective date of wage increase; retroactive pay.
[5345. Repealed.]
5346. Job grading system.
5347. Federal Prevailing Rate Advisory Committee.
5348. Crews of vessels.
5349. Prevailing rate employees; legislative, judicial, Bureau of
Engraving and Printing, and government of the District of
Columbia.
SUBCHAPTER V--STUDENT-EMPLOYEES
5351. Definitions.
5352. Stipends.
5353. Quarters, subsistence, and laundry.
5354. Effect of detail or affiliation; travel expenses.
5355. Effect on other statutes.
5356. Appropriations.
SUBCHAPTER VI--GRADE AND PAY RETENTION
Sec.
5361. Definitions.
5362. Grade retention following a change of positions or
reclassification.
5363. Pay retention.
5364. Remedial actions.
5365. Regulations.
5366. Appeals.
SUBCHAPTER VII--MISCELLANEOUS PROVISIONS
5371. Health care positions.
5372. Administrative law judges.
5372a. Contract appeals board members.
5372b. Administrative appeals judges.
5373. Limitation on pay fixed by administrative action.
5374. Miscellaneous positions in the executive branch.
5375. Police force of the National Zoological Park.
5376. Pay for certain senior-level positions.
5377. Pay authority for critical positions.
5378. Police forces of the Bureau of Engraving and Printing and the
United States Mint.
5379. Student loan repayments.
SUBCHAPTER VIII--PAY FOR THE SENIOR EXECUTIVE SERVICE.
5381. Definitions.
5382. Establishment and adjustment of rates of pay for the Senior
Executive Service.
5383. Setting individual senior executive pay.
5384. Performance awards in the Senior Executive Service.
5385. Regulations.
SUBCHAPTER IX--SPECIAL OCCUPATIONAL PAY SYSTEMS
5391. Definitions.
5392. Establishment of special occupational pay systems.
SUBCHAPTER I--PAY COMPARABILITY SYSTEM
Sec. 5301. Policy
It is the policy of Congress that Federal pay fixing for
employees under the General Schedule be based on the principles
that--
(1) there be equal pay for substantially equal work
within each local pay area;
(2) within each local pay area, pay distinctions be
maintained in keeping with work and performance
distinctions;
(3) Federal pay rates be comparable with non-
Federal pay rates for the same levels of work within
the same local pay area; and
(4) any existing pay disparities between Federal
and non-Federal employees should be completely
eliminated.
Sec. 5302. Definitions
For the purpose of this subchapter--
(1) the term ``statutory pay system'' means a pay
system under--
(A) subchapter III, relating to the General
Schedule;
(B) section 403 of the Foreign Service Act
of 1980, relating to the Foreign Service of the
United States; or
(C) chapter 74 of title 38, relating to the
Veterans Health Administration (other than a
position subject to section 7451 of title 38);
(2) the term ``ECI'' means the Employment Cost
Index (wages and salaries, private industry workers)
published quarterly by the Bureau of Labor Statistics;
(3) the ``base quarter'' for any year is the 3-
month period ending on September 30 of such year;
(4) the term ``pay agent'' means the agent
designated by the President under section 5304(d)(1);
(5) the term ``locality'' or ``pay locality'' means
any locality, as established or modified under section
5304;
(6) the term ``pay disparity'' as used with respect
to a locality, means the extent to which rates of pay
payable under the General Schedule are generally lower
than the rates paid for the same levels of work by non-
Federal workers in the same locality; except as
otherwise required in this subchapter, a pay disparity
shall be expressed as a single percentage which, if
uniformly applied to employees within the locality who
are receiving rates of pay under the General Schedule,
would cause the rates payable to such employees to
become substantially equal (when considered in the
aggregate) to the rates paid to non-Federal workers for
the same levels of work in the same locality;
(7) the term ``comparability payment'' means a
payment payable under section 5304;
(8) the term ``rates of pay under the General
Schedule'', ``rates of pay for the General Schedule'',
or ``scheduled rates of basic pay'' means--
(A) the rates of basic pay set forth in the
General Schedule; and
(B) in the case of an employee receiving a
retained rate of basic pay under section 5363,
the rate of basic pay payable under such
section; and
(9) the term ``General Schedule position'' means
any position to which subchapter III applies.
Sec. 5303. Annual adjustments to pay schedules
(a) Effective as of the first day of the first applicable
pay period beginning on or after January 1 of each calendar
year, the rates of basic pay for each statutory pay system
shall be increased by the percentage (rounded to the nearest
one-tenth of 1 percent) equal to one-half of 1 percentage point
less than the percentage by which the ECI for the base quarter
of the year before the preceding calendar year exceeds the ECI
for the base quarter of the second year before the preceding
calendar year (if at all).
(b)(1) If, because of national emergency or serious
economic conditions affecting the general welfare, the
President should consider the pay adjustment which would
otherwise be required by subsection (a) in any year to be
inappropriate, the President shall--
(A) prepare and transmit to Congress before
September 1 of the preceding calendar year a plan for
such alternative pay adjustments as he considers
appropriate, together with the reasons therefor; and
(B) adjust the rates of pay of each statutory pay
system, in accordance with such plan, effective on the
same day as the increase under subsection (a) would
otherwise take effect.
(2) In evaluating an economic condition affecting the
general welfare under this subsection, the President shall
consider pertinent economic measures including, but not limited
to, the Indexes of Leading Economic Indicators, the Gross
National Product, the unemployment rate, the budget deficit,
the Consumer Price Index, the Producer Price Index, the
Employment Cost Index, and the Implicit Price Deflator for
Personal Consumption Expenditures.
(3) The President shall include in the report to Congress
under paragraph (1)(A) his assessment of the impact that the
alternative pay adjustments under this subsection will have on
the Government's ability to recruit and retain well-qualified
employees.
(c) The rates of basic pay that take effect under this
section--
(1) shall modify, supersede, or render
inapplicable, as the case may be, to the extent
inconsistent therewith, any prior rates of basic pay
under the statutory pay system involved (as last
adjusted under this section or prior provisions of
law); and
(2) shall be printed in the Federal Register and
the Code of Federal Regulations.
(d) An increase in rates of basic pay that takes effect
under this section is not an equivalent increase in pay within
the meaning of section 5335.
(e) This section does not impair any authority pursuant to
which rates of basic pay may be fixed by administrative action.
(f) Pay may not be paid, by reason of any provision of this
section (disregarding any comparability payment payable), at a
rate in excess of the rate of basic pay payable for level V of
the Executive Schedule.
(g) Any rate of pay under this section shall be initially
adjusted, effective on the effective date of the rate of pay,
under conversion rules prescribed by the President or by such
agency or agencies as the President may designate.
Sec. 5304. Locality-based comparability payments \1\
(a) Pay disparities shall be identified and reduced as
follows:
---------------------------------------------------------------------------
\1\ Section 302 of the Federal Employees Pay Comparability Act of
1990 (Public Law 101-509; 104 Stat. 1462) provides as follows:
---------------------------------------------------------------------------
SEC. 302. INTERIM GEOGRAPHIC ADJUSTMENTS.
---------------------------------------------------------------------------
(a) Definitions.--For the purpose of this section--
---------------------------------------------------------------------------
(1) the term ``area'' means any consolidated metropolitan
statistical area, primary metropolitan statistical area, or
metropolitan statistical area, with at least 5,000 General
Schedule employees; and
(2) the term ``pay relative'' shall have the meaning given
such term under regulations prescribed by the Bureau of Labor
Statistics.
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(b) Authority.--(1) The President may establish geographic
adjustments of up to 8 percent of basic pay which may be paid to each
General Schedule employee (including an employee covered by the
performance management and recognition system) whose duty station is
within any area where such adjustment is needed (as determined under
paragraph (2)).
(2) In determining areas where an interim geographic adjustment is
needed, the President shall consider available evidence of significant
pay disparities, including BLS information on pay relatives and
relevant commercial surveys, and recruitment or retention problems.
(c) Administration.--(1) An adjustment under this section shall be
administered to the extent practicable in the same manner as locality-
based comparability payments under subchapter I of chapter 53 of title
5, United States Code (as amended by this Act), including in terms of--
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(A) the basic pay to which a percentage is applied in
computing an amount payable under this section;
(B) the purposes for which any amount under this section is
to be considered part of basic pay;
(C) the time and manner in which amounts under this section
are to be paid (including any maximum rate limitation); and
(D) the authority of the President, upon request of an agency
head, to extend this section to employees who would not
otherwise be covered.
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(2) No amount payable under this section shall be taken into
account in any survey or computation under, or for any other purpose in
the administration of, section 5304 of title 5, United States Code (as
so amended).
[To reflect the probable intent of Congress this subsection has not
been redesignated, notwithstanding section 3(4)(B) of Public Law 102-
378.]
(d) Commencement and Termination Rules.--(1) The effective date of
an adjustment under this section shall be as determined by the
President, but not later than January 1, 1994.
(2)(A) The size of any payments under this section may be reduced
or terminated after the amendments made by section 101 of this Act take
effect, except that the reduction or termination of a payment under
this section may not have the effect of reducing, for the individual
involved, the total rate at which additional forms of basic pay (as
defined in subparagraph (B)) are payable to such individual.
(B) The total rate to which subparagraph (A) applies is the sum
of--
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(i) the rate at which comparability payments (under section
5304 of title 5, United States Code, as amended by such Act)
are payable; and
(ii) the rate at which payments under this section are
payable.
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(e) Employees Receiving Special Pay Rates.--The President (or his
designated agent) shall determine what, if any, geographic adjustment
shall be payable under this section in the case of an employee whose
rate of pay is fixed under section 5303 of title 5, United States Code
(as in effect before the date of enactment of this Act), section 5305
of title 5, United States Code (as amended by section 101 of this Act),
or any similar provision of law.
(f) Effective Date.--This section shall take effect on the date of
enactment of this Act.
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(1) Comparability payments shall be payable within
each locality determined to have a pay disparity
greater than 5 percent.
(2)(A) The localities having pay disparities, and
the size of those disparities, shall, for purposes of
any comparability payment scheduled to take effect in
any calendar year, be determined in accordance with the
appropriate report, as prepared and submitted to the
President under subsection (d)(1) for purposes of such
calendar year.
(B) Any computation necessary to determine the size
of the comparability payment to become payable for any
locality in a year (as well as any determination as to
the size of any pay disparity remaining after that
comparability payment is made) shall likewise be made
using data contained in the appropriate report
(described in subparagraph (A)) so prepared and
submitted for purposes of such calendar year.
(3) Subject to paragraph (4), the amount of the
comparability payments payable under this subsection in
a calendar year within any locality in which a
comparability payment is payable shall be computed
using such percentage as the President determines for
such locality under subsection (d)(2), except that--
(A) the percentage for the first calendar
year in which any amounts are payable under
this section may not be less than \1/5\ of the
amount needed to reduce the pay disparity of
the locality involved to 5 percent;
(B) the percentage for the second calendar
year in which any amounts are payable under
this section may not be less than \3/10\ of the
amount needed to reduce the pay disparity of
the locality involved to 5 percent;
(C) the percentage for the third calendar
year in which any amounts are payable under
this section may not be less than \2/5\ of the
amount needed to reduce the pay disparity of
the locality involved to 5 percent;
(D) the percentage for the fourth calendar
year in which any amounts are payable under
this section may not be less than \1/2\ of the
amount needed to reduce the pay disparity of
the locality involved to 5 percent;
(E) the percentage for the fifth calendar
year in which any amounts are payable under
this section may not be less than \3/5\ of the
amount needed to reduce the pay disparity of
the locality involved to 5 percent;
(F) the percentage for the sixth calendar
year in which any amounts are payable under
this section may not be less than \7/10\ of the
amount needed to reduce the pay disparity of
the locality involved to 5 percent;
(G) the percentage for the seventh calendar
year in which any amounts are payable under
this section may not be less than \4/5\ of the
amount needed to reduce the pay disparity of
the locality involved to 5 percent;
(H) the percentage for the eighth calendar
year in which any amounts are payable under
this section may not be less than \9/10\ of the
amount needed to reduce the pay disparity of
the locality involved to 5 percent; and
(I) the percentage for the ninth calendar
year in which any amounts are payable under
this section, and any year thereafter, may not
be less than the full amount necessary to
reduce the pay disparity of the locality
involved to 5 percent.
(4) Nothing in this section shall be considered to
preclude the President, in his discretion, from
adjusting comparability payments to a level higher than
the minimum level otherwise required in a calendar
year, including to the level necessary to eliminate a
locality's pay disparity completely.
(b) After the ninth calendar year (referred to in
subsection (a)(3)(I)), the level of comparability payments
payable within such locality may be reduced for any subsequent
calendar year, but only if, or to the extent that, the
reduction would not immediately create another pay disparity in
excess of 5 percent within the locality (taking into
consideration any comparability payments remaining payable).
(c)(1) The amount of the comparability payment payable
within any particular locality during a calendar year--
(A) shall be stated as a single percentage, which
shall be uniformly applicable to General Schedule
positions within the locality; and
(B) shall, for any employee entitled to receive a
comparability payment, be computed by applying that
percentage to such employee's scheduled rate of basic
pay (or, if lower due to a limitation on the rate
payable, the rate actually payable), subject to
subsection (g).
(2) A comparability payment--
(A) shall be considered to be part of basic pay for
purposes of retirement under chapter 83 or 84, as
applicable, life insurance under chapter 87, and
premium pay under subchapter V of chapter 55, and for
such other purposes as may be expressly provided for by
law or as the Office of Personnel Management may by
regulation prescribe; and
(B) shall be paid in the same manner and at the
same time as the basic pay payable to such employee
pursuant to any provision of law outside of this
section.
(3) Nothing in this subchapter shall be considered to
permit or require that any portion of a comparability payment
be taken into account for purposes of any adjustment under
section 5303.
(4)(A) Only employees receiving scheduled rates of basic
pay (subject to any pay limitation which may apply) shall be
eligible for comparability payments under this section.
(B) Comparability payments shall not be payable for service
performed in any position which may not, under subsection
(f)(1)(A), be included within a pay locality.
(d) In order to carry out this section, the President
shall--
(1) direct such agent as he considers appropriate
to prepare and submit to him annually, after
considering such views and recommendations as may be
submitted under subsection (e) (but not later than 13
months before the start of the calendar year for
purposes of which it is prepared), a report that--
(A) compares the rates of pay under the
General Schedule (disregarding any described in
section 5302(8)(C)) \1\ with the rates of pay
generally paid to non-Federal workers for the
same levels of work within each pay locality,
as determined on the basis of appropriate
surveys that shall be conducted by the Bureau
of Labor Statistics;
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\1\ Section 5302(8)(C) referred to in subsection (d)(1)(A) was
redesignated 5302(8)(B) of this title by Public Law 103-89, section
3(b)(1)(E)(i)(II), Sept. 30, 1993, 107 Stat. 981.
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(B) based on data from such surveys,
identifies each locality in which a pay
disparity exists and specifies the size of each
such pay disparity (before and after taking
into consideration any comparability payments
payable);
(C) makes recommendations for appropriate
comparability payments, in conformance with
applicable requirements of this section; and
(D) includes the views and recommendations
submitted under subsection (e);
(2) after considering the report of his agent
(including the views and recommendations referred to in
subsection (e)(2)(C) \2\, provide for or adjust
comparability payments in conformance with applicable
requirements of this section, effective as of the
beginning of the first applicable pay period commencing
on or after January 1 of the applicable year; and
---------------------------------------------------------------------------
\2\ Probably should include a closing parethesis.
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(3) transmit to Congress a report of the actions
taken under paragraph (2) (together with a copy of the
report submitted to him by his agent, including the
views and recommendations referred to in subsection
(e)(2)(C)) which shall--
(A) identify each pay locality;
(B) specify which localities have pay
disparities in excess of 5 percent, and the
size of the disparity existing in each of those
localities, according to the pay agent's most
recent report under paragraph (1) (before and
after taking into consideration any
comparability payments payable); and
(C) indicate the size of the respective
comparability payments (expressed as
percentages) which will be in effect under
paragraph (2) for the various pay localities
specified under subparagraph (B) for the
applicable calendar year.
(e)(1) The President shall establish a Federal Salary
Council of 9 members, of whom--
(A) 3 shall be chosen from among persons generally
recognized for their impartiality, knowledge, and
experience in the field of labor relations and pay
policy; and
(B) 6 shall be representatives of employee
organizations which represent substantial numbers of
employees holding General Schedule positions, and who
shall be selected giving due consideration to such
factors as the relative numbers of employees
represented by the various organizations, except that
not more than 3 members of the Council at any one time
shall be from a single employee organization, council,
federation, alliance, association, or affiliation of
employee organizations.
Members of the Council shall not receive pay by reason of their
service on the Council, nor shall members who are not otherwise
employees of the United States be considered employees by
reason of any such service. However, members under subparagraph
(A) may be paid expenses in accordance with section 5703. The
President shall designate one of the members to serve as
Chairman of the Federal Salary Council. One of the 3 members
under subparagraph (A) may be the Chairman of the Federal
Prevailing Rate Advisory Committee, notwithstanding the
restriction under section 5347(a)(1), and such individual may
also be designated to serve as Chairman of the Federal Salary
Council.
(2) The pay agent shall--
(A) provide for meetings with the Council and give
thorough consideration to the views and recommendations
of the Council and the individual views and
recommendations, if any, of the members of the Council
regarding--
(i) the establishment or modification of
pay localities;
(ii) the coverage of the surveys of pay
localities conducted by the Bureau of Labor
Statistics under subsection (d)(1)(A)
(including, but not limited to, the
occupations, establishment sizes, and
industries to be surveyed, and how pay
localities are to be surveyed);
(iii) the process of comparing the rates of
pay payable under the General Schedule with
rates of pay for the same levels of work
performed by non-Federal workers; and
(iv) the level of comparability payments
that should be paid in order to eliminate or
reduce pay disparities in accordance with the
requirements of this section;
(B) give thorough consideration to the views and
recommendations of employee organizations not
represented on the Council regarding the subjects in
subparagraph (A)(i)-(iv); and
(C) include in its report to the President the
views and recommendations submitted as provided in this
subsection by the Council, by any member of the
Council, and by employee organizations not represented
on the Council.
(f)(1) The pay agent may provide for such pay localities as
the pay agent considers appropriate, except that--
(A) each General Schedule position (excluding any
outside the continental United States, as defined in
section 5701(6)) shall be included with \1\ a pay
locality; and
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\1\ Probably should be ``within''.
---------------------------------------------------------------------------
(B) the boundaries of pay localities shall be
determined based on appropriate factors which may
include local labor market patterns, commuting
patterns, and practices of other employers.
(2)(A) The establishment or modification of any such
boundaries shall be effected by regulations which,
notwithstanding subsection (a)(2) of section 553, shall be
promulgated in accordance with the notice and comment
requirements of such section.
(B) Judicial review of any regulation under this subsection
shall be limited to whether or not it was promulgated in
accordance with the requirements referred to in subparagraph
(A).
(g)(1) Except as provided in paragraph (2), comparability
payments may not be paid at a rate which, when added to the
rate of basic pay otherwise payable to the employee involved,
would cause the total to exceed the rate of basic pay payable
for level IV of the Executive Schedule.
(2) The applicable maximum under this subsection shall be
level III of the Executive Schedule for--
(A) positions under subparagraphs (A)-(E) of
subsection (h)(1); and
(B) any positions under subsection (h)(1)(F) which
the President may determine.
(h)(1) For the purpose of this subsection, the term
``position'' means--
(A) a position to which section 5376 applies
(relating to certain senior-level positions);
(B) a Senior Executive Service position under
section 3132;
(C) a position in the Federal Bureau of
Investigation and Drug Enforcement Administration
Senior Executive Service under section 3151;
(D) a position to which section 5372 applies
(relating to administrative law judges appointed under
section 3105);
(E) a position to which section 5372a applies
(relating to contract appeals board members); and
(F) a position within an Executive agency not
covered under the General Schedule or any of the
preceding subparagraphs, the rate of basic pay for
which is (or, but for this section, would be) no more
than the rate payable for level IV of the Executive
Schedule;
but does not include--
(i) a position to which subchapter IV applies
(relating to prevailing rate systems);
(ii) a position as to which a rate of pay is
authorized under section 5377 (relating to critical
positions); or
(iii) a position to which subchapter II applies
(relating to the Executive Schedule).
(2)(A) Notwithstanding subsection (c)(4) or any other
provision of this section, but subject to subparagraph (B) and
paragraph (3), upon the request of the head of an Executive
agency with respect to 1 or more categories of positions, the
President may provide that each employee of such agency who
holds a position within such category, and within the
particular locality involved, shall be entitled to receive
comparability payments.
(B) A request by an agency head or exercise of authority by
the President under subparagraph (A) shall cover--
(i) with respect to the positions under
subparagraphs (A) through (E) of paragraph (1), all
positions described in the subparagraph or
subparagraphs involved (excluding any under clause (i)
or (ii) of such paragraph); and
(ii) with respect to the positions under paragraph
(1)(F), such positions as may be considered appropriate
(excluding any under clause (i) or (ii) of paragraph
(1)).
(C) Notwithstanding subsection (c)(4) or any other
provision of law, but subject to paragraph (3), in the case of
a category with positions that are in more than 1 Executive
agency, the President may, on his own initiative, provide that
each employee who holds a position within such category, and in
the locality involved, shall be entitled to receive
comparability payments. No later than 30 days before an
employee receives comparability payments under this
subparagraph, the President or the President's designee shall
submit a detailed report to the Congress justifying the reasons
for the extension, including consideration of recruitment and
retention rates and the expense of extending locality pay.
(3) Comparability payments under this subsection--
(A) may be paid only in any calendar year in which
comparability payments under the preceding provisions
of this section are payable with respect to General
Schedule positions within the same locality;
(B) shall take effect, within the locality
involved, on the first day of the first applicable pay
period commencing on or after such date as the
President designates (except that no date may be
designated which would require any retroactive
payments), and shall remain in effect through the last
day of the last applicable pay period commencing during
that calendar year;
(C) shall be computed using the same percentage as
is applicable, for the calendar year involved, with
respect to General Schedule positions within the same
locality; and
(D) shall be subject to the applicable limitation
under subsection (g).
(i) The Office of Personnel Management may prescribe
regulations, consistent with the provisions of this section,
governing the payment of comparability payments to employees.
Sec. 5304a. Authority to fix an alternative level of comparability
payments
(a) If, because of national emergency or serious economic
conditions affecting the general welfare, the President should
consider the level of comparability payments which would
otherwise be payable under section 5304 in any year to be
inappropriate, the President shall--
(1) prepare and transmit to Congress, at least 1
month before those comparability payments (disregarding
this section) would otherwise become payable, a report
describing the alternative level of payments which the
President instead intends to provide, including the
reasons why such alternative level is considered
necessary; and
(2) implement the alternative level of payments
beginning on the same date as would otherwise apply,
for the year involved, under section 5304.
(b) The requirements set forth in paragraphs (2) and (3),
respectively, of section 5303(b) shall apply with respect to
any decision to exercise any authority to fix an alternative
level of comparability payments under this section.
Sec. 5305. Special pay authority
(a) Whenever the President finds that the Government's
recruitment or retention efforts with respect to 1 or more
occupations in 1 or more areas or locations are, or are likely
to become, significantly handicapped, due to any of the
circumstances described in subsection (b), he may establish for
the areas or locations involved, with respect to individuals in
positions paid under any of the pay systems referred to in
subsection (c), higher minimum rates of basic pay for 1 or more
grades or levels, occupational groups, series, classes, or
subdivisions thereof, and may make corresponding increases in
all step rates of the pay range for each such grade or level.
However, a minimum rate so established may not exceed the
maximum pay rate prescribed by statute for the grade or level
by more than 30 percent, and no rate may be established under
this section (disregarding any amount payable under subsection
(g)) in excess of the rate of basic pay payable for level V of
the Executive Schedule. The President may authorize the
exercise of the authority conferred on him by this section by
the Office of Personnel Management or, in the case of
individuals not subject to the provisions of this title
governing appointment in the competitive service, by such other
agency as he may designate.
(b) The circumstances referred to in subsection (a) are--
(1) rates of pay offered by non-Federal employers
being significantly higher than those payable by the
Government within the area, location, occupational
group, or other class of positions under the pay system
involved;
(2) the remoteness of the area or location
involved;
(3) the undesirability of the working conditions or
the nature of the work involved (including exposure to
toxic substances or other occupational hazards); or
(4) any other circumstances which the President (or
an agency duly authorized or designated by the
President in accordance with the last sentence of
subsection (a)) considers appropriate.
(c) Authority under subsection (a) may be exercised with
respect to positions paid under--
(1) a statutory pay system; or
(2) any other pay system established by or under
Federal statute for civilian positions within the
executive branch.
(d) Within the limitations applicable under the preceding
provisions of this section, rates of pay established under this
section may be revised from time to time by the President or by
such agency as he may designate. The actions and revisions have
the force and effect of statute.
(e) An increase in a rate of basic pay established under
this section is not an equivalent increase in pay within the
meaning of section 5335.
(f) The rate of basic pay established under this section
and received by an individual immediately before a statutory
increase, which becomes effective prior to, on, or after the
date of enactment of the statute, in the pay schedule
applicable to such individual of any pay system specified in
subsection (c) of this section, shall be initially adjusted,
effective on the effective date of the statutory increase,
under conversion rules prescribed by the President or by such
agency as the President may designate.
(g)(1) The benefit of any comparability payments under
section 5304 shall be available to individuals receiving rates
of basic pay established under this section to such extent as
the President (or his designated agency) considers appropriate,
subject to paragraph (2) and subsection (h).
(2) Payments under this subsection may not be made if, or
to the extent that, when added to basic pay otherwise payable,
such payments would cause the total to exceed the rate of basic
pay payable for level IV of the Executive Schedule.
(h) The rate of basic pay payable to an individual under
this section may not, at any time, be less than the rate which
would then be payable to such individual (taking comparability
payments under section 5304 into account) if this section had
never been enacted.
NOTE:
Sections 401-407 of the Federal Employees Pay Comparability Act of
1990 (Public Law 101-509; 104 Stat. 1467) provide as follows:
SEC. 401. SHORT TITLE.
This title may be cited as the ``Federal Law Enforcement Pay Reform
Act of 1990''.
SEC. 402. DEFINITION.
For the purposes of this title, except as otherwise provided, the
term ``law enforcement officer'' means any law enforcement officer
within the meaning of section 5541(3) of title 5, United States Code,
with respect to whom the provisions of chapter 51 of such title apply.
SEC. 403. SPECIAL RATES FOR LAW ENFORCEMENT OFFICERS.
(a) Notwithstanding the procedures of section 5305 of title 5,
United States Code, as amended by section 101 of this Act, or similar
provision of law, higher minimum rates and corresponding increases in
all step rates of each designated General Schedule grade shall be
established for law enforcement officers in accordance with the
provisions of this section.
(b)(1) Effective on the first day of the first applicable pay
period beginning on or after January 1, 1992, the higher minimum rates
to be established are as follows:
GS-3................................................... Step 4
GS-4................................................... Step 4
GS-5................................................... Step 4
GS-6................................................... Step 3
GS-7................................................... Step 3
GS-8................................................... Step 3
GS-9................................................... Step 2
GS-10.................................................. Step 2
(2) Effective on the first day of the first applicable pay period
beginning on or after January 1, 1993, the higher minimum rates to be
established are as follows:
GS-3................................................... Step 7
GS-4................................................... Step 7
GS-5................................................... Step 8
GS-6................................................... Step 6
GS-7................................................... Step 5
GS-8................................................... Step 3
GS-9................................................... Step 2
GS-10.................................................. Step 2
(c) The higher minimum rates and corresponding higher rates for
each step rate of each designated grade shall apply to every law
enforcement officer in the designated grades (except in the case of any
law enforcement officer for whom a higher rate is authorized under
section 5305 of title 5, United States Code, as amended by section 101
of this Act, or similar provision of law) in the same manner as rates
established under section 5305 of such title, as so amended, and may be
increased in accordance with subsection (f) of such section 5305.
(d) Any interim entry-level adjustment under section 209 of this
Act which a law enforcement officer is receiving shall be eliminated on
the day before the effective date of the higher minimum rates under
subsection (b)(1).
SEC. 404. SPECIAL PAY ADJUSTMENTS FOR LAW ENFORCEMENT OFFICERS IN
SELECTED CITIES.
(a) A law enforcement officer shall be paid any applicable special
pay adjustment in accordance with the provisions of this section, but
such special pay adjustment shall be reduced by the amount of any
applicable interim geographic adjustment under section 302 of this Act,
any applicable locality-based comparability payment under section 5304
of title 5, United States Code, as amended by section 101 of this Act,
and, to the extent determined appropriate by the Office of Personnel
Management, any applicable special rate of pay under section 5305 of
such title, as so amended, or any similar provision of law (other than
section 403).
(b)(1) Except as provided in subsection (a), effective on the first
day of the first applicable pay period beginning on or after January 1,
1992, each law enforcement officer whose post of duty is in one of the
following areas shall receive an adjustment, which shall be a
percentage of the officer's rate of basic pay, as follows:
Area Differential
Boston-Lawrence-Salem, MA-NH Consolidated 16%
Metropolitan Statistical Area.
Chicago-Gary-Lake County, IL-IN-WI Consolidated 4%
Metropolitan Statistical Area.
Los Angeles-Anaheim-Riverside, CA Consolidated 16%
Metropolitan Statistical Area.
New York-Northern New Jersey-Long Island, NY-NJ-CT 16%
Consolidated Metropolitan Statistical Area.
Philadelphia-Wilmington-Trenton, PA-NJ-DE-MD 4%
Consolidated Metropolitan Statistical Area.
San Francisco-Oakland-San Jose, CA Consolidated 16%
Metropolitan Statistical Area.
San Diego, CA Metropolitan Statistical Area........ 8%
Washington-Baltimore DC-MD-VA-WV Consolidated 4%
Metropolitan Statistical Area.
(2) In the case of any area specified in paragraph (1) that
includes a portion, but not all, of a county, the Office of Personnel
Management may, at the request of the head of 1 or more law enforcement
agencies, extend the area specified in paragraph (1) to include, for
the purposes of this section, the entire county, if the Office
determines that such extension would be in the interests of good
personnel administration. Any such extension shall be applicable to
each law enforcement officer whose post of duty is in the area of the
extension.
(c)(1) A special pay adjustment under this section shall be
administered, to the extent practicable, in the same manner as a
locality-based comparability payment under section 5304 of title 5,
United States Code, as amended by section 101 of this Act, and shall be
considered part of basic pay to the same degree as such a locality-
based comparability payment.
(2) The Office of Personnel Management may prescribe such
regulations as it considers necessary concerning the payment of special
pay adjustments to law enforcement officers under this section.
SEC. 405. SAME BENEFITS FOR OTHER LAW ENFORCEMENT OFFICERS.
(a) The appropriate agency head (as defined in subsection (c))
shall prescribe regulations under which the purposes of sections 403,
404, and 407 shall be carried out with respect to individuals holding
positions described in subsection (b).
(b) This subsection applies with respect to any--
(1) [Repealed] \1\
(2) member of the United States Park Police;
(3) special agent within the Diplomatic Security Service;
(4) probation officer (referred to in section 3672 of title
18, United States Code); or
(5) pretrial services officer (referred to in section 3153
of title 18, United States Code).
(c) For the purposes of this section, the term ``appropriate agency
head'' means--
(1) [Repealed] \1\
---------------------------------------------------------------------------
\1\ Subsection (b)(1) and (c)(1) of section 405 were repealed by
section 118(e) of P.L. 105-61.
---------------------------------------------------------------------------
(2) with respect to any individual under subsection (b)(2),
the Secretary of the Interior;
(3) with respect to any individual under subsection (b)(3),
the Secretary of State;
(4) with respect to any individual under subsection (b)(4)
or (b)(5), the Director of the Administrative Office of the
United States Courts.
SEC. 406. FBI NEW YORK FIELD DIVISION.
(a) The total pay of an employee of the Federal Bureau of
Investigation assigned to the New York Field Division before the date
of September 29, 1993, in a position covered by the demonstration
project conducted under section 601 of the Intelligence Authorization
Act for Fiscal Year 1989 (Public Law 100-453) shall not be reduced as a
result of the termination of the demonstration project during the
period that employee remains employed after that date in a position
covered by the demonstration project.
(b) Beginning on September 30, 1993, any periodic payment under
section 601(a)(2) of the Intelligence Authorization Act for Fiscal Year
1989 for any such employee shall be reduced by the amount of any
increase in basic pay under title 5, United States Code, including the
following provisions: an annual adjustment under section 5303,
locality-based comparability payment under section 5304, initiation or
increase in a special pay rate under section 5305, promotion under
section 5334, periodic step increase under section 5335, merit increase
under section 5404, or other increase to basic pay under any provision
of law.
SEC. 407. RELOCATION PAYMENTS.
Notwithstanding section 5753(b)(1)(A) of title 5, United States
Code, as added by this Act, a law enforcement officer whose rate of
basic pay is less than $60,000 may receive a relocation payment of up
to $15,000 under section 5753.
Sec. 5306. Pay fixed by administrative action
(a) Notwithstanding sections 1341, 1342, and 1349-1351 and
subchapter II of chapter 15 of title 31--
(1) the rates of pay of--
(A) employees in the legislative,
executive, and judicial branches of the
Government of the United States (except
employees whose pay is disbursed by the
Secretary of the Senate or the Chief
Administrative Officer of the House of
Representatives) and of the government of the
District of Columbia, whose rates of pay are
fixed by administrative action under law and
are not otherwise adjusted under this
subchapter;
(B) employees under the Architect of the
Capitol, whose rates of pay are fixed under
section 166b-3a of title 40, and the
Superintendent of Garages, House office
buildings; and
(C) persons employed by the county
committees established under section 590h(b) of
title 16; and
(2) and \1\ minimum or maximum rate of pay (other
than a maximum rate equal to or greater than the
maximum rate then currently being paid under the
General Schedule as a result of a pay adjustment under
section 5303 (or prior corresponding provision of
law)), and any monetary limitation on or monetary
allowance for pay, applicable to employees described in
subparagraphs (A), (B), and (C) of paragraph (1);
---------------------------------------------------------------------------
\1\ The word ``and'' probably should read ``any''. See section
101(a)(1) of P.L. 101-509 (104 Stat. 1429).
---------------------------------------------------------------------------
may be adjusted, by the appropriate authority concerned,
effective at the beginning of the first applicable pay period
commencing on or after the day on which a pay adjustment
becomes effective under section 5303 (or prior provision of
law), by whichever of the following methods the appropriate
authority concerned considers appropriate--
(i) by an amount or amounts not in excess of the
pay adjustment provided under section 5303 for
corresponding rates of pay in the appropriate schedule
or scale of pay;
(ii) if there are no corresponding rates of pay, by
an amount or amounts equal or equivalent, insofar as
practicable and with such exceptions and modifications
as may be necessary to provide for appropriate pay
relationships between positions, to the amount of the
pay adjustment provided under section 5303; or
(iii) in the case of minimum or maximum rates of
pay, or monetary limitations of allowances with respect
to pay, by an amount rounded to the nearest $100 and
computed on the basis of a percentage equal or
equivalent, insofar as practicable and with such
variations as may be appropriate, to the percentage of
the pay adjustment provided under section 5303.
(b) An adjustment under subsection (a) in rates of pay,
minimum or maximum rates of pay, the monetary limitations or
allowances with respect to pay, shall be made in such manner as
the appropriate authority concerned considers appropriate.
(c) This section does not authorize any adjustment in the
rates of pay of employees whose rates of pay are fixed and
adjusted from time to time as nearly as is consistent with the
public interest in accordance with prevailing rates or
practices.
(d) This section does not impair any authority under which
rates of pay may be fixed by administrative action.
(e) Pay may not be paid, by reason of any exercise of
authority under this section, at a rate in excess of the rate
of basic pay payable for level V of the Executive Schedule.
Sec. 5307. Limitation on certain payments
(a)(1) Except as otherwise permitted by or under law, no
allowance, differential, bonus, award, or other similar cash
payment under this title may be paid to an employee in a
calendar year if, or to the extent that, when added to the
total basic pay paid or payable to such employee for service
performed in such calendar year as an employee in the executive
branch (or as an employee outside the executive branch to whom
chapter 51 applies), such payment would cause the total to
exceed the annual rate of basic pay payable for level I of the
Executive Schedule, as of the end of such calendar year.
(2) This section shall not apply to any payment under--
(A) subchapter III or VII of chapter 55 or section
5596;
(B) chapter 57 (other than section 5753, 5754, or
5755); or
(C) chapter 59 (other than section 5925, 5928,
5941(a)(2), or 5948).
(b)(1) Any amount which is not paid to an employee in a
calendar year because of the limitation under subsection (a)
shall be paid to such employee in a lump sum at the beginning
of the following calendar year.
(2) Any amount paid under this subsection in a calendar
year shall be taken into account for purposes of applying the
limitations under subsection (a) with respect to such calendar
year.
(c) The Office of Personnel Management shall prescribe such
regulations as may be necessary to carry out this section,
including regulations (consistent with section 5582) concerning
how a lump-sum payment under subsection (b) shall be made with
respect to any employee who dies before an amount payable to
such employee under subsection (b) is made.
SUBCHAPTER II--EXECUTIVE SCHEDULE PAY RATES
Sec. 5311. The Executive Schedule
The Executive Schedule, which is divided into five pay
levels, is the basic pay schedule for positions, other than
Senior Executive Service positions and positions in the Federal
Bureau of Investigation and Drug Enforcement Administration
Senior Executive Service, to which this subchapter applies.
Sec. 5312. Positions at level I
Level I of the Executive Schedule applies to the following
positions for which the annual rate of basic pay shall be the
rate determined with respect to such level under chapter 11 of
title 2, as adjusted by section 5318 of this title:
Secretary of State.
Secretary of the Treasury.
Secretary of Defense.
Attorney General.
Secretary of the Interior.
Secretary of Agriculture.
Secretary of Commerce.
Secretary of Labor.
Secretary of Health and Human Services.
Secretary of Housing and Urban Development.
Secretary of Transportation.
United States Trade Representative.
Secretary of Energy.
Secretary of Education.
Secretary of Veterans Affairs.
Director of Office of Management and Budget.
Commissioner of Social Security, Social Security
Administration.
Director of National Drug Control Policy.
Chairman, Board of Governors of the Federal Reserve
System.
Sec. 5313. Positions at level II
Level II of the Executive Schedule applies to the following
positions, for which the annual rate of basic pay shall be the
rate determined with respect to such level under chapter 11 of
title 2, as adjusted by section 5318 of this title:
Deputy Secretary of Defense.
Deputy Secretary of State.
Deputy Secretary of State for Management and
Resources.
Administrator, Agency for International
Development.
Administrator of the National Aeronautics and Space
Administration.
Deputy Secretary of Veterans Affairs.
Deputy Secretary of the Treasury.
Deputy Secretary of Transportation.
Chairman, Nuclear Regulatory Commission.
Chairman, Council of Economic Advisers.
Director of the Office of Science and Technology.
Director of Central Intelligence.
Secretary of the Air Force.
Secretary of the Army.
Secretary of the Navy.
Administrator, Federal Aviation Administration.
Director of the National Science Foundation.
Deputy Attorney General.
Deputy Secretary of Energy.
Deputy Secretary of Agriculture.
Director of the Office of Personnel Management.
Administrator, Federal Highway Administration.
Administrator of the Environmental Protection
Agency.
Under Secretary of Defense for Acquisition,
Technology, and Logistics.
Deputy Secretary of Labor.
Deputy Director of the Office of Management and
Budget.
Independent Members, Thrift Depositor Protection
Oversight Board.
Deputy Secretary of Health and Human Services.
Deputy Secretary of the Interior.
Deputy Secretary of Education.
Deputy Secretary of Housing and Urban Development.
Deputy Director of Management, Office of Management
and Budget.
Director of the Office of Federal Housing
Enterprise Oversight, Department of Housing and Urban
Development.
Deputy Commissioner of Social Security, Social
Security Administration.
Administrator of the Community Development
Financial Institutions Fund.
Deputy Director of National Drug Control Policy.
Members, Board of Governors of the Federal Reserve
System.
Sec. 5314. Positions at level III
Level III of the Executive Schedule applies to the
following positions, for which the annual rate of basic pay
shall be the rate determined with respect to such level under
chapter 11 of title 2, as adjusted by section 5318 of this
title:
Solicitor General of the United States.
Under Secretary of Commerce, Under Secretary of
Commerce for Economic Affairs, Under Secretary of
Commerce for Export Administration and Under Secretary
of Commerce for Travel and Tourism.
Under Secretaries of State (6).
Under Secretaries of the Treasury (3).
Administrator of General Services.
Administrator of the Small Business Administration.
Deputy Administrator, Agency for International
Development.
Chairman of the Merit Systems Protection Board.
Chairman, Federal Communications Commission.
Chairman, Board of Directors, Federal Deposit
Insurance Corporation.
Chairman, Federal Energy Regulatory Commission.
Chairman, Federal Trade Commission.
Chairman, Surface Transportation Board.
Chairman, National Labor Relations Board.
Chairman, Securities and Exchange Commission.
Chairman, Board of Directors of the Tennessee
Valley Authority.
Chairman, National Mediation Board.
Chairman, Railroad Retirement Board.
Chairman, Federal Maritime Commission.
Comptroller of the Currency.
Commissioner of Internal Revenue.
Under Secretary of Defense for Policy.
Under Secretary of Defense (Comptroller).
Under Secretary of Defense for Personnel and
Readiness.
Deputy Administrator of the National Aeronautics
and Space Administration.
Deputy Directors of Central Intelligence (2).
Director of the Office of Emergency Planning.
Director of the Peace Corps.
Deputy Director, National Science Foundation.
President of the Export-Import Bank of Washington.
Members, Nuclear Regulatory Commission.
Members, Defense Nuclear Facilities Safety Board.
Director of the Federal Bureau of Investigation,
Department of Justice.
Administrator of the National Highway Traffic
Safety Administration.
Administrator of the Federal Motor Carrier Safety
Administration.
Administrator, Federal Railroad Administration.
Chairman, National Transportation Safety Board.
Chairman of the National Endowment for the Arts the
incumbent of which also serves as Chairman of the
National Council on the Arts.
Chairman of the National Endowment for the
Humanities.
Director of the Federal Mediation and Conciliation
Service.
Federal Transit Administrator.
President, Overseas Private Investment Corporation.
Chairman, Postal Rate Commission.
Chairman, Occupational Safety and Health Review
Commission.
Governor of the Farm Credit Administration.
Chairman, Equal Employment Opportunity Commission.
Chairman, Consumer Product Safety Commission.
Under Secretaries of Energy (2).
Chairman, Commodity Futures Trading Commission.
Deputy United States Trade Representatives (3).
Chief Agricultural Negotiator.
Chairman, United States International Trade
Commission.
Under Secretary of Commerce for Oceans and
Atmosphere, the incumbent of which also serves as
Administrator of the National Oceanic and Atmospheric
Administration.
Associate Attorney General.
Chairman, Federal Mine Safety and Health Review
Commission.
Chairman, National Credit Union Administration
Board.
Deputy Director of the Office of Personnel
Management.
Under Secretary of Agriculture for Farm and Foreign
Agricultural Services.
Under Secretary of Agriculture for Food, Nutrition,
and Consumer Services.
Under Secretary of Agriculture for Natural
Resources and Environment.
Under Secretary of Agriculture for Research,
Education, and Economics.
Under Secretary of Agriculture for Food Safety.
Under Secretary of Agriculture for Marketing and Regulatory
Programs.\1\
---------------------------------------------------------------------------
\1\ Indentation so in original.
---------------------------------------------------------------------------
Director, Institute for Scientific and
Technological Cooperation.
Under Secretary of Agriculture for Rural
Development.
Administrator, Maritime Administration.
Executive Director, Property Review Board.
Deputy Administrator of the Environmental
Protection Agency.
Archivist of the United States.
Executive Director, Federal Retirement Thrift
Investment Board.
Deputy Under Secretary of Defense for Acquisition
and Technology.
Deputy Under Secretary of Defense for Logistics and
Materiel Readiness.
Director, Trade and Development Agency.
Under Secretary of Commerce for Technology.
Under Secretary for Health, Department of Veterans
Affairs.
Under Secretary for Benefits, Department of
Veterans Affairs.
Under Secretary for Memorial Affairs, Department of
Veterans Affairs.
Director of the Office of Government Ethics.
Administrator for Federal Procurement Policy.
Administrator, Office of Information and Regulatory
Affairs, Office of Management and Budget.
Director of the Office of Thrift Supervision.
Chairperson of the Federal Housing Finance Board.
Executive Secretary, National Space Council.
Controller, Office of Federal Financial Management,
Office of Management and Budget.
Under Secretary of Education.
chief executive officer, Resolution Trust
Corporation.<SUP>1,}2</SUP>
---------------------------------------------------------------------------
\1\ So in law. Should have been caps and lowercase.
\2\ The amendment made by section 5(b)(1) of the Resolution Trust
Corporation Completion Act (Public Law 103-204; 107 Stat. 2382),
striking the item ``chief executive officer of the Resolution Trust
Corporation.'', could not be executed.
---------------------------------------------------------------------------
Administrator, Research and Special Programs
Administration.
Under Secretary of Commerce for Intellectual
Property and Director of the United States Patent and
Trademark Office.
Register of Copyrights.
Deputy Director for Demand Reduction, Office of
National Drug Control Policy.
Deputy Director for Supply Reduction, Office of
National Drug Control Policy.
Deputy Director for State and Local Affairs, Office
of National Drug Control Policy.
Commissioner of Customs, Department of the Treasury
\3\
---------------------------------------------------------------------------
\3\ Subsections (a)(2) and (b) of section 238 of H.R. 3425 (113
Stat. 1501A-302) (as enacted into law by section 1000(a)(5) of Public
Law 106-113; 113 Stat. 1536) provides the following:
(2) Section 5314 of title 5, United States Code, is amended by
inserting at the end the following item: ``Commissioner of Customs,
Department of the Treasury''.
(b) Effective Date.--The amendment made by this subsection shall
take effect on January 1, 2000.
The amendment made by paragraph (2) should have included a period
inside the closing quotation marks. The language in subsection (b)
probably should have been ``The amendment made by this section''.
---------------------------------------------------------------------------
Sec. 5315. Positions at level IV
Level IV of the Executive Schedule applies to the following
positions, for which the annual rate of basic pay shall be the
rate determined with respect to such level under chapter 11 of
title 2, as adjusted by section 5318 of this title:
Deputy Administrator of General Services.
Associate Administrator of the National Aeronautics
and Space Administration.
Assistant Administrators, Agency for International
Development (6).
Regional Assistant Administrators, Agency for
International Development (4).
Under Secretary of the Air Force.
Under Secretary of the Army.
Under Secretary of the Navy.
Assistant Secretaries of Agriculture (2).
Assistant Secretaries of Commerce (11).
Assistant Secretaries of Defense (9).
Assistant Secretaries of the Air Force (4).
Assistant Secretaries of the Army (5).
Assistant Secretaries of the Navy (4).
Assistant Secretaries of Health and Human Services
(6).
Assistant Secretaries of the Interior (6).
Assistant Attorneys General (10).
Assistant Secretaries of Labor (10), one of whom
shall be the Assistant Secretary of Labor for Veterans'
Employment and Training.
Assistant Secretaries of the Treasury (7).
Members, United States International Trade
Commission (5).
Assistant Secretaries of Education (10).
General Counsel, Department of Education.
Inspector General, Department of Education.
Director of Civil Defense, Department of the Army.
Deputy Director of the Office of Emergency
Planning.
Deputy Director of the Office of Science and
Technology.
Deputy Director of the Peace Corps.
Assistant Directors of the Office of Management and
Budget (3).
General Counsel of the Department of Agriculture.
General Counsel of the Department of Commerce.
General Counsel of the Department of Defense.
General Counsel of the Department of Health and
Human Services.
Solicitor of the Department of the Interior.
Solicitor of the Department of Labor.
General Counsel of the National Labor Relations
Board.
General Counsel of the Department of the Treasury.
First Vice President of the Export-Import Bank of
Washington.
Members, Council of Economic Advisers.
Members, Board of Directors of the Export-Import
Bank of Washington.
Members, Federal Communications Commission.
Member, Board of Directors of the Federal Deposit
Insurance Corporation.
Directors, Federal Housing Finance Board.
Members, Federal Energy Regulatory Commission.
Members, Federal Trade Commission.
Members, Surface Transportation Board.
Members, National Labor Relations Board.
Members, Securities and Exchange Commission.
Members, Board of Directors of the Tennessee Valley
Authority.
Members, Merit Systems Protection Board.
Members, Federal Maritime Commission.
Members, National Mediation Board.
Members, Railroad Retirement Board.
Director of Selective Service.
Associate Director of the Federal Bureau of
Investigation, Department of Justice.
Members, Equal Employment Opportunity Commission
(4).
Director, Community Relations Service.
Members, National Transportation Safety Board.
General Counsel, Department of Transportation.
Deputy Administrator, Federal Aviation
Administration.
Assistant Secretaries of Transportation (4).
Deputy Federal Highway Administrator.
Administrator of the Saint Lawrence Seaway
Development Corporation.
Assistant Secretary for Science, Smithsonian
Institution.
Assistant Secretary for History and Art,
Smithsonian Institution.
Deputy Administrator of the Small Business
Administration.
Assistant Secretaries of Housing and Urban
Development (8).
General Counsel of the Department of Housing and
Urban Development.
Commissioner of Interama.
Federal Insurance Administrator, Federal Emergency
Management Agency.
Executive Vice President, Overseas Private
Investment Corporation.
Members, National Credit Union Administration Board
(2).
Members, Postal Rate Commission (4).
Members, Occupational Safety and Health Review
Commission.
Deputy Under Secretaries of the Treasury (or
Assistant Secretaries of the Treasury) (2).
Members, Consumer Product Safety Commission (4).
Members, Commodity Futures Trading Commission.
Director of Nuclear Reactor Regulation, Nuclear
Regulatory Commission.
Director of Nuclear Material Safety and Safeguards,
Nuclear Regulatory Commission.
Director of Nuclear Regulatory Research, Nuclear
Regulatory Commission.
Executive Director for Operations, Nuclear
Regulatory Commission.
President, Government National Mortgage
Association, Department of Housing and Urban
Development.
Assistant Secretary of Commerce for Oceans and
Atmosphere, the incumbent of which also serves as
Deputy Administrator of the National Oceanic and
Atmospheric Administration.
Commissioner of Immigration and Naturalization,
Department of Justice.
Director, Bureau of Prisons, Department of Justice.
Assistant Secretaries of Energy (6).
General Counsel of the Department of Energy.
Administrator, Economic Regulatory Administration,
Department of Energy.
Administrator, Energy Information Administration,
Department of Energy.
Inspector General, Department of Energy.
Director, Office of Science, Department of Energy.
Assistant Secretary of Labor for Mine Safety and
Health.
Members, Federal Mine Safety and Health Review
Commission.
President, National Consumer Cooperative Bank.
Inspector General, Department of Health and Human
Services.
Inspector General, Department of Agriculture.
Special Counsel of the Merit Systems Protection
Board.
Inspector General, Department of Housing and Urban
Development.
Chairman, Federal Labor Relations Authority.
Inspector General, Department of Labor.
Inspector General, Department of Transportation.
Inspector General, Department of Veterans Affairs.
Deputy Director, Institute for Scientific and
Technological Cooperation.
Director of the National Institute of Justice.
Director of the Bureau of Justice Statistics.
Chief Counsel for Advocacy, Small Business
Administration.
Inspector General, Department of Defense.
Assistant Administrator for Toxic Substances,
Environmental Protection Agency.
Assistant Administrator, Office of Solid Waste,
Environmental Protection Agency.
Assistant Administrators, Environmental Protection
Agency (8).
Director of Operational Test and Evaluation,
Department of Defense.
Special Representatives of the President for arms
control, nonproliferation, and disarmament matters,
Department of State.
Administrator of the Health Care Financing
Administration.
Director, National Institute of Standards and
Technology, Department of Commerce.
Inspector General, Department of State.
Director of Defense Research and Engineering.
Ambassadors at Large.
Commissioner, National Center for Education
Statistics.
Assistant Secretary of Commerce and Director
General of the United States and Foreign Commercial
Service.
Inspector General, Department of Commerce.
Inspector General, Department of the Interior.
Inspector General, Department of Justice.
Inspector General, Department of the Treasury.
Inspector General, Agency for International
Development.
Inspector General, Environmental Protection Agency.
Inspector General, Federal Emergency Management
Agency.
Inspector General, General Services Administration.
Inspector General, National Aeronautics and Space
Administration.
Inspector General, Nuclear Regulatory Commission.
Inspector General, Office of Personnel Management.
Inspector General, Railroad Retirement Board.
Inspector General, Small Business Administration.
Inspector General, Tennessee Valley Authority.
Inspector General, Federal Deposit Insurance Corporation.
\1\
---------------------------------------------------------------------------
\1\ Margin so in law. Probably should be moved 2 ems to the right.
---------------------------------------------------------------------------
Assistant Secretaries, Department of Veterans
Affairs (6).
General Counsel, Department of Veterans Affairs.
Commissioner of Food and Drugs, Department of
Health and Human Services.
Chairman, Board of Veterans' Appeals.
Administrator, Office of Juvenile Justice and
Delinquency Prevention.
Director, United States Marshals Service.
Inspector General, Resolution Trust Corporation.
Chairman, United States Parole Commission.
Chief Financial Officer, Department of Agriculture.
Chief Financial Officer, Department of Commerce.
Chief Financial Officer, Department of Education.
Chief Financial Officer, Department of Energy.
Chief Financial Officer, Department of Health and
Human Services.
Chief Financial Officer, Department of Housing and
Urban Development.
Chief Financial Officer, Department of Interior.
Chief Financial Officer, Department of Justice.
Chief Financial Officer, Department of Labor.
Chief Financial Officer, Department of State.
Chief Financial Officer, Department of
Transportation.
Chief Financial Officer, Department of Treasury.
Chief Financial Officer, Department of Veterans
Affairs.
Chief Financial Officer, Environmental Protection
agency.
Chief Financial Officer, National Aeronautics and
Space Administration.
Director, Bureau of the Census, Department of
Commerce.
Director of the Institute of Museum and Library
Services.
20 Assistant Secretaries of State \1\ and 4 other
State Department officials to be appointed by the
President, by and with the advice and consent of the
Senate.
---------------------------------------------------------------------------
\1\ Section 2305(b)(2) of Public Law 105-277 (105 Stat. 2681-825)
made the following amendment which could not be executed:
---------------------------------------------------------------------------
(2) Conforming amendment to title 5.--Section 5315
of title 5, United States Code, is amended by striking
``Assistant Secretaries of State (20)'' and inserting
``Assistant Secretaries of State (24)''.
Commissioner, Office of Navajo and Hopi Indian
Relocation.
Inspector General, Central Intelligence Agency \2\
---------------------------------------------------------------------------
\2\ So in law. Probably should end with a period.
---------------------------------------------------------------------------
Deputy Under Secretary of Defense for Policy.
General Counsel of the Department of the Army.
General Counsel of the Department of the Navy.
General Counsel of the Department of the Air Force.
Liaison for Community and Junior Colleges, Department
of Education.
Director of the Office of Educational Technology.
Director of the International Broadcasting Bureau.
Inspector General, Social Security Administration.
The Commissioner of Labor Statistics, Department of
Labor.
Administrator, Rural Utilities Service, Department
of Agriculture.
Chief Information Officer, Department of
Agriculture.
Chief Information Officer, Department of Commerce.
Chief Information Officer, Department of Defense
(unless the official designated as the Chief
Information Officer of the Department of Defense is an
official listed under section 5312, 5313, or 5314 of
this title).
Chief Information Officer, Department of Education.
Chief Information Officer, Department of Energy.
Chief Information Officer, Department of Health and
Human Services.
Chief Information Officer, Department of Housing
and Urban Development.
Chief Information Officer, Department of the
Interior.
Chief Information Officer, Department of Justice.
Chief Information Officer, Department of Labor.
Chief Information Officer, Department of State.
Chief Information Officer, Department of
Transportation.
Chief Information Officer, Department of the
Treasury.
Chief Information Officer, Department of Veterans
Affairs.
Chief Information Officer, Environmental Protection
Agency.
Chief Information Officer, National Aeronautics and
Space Administration.
Chief Information Officer, Agency for International
Development.
Chief Information Officer, Federal Emergency
Management Agency.
Chief Information Officer, General Services
Administration.
Chief Information Officer, National Science
Foundation.
Chief Information Officer, Nuclear Regulatory
Agency.
Chief Information Officer, Office of Personnel
Management.
Chief Information Officer, Small Business
Administration.
Executive Director of the Alternative Agricultural
Research and Commercialization Corporation.
Assistant Directors of Central Intelligence (3).
General Counsel of the Central Intelligence Agency.
Deputy Administrators of the National Nuclear
Security Administration (3), but if the Deputy
Administrator for Naval Reactors is an officer of the
Navy on active duty, (2).
Deputy Under Secretary of Commerce for Intellectual
Property and Deputy Director of the United States
Patent and Trademark Office.
Sec. 5316. Positions at level V
Level V of the Executive Schedule applies to the following
positions, for which the annual rate of basic pay shall be the
rate determined with respect to such level under chapter 11 of
title 2, as adjusted by section 5318 of this title:
Administrator, Bonneville Power Administration,
Department of the Interior.
Administrator of the National Capital
Transportation Agency.
Associate Administrators of the Small Business
Administration (4).
Associate Administrators, National Aeronautics and
Space Administration (7).
Associate Deputy Administrator, National
Aeronautics and Space Administration.
Deputy Associate Administrator, National
Aeronautics and Space Administration.
Archivist of the United States.
Assistant Secretary of Health and Human Services
for Administration.
Assistant Attorney General for Administration.
Assistant and Science Adviser to the Secretary of
the Interior.
Chairman, Foreign Claims Settlement Commission of
the United States, Department of Justice.
Assistant to the Secretary of Defense for Nuclear
and Chemical and Biological Defense Programs,
Department of Defense.
Chairman of the Renegotiation Board.
Chairman of the Subversive Activities Control
Board.
Chief Counsel for the Internal Revenue Service,
Department of the Treasury.
Additional officers, Department of Education
(4).\1\
---------------------------------------------------------------------------
\1\ Section 2(b)(2) of Public Law 102-359 instructed to strike
``Additional Officers, Department of Education (4)''. The amendment
probably should not have capitalized the word ``Officers''.
---------------------------------------------------------------------------
Commissioner, Federal Supply Service, General
Services Administration.
Director, United States Fish and Wildlife Service,
Department of the Interior.
Commissioner of Indian Affairs, Department of the
Interior.
Commissioners, Indian Claims Commission (5).
Commissioner, Public Buildings Service, General
Services Administration.
Commissioner of Reclamation, Department of the
Interior.
Commissioner of Vocational Rehabilitation,
Department of Health and Human Services.
Commissioner of Welfare, Department of Health and
Human Services.
Director, Defense Advanced Research Projects
Agency, Department of Defense.
Director, Bureau of Mines, Department of the
Interior.
Director, Geological Survey, Department of the
Interior.
Deputy Commissioner of Internal Revenue, Department
of the Treasury.
Deputy General Counsel, Department of Defense.
Associate Director of the Federal Mediation and
Conciliation Service.
Associate Director for Volunteers, Peace Corps.
Associate Director for Program Development and
Operations, Peace Corps.
Assistants to the Director of the Federal Bureau of
Investigation, Department of Justice (2).
Assistant Directors, Office of Emergency Planning
(3).
Fiscal Assistant Secretary of the Treasury.
General Counsel of the Agency for International
Development.
General Counsel of the Nuclear Regulatory
Commission.
General Counsel of the National Aeronautics and
Space Administration.
Manpower Administrator, Department of Labor.
Members, Renegotiation Board.
Members, Subversive Activities Control Board.
Deputy Under Secretaries of Defense for Research
and Engineering, Department of Defense (4).
Assistant Administrator of General Services.
Director, United States Travel Service, Department
of Commerce.
Administrator, Wage and Hour and Public Contracts
Division, Department of Labor.
Assistant Director (Program Planning, Analysis and
Research), Office of Economic Opportunity.
Deputy Director, National Security Agency.
Director, Bureau of Land Management, Department of
the Interior.
Director, National Park Service, Department of the
Interior.
National Export Expansion Coordinator, Department
of Commerce.
Special Assistant to the Secretary of Defense.
Staff Director, Commission on Civil Rights.
Assistant Secretary for Administration, Department
of Transportation.
Director, United States National Museum,
Smithsonian Institution.
Director, Smithsonian Astrophysical Observatory,
Smithsonian Institution.
Administrator of the Environmental Science Services
Administration.
Associate Directors of the Office of Personnel
Management (5).
Assistant Federal Highway Administrator.
Deputy Administrator of the National Highway
Traffic Safety Administration.
Deputy Administrator of the Federal Motor Carrier
Safety Administration.
Assistant Federal Motor Carrier Safety
Administrator.
Director, Bureau of Narcotics and Dangerous Drugs,
Department of Justice.
Vice Presidents, Overseas Private Investment
Corporation (3).
Deputy Administrator, Federal Transit
Administration, Department of Transportation.
General Counsel of the Equal Employment Opportunity
Commission.
Executive Director, Advisory Council on Historic
Preservation.
Additional Officers, Department of Energy (14).
General Counsel, Commodity Futures Trading
Commission.
Additional officers, Nuclear Regulatory Commission
(5).
Executive Director, Commodity Futures Trading
Commission.
Assistant Administrator for Coastal Zone
Management, National Oceanic and Atmospheric
Administration.
Assistant Administrator for Fisheries, National
Oceanic and Atmospheric Administration.
Assistant Administrators (3), National Oceanic and
Atmospheric Administration.
General Counsel, National Oceanic and Atmospheric
Administration.
Members, Federal Labor Relations Authority (2) and
its General Counsel.
Additional officers, Institute for Scientific and
Technological Cooperation (2).
Additional officers, Office of Management and
Budget (6).
Associate Deputy Secretary, Department of
Transportation.
Chief Scientist, National Oceanic and Atmospheric
Administration.
Director, Indian Health Service, Department of
Health and Human Services.
Commissioners, United States Parole Commission (8).
Commissioner, Administration on Children, Youth,
and Families.
Director, Bureau of Transportation Statistics.
Sec. 5317. Presidential authority to place positions at levels IV and
V
In addition to the positions listed in sections 5315 and
5316 of this title, the President, from time to time, may place
in levels IV and V of the Executive Schedule positions held by
not to exceed 34 individuals when he considers that action
necessary to reflect changes in organization, management
responsibilities, or workload in an Executive agency. Such an
action with respect to a position to which appointment is made
by the President by and with the advice and consent of the
Senate is effective only at the time of a new appointment to
the position. Notice of each action taken under this section
shall be published in the Federal Register, except when the
President determines that the publication would be contrary to
the interest of national security. The President may not take
action under this section with respect to a position the pay
for which is fixed at a specific rate by this subchapter or by
statute enacted after August 14, 1964.
NOTE:
executive level i positions authorized by statutes other than 5 u.s.c.
5312
President and other officers, U.S. Institute for Peace, NTE level I
(P.L. 98-525, sec. 1707(a); 78 Stat. 2656)
Postmaster General, NTE level I (39 U.S.C. 1003(a); P.L. 91-375, sec.
2; 84 Stat. 730)
executive level ii positions authorized by statutes other than 5 u.s.c.
5313
Chiefs of Mission, Class 1 (22 U.S.C. 3961; P.L. 96-465, sec. 401(a);
94 Stat. 2087)
Chairman, Administrative Conference of U.S. (5 U.S.C. 573(b)(1))
(established at highest level of Chairman of an independent
regulatory commission)
Chairman, Council on Environmental Quality (P.L. 91-190, sec. 206; 83
Stat. 856)
Director, FBI, Department of Justice (P.L. 90-351, sec. 1101,
effectively superseded 5 U.S.C. 5314; 82 Stat. 236)
Director, Office of Science and Technology Policy (P.L. 94-282, sec.
203; 90 Stat. 463)
Director, U.S. Information Agency (Reorg. Plan 2 of 1977, sec. 2; 91
Stat. 1636)
25 positions NTE level II, White House Office (3 U.S.C. 105(a)(2)(A);
P.L. 95-570, sec. 1(a); 92 Stat. 2445)
5 positions NTE level II, Assistance and Services for the Vice
President (3 U.S.C. 106(a)(1)(A); P.L. 95-570, sec. 1(a); 92 Stat.
2447)
Director, U.S. International Development Cooperation Agency (Reorg.
Plan 2 of 1979, sec. 2; 93 Stat. 1378)
Deputy Secretary of Commerce (Reorg. Plan 3 of 1979, sec. 2(b)(1); 93
Stat. 1382)
Chairman, National Critical Materials Council, Executive Office of the
President, NTE level II (P.L. 98-373, sec. 207(a); 98 Stat. 1252)
Unspecified number of positions for Assistance to the President for
Unanticipated Needs, NTE level II (3 U.S.C. 108(c); P.L. 95-570,
sec. 2(a); 92 Stat. 2449)
Ambassador to United Nations (NTE level II) (P.L. 96-465, sec. 2206(a);
94 Stat. 2160; 22 U.S.C.287(g))
Director, Federal Emergency Management Agency (Reorganization Plan 3 of
1978; 92 Stat. 3788)
executive level iii positions authorized by statutes other than 5
u.s.c. 5314
Chiefs of Mission, Class 2 (22 U.S.C. 3961; P.L. 96-465, sec. 401(a);
94 Stat. 2087)
Director, ACTION (P.L. 93-113, sec. 401; 87 stat. 405)
Federal Co-Chairman, Appalachian Regional Commission (P.L. 94-188, sec.
104; 89 Stat. 1080)
Associate Directors (4), Office of Science and Technology Policy, NTE
level III (P.L. 94-282, sec. 203; 90 Stat. 463)
Administrator, Drug Enforcement Administration (Reorg. Plan 2 of 1973,
sec. 5(a); 87 Stat. 1092)
Deputy Director, U.S. Information Agency (Reorg. Plan 2 of 1977, sec.
3; 91 Stat. 1636)
25 positions NTE level III, White House Office (3 U.S.C. 105(a)(2)(B);
P.L. 95-570, sec. 1(a); 92 Stat. 2445)
6 positions NTE level III, Domestic Policy Staff, White House (3 U.S.C.
107(a)(1)(A); P.L. 95-570, sec. 2(a); 92 Stat. 2448)
3 positions NTE level III, Assistance and Services for the Vice
President (3 U.S.C. 106(a)(1)(B); P.L. 95-570, sec. 1(a); 92 Stat.
2447)
5 positions NTE level III, Office of Administration, White House (3
U.S.C. 107(b)(1)(A)(i); P.L. 95-570, sec. 2(a); 92 Stat. 2448)
Deputy Director, U.S. International Development Cooperation Agency
(Reorg. Plan 2 of 1979, sec. 3; 93 Stat. 1379)
Members (2), National Critical Materials Council, Executive Office of
the President (P.L. 98-373, sec. 207(a); 98 Stat. 1252)
Executive Director, National Critical Materials Council, Executive
Office of the President (P.L. 98-373, sec. 208(a); 98 Stat. 1253)
Federal Inspector, Office of the Federal Inspector for Alaska Natural
Gas Transportation System (Reorganization Plan 1 of 1979; 93 Stat.
1373)
Under Secretary of Commerce for International Trade (Reorganization
Plan 3 of 1979; 93 Stat. 1382)
Chairman, Farm Credit Administration Board (P.L. 99-205; 99 Stat. 1689;
12 U.S.C. 2242)
Special Assistant to the President for Agricultural Trade and Food Aid,
Executive Office of the President (P.L. 99-260, sec. 4(d); 100
Stat. 49)
Member (1), Farm Credit System Assistance Board (WAE, NTE level III)
(P.L. 100-233; 101 Stat. 1586; 12 U.S.C. 2278a-2)
President, James Madison Memorial Fellowship Foundation (NTE level III)
(P.L. 101-208; 103 Stat. 1836)
executive level iv positions authorized by statutes other than 5 u.s.c.
5315
Chiefs of Mission, Class 3 (22 U.S.C. 3961; P.L. 96-465, sec. 401(a);
94 Stat. 2087)
Members (2), Council on Environmental Quality (P.L. 91-190, sec. 206;
83 Stat. 856)
Directors (8), Overseas Private Investment Corporation (WAE) (P.L. 91-
175, sec. 105; 83 Stat. 811)
Chairman, International Joint Commission, U.S. and Canada (State Dept.)
(by Presidential memorandum of 4/3/86, under 22 U.S.C. 268,
pursuant to treaty of 1/11/09)
Deputy Director, ACTION (P.L. 93-113, sec. 401; 87 Stat. 405)
Associate Directors (2), U.S. International Development Cooperation
Agency (Reorg. Plan 2 of 1979, sec. 4; 93 Stat. 1379)
Commissioners (8), Commission on Civil Rights (WAE) (P.L. 98-183, sec.
4(a); 97 Stat. 1304)
Deputy Chief Medical Director, Department of Veterans Affairs (Pay set
under 5 U.S.C., ch. 53, subch. I, but may not be paid more than
level IV) (38 U.S.C. 4107(d)(3); P.L. 94-123, sec. 2(b)(3); 89
Stat. 670)
Members (6), Federal Election Commission (P.L. 93-443, sec. 208(a); 88
Stat. 1281)
Staff Director, Federal Election Commission (P.L. 93-443, sec. 208(a);
88 Stat. 1282)
Associate Directors (4), U.S. Information Agency (Reorg. Plan 2 of
1977, sec. 4; 91 Stat. 1636)
Assistant Secretary for Communications and Information, Department of
Commerce (Reorg. Plan 1 of 1977, sec. 4; 91 Stat. 1633)
Director, Office of Alcohol Fuels, Department of Energy (P.L. 96-294,
sec. 220(a); 94 Stat. 696)
Federal Cochairman, Alaska Land Use Council (P.L. 96-487, sec.
1201(e)(1); 94 Stat. 2467)
Assistant Secretary for Patents and Trademarks, Department of Commerce
(P.L. 97-366, sec. 4; 96 Stat. 1760)
U.S. Attorneys, Assistant U.S. Attorneys, and attorneys appointed under
28 U.S.C. 543, NTE level IV (28 U.S.C. 548; P.L. 98-473, sec.
1701(a); 98 Stat. 2185)
U.S. Trade Representative, NTE 20 level IV officers (P.L. 99-272, sec.
13023; 100 Stat. 307-308)
Independent Counsel(s) (WAE) (28 U.S.C. 594(b); P.L. 95-521, sec.
601(a); 92 Stat. 1870)
Director, Office of Minority Economic Impact, Department of Energy
(P.L. 95-619, sec. 611) (92 Stat. 3284)
Director, Office of Civilian Radioactive Waste Management, Department
of Energy (P.L. 97-425, sec. 304) (96 Stat. 2261)
Chairman, National Indian Gaming Commission, Department of Interior
(P.L. 100-497, sec. 5) (102 Stat. 2470)
Members (2) Cost Accounting Standards Board, Office of Federal
Procurement Policy, Office of Management and Budget (P.L. 100-679,
sec. 5) (102 Stat. 4060)
President, Inter-American Foundation (P.L. 91-175, sec. 401(l); 83
Stat. 824; 22 U.S.C. 290f(l))
Deputy Director, Federal Emergency Management Agency (Reorganization
Plan 3 of 1978; 92 Stat. 3788)
Associate Directors (2), Federal Emergency Management Agency
(Reorganization Plan 3 of 1978; 92 Stat. 3788)
Administrator, U.S. Fire Administration, Federal Emergency Management
Agency (P.L. 93-498; 15 U.S.C. 2204)
President, African Development Foundation (P.L. 96-533; 94 Stat. 3154;
22 U.S.C. 290h-5(d))
Members (2), Farm Credit Administration Board (P.L. 99-205; 99 Stat.
1689; 12 U.S.C. 2242)
Deputy Administrator, Drug Enforcement Administration, Department of
Justice (P.L. 100-690, sec. 6153(c))
Coordinator, Office of the Coordinator for International Communications
and Information Policy, Department of State (22 U.S.C. 2707(b))
Director, Office of Foreign Missions, Department of State (22 U.S.C.
4303(a))
Register of Copyrights (P.L. 101-319; 104 Stat. 290)
Executive Director, Morris K. Udall Scholarship and Excellence in
National Environmental Policy Foundation (P.L. 102- 259; 106 Stat.
80)
Members (9), Jacob Javits Fellows Program Fellowship Board (NTE level
IV) (P.L. 102-325; 106 Stat. 766)
Members, National Capital Planning Commission (P.L. 102-381; 106 Stat.
1414)
Director, Commission on National and Community Service (NTE level IV)
(P.L. 102-384; 106 Stat. 1457)
United States Executive Directors (8), International Bank for
Reconstruction and Development, Inter-American Development Bank,
Asian Development Bank, Asian Development Fund, African Development
Bank, African Development Fund, International Monetary Fund, and
European Bank for Reconstruction and Development (NTE level IV)
(P.L. 102-391, sec. 572; 106 Stat. 1683)
executive level v positions authorized by statutes other than 5 u.s.c.
5316
Chiefs of Missions Class 4 (22 U.S.C. 3961; P.L. 96-465, sec. 401(a);
94 Stat. 2087)
Executive Director, Advisory Commission on Intergovernmental Relations,
NTE level V (P.L. 89-733, sec. 4; 80 Stat. 1162)
Members (3), Postal Service Advisory Council (WAE) (39 U.S.C. 206(c);
P.L. 91-375; 84 Stat. 722)
Commissioners (2), International Joint Commission, U.S. and Canada
(WAE) (fixed by Pres. Memos of 10/4/68 and 3/2/70, pursuant to 22
U.S.C. 268)
Assoc. Director for Domestic and Anti-Poverty Operations, ACTION (P.L.
98-288, sec. 17(2); 98 Stat. 194)
Members (9), Board for International Broadcasting (WAE) (P.L. 93-129,
sec. 3(b)(5); 87 Stat. 458)
Alternate to Federal Co-Chairman, Appalachian Regional Commission (P.L.
94-188, sec. 104; 89 Stat. 1080)
General Counsel, Federal Election Commission (P.L. 93-443, sec. 208(a);
88 Stat. 1282)
Members (9), Advisory Board for Radio Broadcasting to Cuba (WAE) (P.L.
98-111, sec. 5(e); 97 Stat. 751)
Director, Office of Surface Mining, Reclamation and Enforcement,
Department of Interior (P.L. 95-240) (92 Stat. 109)
Members (2) National Indian Gaming Commission, Department of Interior
(P.L. 100-497, sec. 5) (102 Stat. 2470)
Associate Director, Federal Emergency Management Agency (Reorganization
Plan 3 of 1978; 92 Stat. 3788)
Director, National Institute of Handicapped Research, Department of
Education (P.L. 95-602 and 96-88; 20 U.S.C. 3441)
Commissioners (3), Copyright Royalty Tribunal (P.L. 101-319; 104 Stat.
290)
Members (9), Panama Canal Commission (P.L. 101-510; 104 Stat. 1846; 22
U.S.C. 3612)
Executive Secretary, Christopher Columbus Fellowship Foundation (P.L.
102-281; 106 Stat. 144)
Employees (2), Commission on National and Community Service (NTE level
V) (P.L. 102-384; 106 Stat. 1457)
Alternate United States Executive Directors (8), International Bank for
Reconstruction and Development, Inter-American Development Bank,
Asian Development Bank, Asian Development Fund, African Development
Bank, African Development Fund, International Monetary Fund, and
European Bank for Reconstruction and Development (P.L. 102-391,
sec. 572; 106 Stat. 1683).
Special Counsel, Financial Institutions Fraud Unit, Department of
Justice (P.L. 101-647, sec. 2537(c); terminates on Nov. 29, 1995)
positions placed in levels iv and v by the president under 5 u.s.c.
5317 (e.o. 12154, september 4, 1979)
Level IV
Counselor to the Secretary, Department of the Treasury (E.O. 12236, 9/
3/80)
Deputy Under Secretary for International Labor Affairs, Department of
Labor
Administrator, Substance Abuse and Mental Health Services
Administration, Department of Health and Human Services
Executive Secretary of the National Security Council (E.O. 12422, 5/20/
83)
Comptroller of the Department of Defense. (E.O. 12678, 4/28/89).
Assistant Secretary of the Air Force (1). (E.O. 12679, 6/23/89).
Director, Office for Victims of Crime, Department of Justice. (E.O.
12749, 2/4/91).
Director, Bureau of Justice Assistance, Department of Justice. (E.O.
12749, 2/4/91).
Director of the National Institutes of Health. (E.O. 12758, 4/5/91).
Members, Chemical Safety and Hazard Investigation Board (5). (E.O.
12814, 9/10/92).
Commissioner on Aging, Department of Health and Human Services (E.O.
12841, 3/9/93)
Level V
Deputy Assistant Secretary of Defense for Reserve Affairs, Department
of Defense
Executive Director, Pension Benefit Guaranty Corporation, Department of
Labor
Executive Assistant and Counselor to the Secretary, Department of Labor
Deputy Under Secretary for Education, Department of Education (E.O.
12237, September 3, 1980)
Sec. 5318. Adjustments in rates of pay
(a) Subject to subsection (b), effective at the beginning
of the first applicable pay period commencing on or after the
first day of the month in which an adjustment takes effect
under section 5303 of this title in the rates of pay under the
General Schedule, the annual rate of pay for positions at each
level of the Executive Schedule shall be adjusted by an amount,
rounded to the nearest multiple of $100 (or if midway between
multiples of $100, to the next higher multiple of $100), equal
to the percentage of such annual rate of pay which corresponds
to the most recent percentage change in the ECI (relative to
the date described in the next sentence), as determined under
section 704(a)(1) of the Ethics Reform Act of 1989.\1\ The
appropriate date under this sentence is the first day of the
fiscal year in which such adjustment in the rates of pay under
the General Schedule takes effect.
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\1\ Section 704(a)(1) of the Ethics Reform Act of 1989 (Public Law
101-194; 103 Stat. 1716) provides as follows:
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SEC. 704. REVISION IN METHOD BY WHICH ANNUAL PAY ADJUSTMENTS FOR
CERTAIN EXECUTIVE, LEGISLATIVE, AND JUDICIAL POSITIONS ARE TO
BE MADE.
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(a) Percent Change in the Employment Cost Index.--
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(1) Method for computing percent change in the eci.--
(A) Definitions.--For purposes of this paragraph--
(i) the term ``Employment Cost Index'' or
``ECI'' means the Employment Cost Index (wages
and salaries, private industry workers)
published quarterly by the Bureau of Labor
Statistics; and
(ii) the term ``base quarter'' means the 3-
month period ending on December 31 of a year.
(B) Method.--For purposes of the provisions of law
amended by paragraph (2), the ``most recent percentage
change in the ECI'', as of any date, shall be one-half
of 1 percent less than the percentage (rounded to the
nearest one-tenth of 1 percent) derived by--
(i) reducing--
(I) the ECI for the last base quarter
prior to that date, by
(II) the ECI for the second to last base
quarter prior to that date,
(ii) dividing the difference under clause (i)
by the ECI for the base quarter referred to in
clause (i)(II), and
(iii) multiplying the quotient under clause
(ii) by 100,
except that no percentage change determined under this
paragraph shall be--
(I) less than zero; or
(II) greater than 5 percent.
(b) In no event shall the percentage adjustment taking
effect under subsection (a) in any calendar year (before
rounding), in any rate of pay, exceed the percentage adjustment
taking effect in such calendar year under section 5303 in the
rates of pay under the General Schedule.
ORGANIC STATUTE FOR THE CITIZENS' COMMISSION ON PUBLIC SERVICE AND
COMPENSATION
(Section 225 of Public Law 90-206 (81 Stat. 613, 642), as amended
by section 6(a) of Public Law 91-375 (84 Stat. 719, 775), section
206(a) of Public Law 94-82 (89 Stat. 419, 423), section 401 of Public
Law 95-19 (91 Stat. 39, 45), section 301 of Public Law 95-598 (92 Stat.
2549, 2688), section 143 of Public Law 97-164 (96 Stat. 45), section
135 of Public Law 99-190, section 101(a) of Public Law 100-202, and
section 701 of Public Law 101-194.)
citizens' commission on public service and compensation
Sec. 225. (a) Establishment of Commission.--There is hereby
established a commission to be known as the Citizens' Commission on
Public Service and Compensation. (hereinafter referred to as the
``Commission'').
(b) Membership.--
(1) The Commission shall be composed of 11 members, who
shall be appointed from private life as follows:
(A) 2 appointed by the President of the United
States;
(B) 1 appointed by the President pro tempore of the
Senate, upon the recommendation of the majority and
minority leaders of the Senate;
(C) 1 appointed by the Speaker of the House of
Representatives;
(D) 2 appointed by the Chief Justice of the United
States; and
(E) 5 appointed by the Administrator of General
Services in accordance with paragraph (4).
(2) No person shall serve as a member of the Commission who
is--
(A) an officer or employee of the Federal
Government;
(B) registered (or required to register) under the
Federal Regulation of Lobbying Act; or
(C) a parent, sibling, spouse, child, or dependent
relative, of anyone under subparagraph (A) or (B).
(3) The persons appointed under subparagraphs (A) through
(D) of paragraph (1) shall be selected without regard to
political affiliation, and should be selected from among
persons who have experience or expertise in such areas as
government, personnel management, or public administration.
(4) The Administrator of General Services shall by
regulation establish procedures under which persons shall be
selected for appointment under paragraph (1)(E). Such
procedures--
(A) shall be designed in such a way so as to
provide for the maximum degree of geographic diversity
practicable among members under paragraph (1)(E);
(B) shall include provisions under which those
members shall be chosen by lot from among names
randomly selected from voter registration lists; and
(C) shall otherwise comply with applicable
provisions of this subsection.
(5) The chairperson shall be designated by the President.
(6) A vacancy in the membership of the Commission shall be
filled in the manner in which the original appointment was
made.
(7) Each member of the Commission shall be paid at the rate
of $100 for each day such member is engaged upon the work of
the Commission and shall be allowed travel expenses, including
a per diem allowance, in accordance with section 5703 of title
5, United States Code, when engaged in the performance of
services for the Commission.
(8)(A) The terms of office of persons first appointed as
members of the Commission shall be for the period of the 1993
fiscal year of the Federal Government, and shall begin not
later than February 14, 1993.
(B) After the close of the 1993 fiscal year of the Federal
Government, persons shall be appointed as members of the
Commission with respect to every fourth fiscal year following
the 1993 fiscal year. The terms of office of persons so
appointed shall be for the period of the fiscal year with
respect to which the appointment is made, except that, if any
appointment is made after the beginning and before the close of
any such fiscal year, the term of office based on such
appointment shall be the remainder of such fiscal year.
(C)(i) Notwithstanding any provision of subparagraph (A) or
(B), members of the Commission may continue to serve after the
close of a fiscal year, if the date designated by the President
under subsection (g) (relating to the date by which the
Commission is to submit its report to the President) is
subsequent to the close of such fiscal year, and only if or to
the extent necessary to allow the Commission to submit such
report.
(ii) Notwithstanding any provision of subsection (c),
authority under such subsection shall remain available, after
the close of a fiscal year, so long as members of the
Commission continue to serve.
(c) Personnel of Commission.--
(1) Without regard to the provisions of title 5, United
States Code, governing appointments in the competitive service,
and the provisions of chapter 51 and subchapter III of chapter
53 of such title, relating to classification and General
Schedule pay rates, and on a temporary basis for periods
covering all or part of any fiscal year referred to in
subparagraphs (A) and (B) of subsection (b)(8) of this
section--
(A) the Commission is authorized to appoint an
Executive Director and fix his basic pay at the rate
provided for level V of the Executive Schedule by
section 5316 of title 5, United States Code; and
(B) with the approval of the Commission, the
Executive Director is authorized to appoint and fix the
basic pay (at respective rates not in excess of the
maximum rate of the General Schedule in section 5332 of
title 5, United States Code) of such additional
personnel as may be necessary to carry out the function
of the Commission.
(2) Upon the request of the Commission, the head of any
department, agency, or establishment of any branch of the
Federal Government is authorized to detail, on a reimbursable
basis, for periods covering all or part of any fiscal year
referred to in subparagraphs (A) and (B) of subsection (b)(8)
of this section, any of the personnel of such department,
agency, or establishment to assist the Commission in carrying
out its function.
(d) Use of United States Mails by Commission.--The Commission may
use the United States mails in the same manner and upon the same
conditions as other departments and agencies of the United States.
(e) Administrative Support Services.--The Administrator of General
Services shall provide administrative support services for the
Commission on a reimbursable basis.
(f) Function.--The Commission shall conduct, in each of the
respective fiscal years referred to in subparagraphs (A) and (B) of
subsection (b)(8) of this section, a review of the rates of pay of--
(A) the Vice President of the United States, Senators,
Members of the House of Representatives, the Resident
Commissioner from Puerto Rico, the Speaker of the House of
Representatives, the President pro tempore of the Senate, and
the majority and minority leaders of the Senate and the House
of Representatives;
(B) offices and positions in the legislative branch
referred to in subsections (a), (b), (c), and (d) \1\ of
section 203 of the Federal Legislative Salary Act of 1964 (78
Stat. 415; Public Law 88-426);
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\1\ Positions covered by these subsections are: the Comptroller
General of the United States and Deputy Comptroller General; the
General Counsel, GAO; the Librarian and Deputy Librarian of Congress,
and the Architect and Assistant Architect of the Capitol.
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(C) justices, judges, and other personnel in the judicial
branch referred to in section 403 of the Federal Judicial
Salary Act of 1964 (78 Stat. 434; Public Law 88-426); except
bankruptcy judges, but including the judges of the United
States Claims Court;\2\
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\2\ Positions covered by this subparagraph are: the Chief Justice
of the United States and Associate Justices; circuit judges; district
judges; judges of Court of Claims and the Court of Customs and Patent
Appeals (now replaced by judges of the United States Court of Appeals
for the Federal Circuit); judges of the Customs Court; the Director and
the Deputy Director of the Administrative Office of the United States
Courts; Commissioners of the Court of Claims (now known as judges of
the United States Claims Court), and judges of the Tax Court and of the
Court of Military Appeals.
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(D) offices and positions under the Executive Schedule in
subchapter II of chapter 53 of title 5, United States Code; and
(E) the Governors of the Board of Governors of the United
States Postal Service appointed under section 202 of title 39,
United States Code.
Such review by the Commission shall be made for the purpose of
determining and providing--
(i) the appropriate pay levels and relationships between
and among the respective offices and positions covered by such
review, and
(ii) the appropriate pay relationships between such offices
and positions and the offices and positions subject to the
provisions of chapter 51 and subchapter III of chapter 53 of
title 5, United States Code, relating to classification and
General Schedule pay rates.
In reviewing the rates of pay of the offices or positions referred to
in subparagraph (D) of this subsection, the Commission shall determine
and consider the appropriateness of the executive levels of such
offices and positions.
(g) Report by Commission to the President with Respect to Pay.--The
Commission shall submit to the President a report of the results of
each review conducted by the Commission with respect to rates of pay
for, purview of subparagraphs (A), (B), (C), and (D) of subsection (f)
of this section, together with the recommendations. Each such report
shall be submitted on such date and the President may designate but not
later than December 15 next following the close of the fiscal year in
which the review is conducted by the Commission.
(h) Recommendations of the President With Respect to Pay.--
(1) After considering the report and recommendations of the
Commission submitted under subsection (g), the President shall
transmit to Congress his recommendations with respect to the
exact rates of pay, the offices and positions within the
purview of subparagraphs (A), (B), (C), and (D) of subsection
(f), which the President considers to be fair and reasonable in
light of the Commission's report and recommendations, the
prevailing market value of the services rendered in the offices
and positions involved, the overall economic condition of the
country, and the fiscal condition of the Federal Government.
(2) The President shall transmit his recommendations under
this subsection to Congress on the first Monday after January 3
of the first calendar year beginning after the date on which
the Commission submits its report and recommendations to the
President under subsection (g).
(i) Effective Date of Recommendations of the President.--
(1) None of the President's recommendations under
subsection (h) shall take effect unless approved under
paragraph (2).
(2)(A) The recommendations of the President under
subsection (h) shall be considered approved under this
paragraph if there is enacted into law a bill or joint
resolution approving such recommendations in their entirety.
This bill or joint resolution shall be passed by recorded vote
to reflect the vote of each Member of Congress thereon.
(B)(i) The provisions of this subparagraph are enacted by
the Congress--
(I) as an exercise of the rulemaking power of the
Senate and the House of Representatives and as such
shall be considered as part of the rules of each House,
and shall supersede other rules only to the extent that
they are inconsistent therewith; and
(II) with full recognition of the constitutional
right of either House to change the rules (so far as
they relate to the procedures of that House) at any
time, in the same manner, and to the same extent as in
the case of any other rule of that House.
(ii) During the 60-calendar-day period beginning on the
date that the President transmits his recommendations to the
Congress under subsection (h), it shall be in order as a matter
of highest privilege in each House of Congress to consider a
bill or joint resolution, if offered by the majority leader of
such House (or a designee), approving such recommendations in
their entirety.
(3) Except as provided in paragraph (4), any recommended
pay adjustment approved under paragraph (2) shall take effect
as of the date proposed by the President under subsection (h)
with respect to such adjustment.
(4)(A) Notwithstanding the approval of the President's pay
recommendations in accordance with paragraph (2), none of those
recommendations shall take effect unless, between the date on
which the bill or resolution approving those recommendations is
signed by the President (or otherwise becomes law) and the
earliest date as of which the President proposes (under
subsection (h)) that any of those recommendations take effect,
an election of Representatives shall have intervened.
(B) For purposes of this paragraph, the term ``election of
Representatives'' means an election held on the Tuesday
following the first Monday of November in any even-numbered
calendar year.
(j) Effect of Recommendations of the President on Existing Law and
Prior Presidential Recommendations.--The recommendations of the
President taking effect as provided in subsection (i) of this section
shall \1\ be held and considered to modify, supersede, or render
inapplicable, as the case may be, to the extent inconsistent
therewith--
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\1\ Error exists in amendment to subsection (j), made by
Sec. 135(f) of Public Law 99-190. Executed according to probable
intent.
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(A) all provisions of law enacted prior to the effective
date or dates of all or part (as the case may be) of such
recommendations, (other than any provision of law enacted with
respect to such recommendations in the period beginning on the
date the President transmits his recommendations to the
Congress under subsection (h) and ending on the date of their
approval under subsection (i)(2)), and
(B) any prior recommendations of the President which take
effect under this section.
(k) Publication of Recommendations of the President.--The
recommendations of the President which take effect shall be printed in
the Statutes at Large in the same volume as public laws and shall be
printed in the Federal Register and included in the Code of Federal
Regulations.
(l) Requirements Applicable to Recommendations.--Notwithstanding
any other provision of this section, the recommendations submitted by
the Commission to the President under subsection (g) and the
recommendations transmitted by the President to the Congress under
subsection (h), shall be in conformance with the following:
(1) Any recommended pay adjustment shall specify the date
as of which it is proposed that such adjustment take effect.
(2) The proposed effective date of a pay adjustment may
occur no earlier than January 1 of the second fiscal year, and
no later than December 31 next following the close of the fifth
fiscal year, beginning after the fiscal year in which the
Commission conducts its review under subsection (f).
(3)(A)(i) The rates of pay recommended for the Speaker of
the House of Representatives, the Vice President of the United
States, and the Chief Justice of the United States,
respectively, shall be equal.
(ii) The rates of pay recommended for the majority and
minority leaders of the Senate and the House of
Representatives, the President pro tempore of the Senate, and
each office or position under section 5312 of title 5, United
States Code (relating to level I of the Executive Schedule),
respectively shall be equal.
(iii) The rates of pay recommended for a Senator, a Member
of the House of Representatives, the Resident Commissioner from
Puerto Rico, a Delegate to the House of Representatives, a
judge of a district court of the United States, a judge of the
United States Court of International Trade, and each office or
position under section 5313 of title 5, United States Code
(relating to level II of the Executive Schedule,) respectively,
shall be equal.
(B) Nothing in this subsection shall be considered to
require that the rate recommended for any office or position by
the President under subsection (h) be the same as the rate
recommended for such office or position by the Commission under
subsection (g).
(m) Additional Function.--The Commission shall, whenever it
conducts a review under subsection (f), also conduct a review under the
subsection relating to any recruitment or retention problems, and any
public policy issues involved in maintaining appropriate ethical
standards, with respect to any offices or positions within the Federal
public service. Any findings or recommendations under this subsection
shall be included, by the Commission as part of its report to the
President under subsection (g).
(n) Provision Relating to Certain Other Pay Adjustments.--
(1) A provision of law increasing the rate of pay payable
for an office or position within the purview of subparagraph
(A), (B), (C), or (D) of subsection (f) shall not take effect
before the beginning of the Congress following the Congress
during which such provision is enacted.
(2) For purposes of this subsection, a provision of law
enacted during the period beginning on the Tuesday following
the first Monday of November of an even-numbered year of any
Congress and ending at noon on the following January 3 shall be
considered to have been enacted during the first session of the
following Congress.
(3) Nothing in this subsection shall be considered to apply
with respect to any pay increase--
(A) which takes effect under the preceding
subsections of this section;
(B) is based on a change in the Employment Cost
Index (as determined under section 704(a)(1) of the
Ethics Reform Act of 1989) or which is in lieu of any
pay adjustment which might otherwise be made in a year
based on a change in such index (as so determined); or
(C) which takes effect under section 702 or 703 of
the Ethics Reform Act of 1989.
SUBCHAPTER III--GENERAL SCHEDULE PAY RATES
Sec. 5331. Definitions; application
(a) For the purpose of this subchapter, ``agency'',
``employee'', ``position'', ``class'', and ``grade'' have the
meanings given them by section 5102 of this title.
(b) This subchapter applies to employees and positions to
which chapter 51 applies, other than Senior Executive Service
positions, positions in the Federal Bureau of Investigation and
Drug Enforcement Administration Senior Executive Service, and
positions to which section 5376 applies.
Sec. 5332. The General Schedule
(a)(1) The General Schedule, the symbol for which is
``GS'', is the basic pay schedule for positions to which this
subchapter applies. Each employee to whom this subchapter
applies is entitled to basic pay in accordance with the General
Schedule.
(2) The General Schedule is a schedule of annual rates of
basic pay, consisting of 15 grades, designated ``GS-1'' through
``GS-15'', consecutively, with 10 rates of pay for each such
grade. The rates of pay of the General Schedule are adjusted in
accordance with section 5303.
(b) When payment is made on the basis of an hourly, daily,
weekly, or biweekly rate, the rate is computed from the
appropriate annual rate of basic pay named by subsection (a) of
this section in accordance with the rules prescribed by section
5504(b) of this title.
Sec. 5333. Minimum rate for new appointments
New appointments shall be made at the minimum rate of the
appropriate grade. However, under regulations prescribed by the
Office of Personnel Management which provide for such
considerations as the existing pay or unusually high or unique
qualifications of the candidate, or a special need of the
Government for his services, the head of an agency may appoint,
with the approval of the Office in each specific case, an
individual to a position at such a rate above the minimum rate
of the appropriate grade as the Office may authorize for this
purpose. The approval of the Office in each specific case is
not required with respect to an appointment made by the
Librarian of Congress.
Sec. 5334. Rate on change of position or type of appointment;
regulations
(a) The rate of basic pay to which an employee is entitled
is governed by regulations prescribed by the Office of
Personnel Management in conformity with this subchapter and
chapter 51 of this title when--
(1) he is transferred from a position in the
legislative, judicial, or executive branch to which
this subchapter does not apply;
(2) he is transferred from a position in the
legislative, judicial, or executive branch to which
this subchapter applies to another such position;
(3) he is demoted to a position in a lower grade;
(4) he is reinstated, reappointed, or reemployed in
a position to which this subchapter applies following
service in any position in the legislative, judicial,
or executive branch;
(5) his type of appointment is changed;
(6) his employment status is otherwise changed; or
(7) his position is changed from one grade to
another grade.
For the purpose of this subsection, an individual employed by
the Appalachian Regional Commission under section 106(2) of the
Appalachian Regional Development Act of 1965 (40 U.S.C. App.),
who was a Federal employee immediately prior to such employment
by a commission and within 6 months after separation from such
employment is employed in a position to which this subchapter
applies, shall be treated as if transferred from a position in
the executive branch to which this subchapter does not apply.
(b) An employee who is promoted or transferred to a
position in a higher grade is entitled to basic pay at the
lowest rate of the higher grade which exceeds his existing rate
of basic pay by not less than two step-increases of the grade
from which he is promoted or transferred. If, in the case of an
employee so promoted or transferred who is receiving basic pay
at a rate in excess of the maximum rate of his grade, there is
no rate in the higher grade which is at least two step-
increases above his existing rate of basic pay, he is entitled
to--
(1) the maximum rate of the higher grade; or
(2) his existing rate of basic pay, if that rate is
the higher.
If an employee so promoted or transferred is receiving basic
pay at a rate saved to him under subchapter VI of this chapter
on reduction in grade, he is entitled to--
(A) basic pay at a rate two steps above the rate
which he would be receiving if subchapter VI of this
chapter were not applicable to him; or
(B) his existing rate of basic pay, if that rate is
the higher.
(c) An employee in the legislative branch who is paid by
the Secretary of the Senate or the Chief Administrative Officer
of the House of Representatives, and who has completed two or
more years of service as such an employee, and a Member of the
Senate or House of Representatives who has completed two or
more years of service as such a Member, may, on appointment to
a position to which this subchapter applies, have his initial
rate of pay fixed--
(1) at the minimum rate of the appropriate grade;
or
(2) at a step of the appropriate grade that does
not exceed the highest previous rate of pay received by
him during that service in the legislative branch.
(d) The rate of pay established for a teaching position as
defined by section 901 of title 20 held by an individual who
becomes subject to subsection (a) of this section is deemed
increased by an amount determined under regulations which the
Secretary of Defense shall prescribe for the determination of
the yearly rate of pay of the position. The amount by which a
rate of pay is increased under the regulations may not exceed
the amount equal to 20 percent of that rate of pay.
(e) An employee of a county committee established pursuant
to section 590h(b) of title 16 may, upon appointment to a
position subject to this subchapter, have his initial rate of
basic pay fixed at the minimum rate of the appropriate grade,
or at any step of such grade that does not exceed the highest
previous rate of basic pay received by him during service with
such county committee.
(f) An employee of a nonappropriated fund instrumentality
of the Department of Defense or the Coast Guard described in
section 2105(c) who moves, without a break in service of more
than 3 days, to a position in the Department of Defense or the
Coast Guard, respectively, that is subject to this subchapter,
may have such employee's initial rate of basic pay fixed at the
minimum rate of the appropriate grade or at any step of such
grade that does not exceed the highest previous rate of basic
pay received by that employee during the employee's service
described in section 2105(c). In the case of a nonappropriated
fund employee who is moved involuntarily from such
nonappropriated fund instrumentality without a break in service
of more than 3 days and without substantial change in duties to
a position that is subject to this subchapter, the employee's
pay shall be set at a rate (not above the maximum for the
grade, except as may be provided for under section 5365) that
is not less than the employee's rate of basic pay under the
nonappropriated fund instrumentality immediately prior to so
moving.
Sec. 5335. Periodic step-increases
(a) An employee paid on an annual basis, and occupying a
permanent position within the scope of the General Schedule,
who has not reached the maximum rate of pay for the grade in
which his position is placed, shall be advanced in pay
successively to the next higher rate within the grade at the
beginning of the next pay period following the completion of--
(1) each 52 calendar weeks of service in pay rates
1, 2, and 3;
(2) each 104 calendar weeks of service in pay rates
4, 5, and 6; or
(3) each 156 calendar weeks of service in pay rates
7, 8, and 9;
subject to the following conditions:
(A) the employee did not receive an equivalent
increase in pay from any cause during that period; and
(B) the work of the employee is of an acceptable
level of competence as determined by the head of the
agency.
(b) Under regulations prescribed by the Office of Personnel
Management, the benefit of successive step-increases shall be
preserved for employees whose continuous service is interrupted
in the public interest by service with the armed forces or by
service in essential non-Government civilian employment during
a period of war or national emergency.
(c) When a determination is made under subsection (a) of
this section that the work of an employee is not of an
acceptable level of competence, the employee is entitled to
prompt written notice of that determination and an opportunity
for reconsideration of the determination within his agency
under uniform procedures prescribed by the Office of Personnel
Management. If the determination is affirmed on
reconsideration, the employee is entitled to appeal to the
Merit Systems Protection Board. If the reconsideration or
appeal results in a reversal of the earlier determination, the
new determination supersedes the earlier determination and is
deemed to have been made as of the date of the earlier
determination. The authority of the Office to prescribe
procedures and the entitlement of the employee to appeal to the
Board do not apply to a determination of acceptable level of
competence made by the Librarian of Congress.
(d) An increase in pay granted by statute is not an
equivalent increase in pay within the meaning of subsection (a)
of this section.
(e) This section does not apply to the pay of an individual
appointed by the President, by and with the advice and consent
of the Senate.
(f) In computing periods of service under subsection (a) in
the case of an employee who moves without a break in service of
more than 3 days from a position under a nonappropriated fund
instrumentality of the Department of Defense or the Coast Guard
described in section 2105(c) to a position under the Department
of Defense or the Coast Guard, respectively, that is subject to
this subchapter, service under such instrumentality shall,
under regulations prescribed by the Office, be deemed service
in a position subject to this subchapter.
Sec. 5336. Additional step-increases
(a) Within the limit of available appropriations and under
regulations prescribed by the Office of Personnel Management,
the head of each agency may grant additional step-increases in
recognition of high quality performance above that ordinarily
found in the type of position concerned. However, an employee
is eligible under this section for only one additional step-
increase within any 52-week period.
(b) A step-increase under this section is in addition to
those under section 5335 of this title and is not an equivalent
increase in pay within the meaning of section 5335(a) of this
title.
(c) This section does not apply to the pay of an individual
appointed by the President, by and with the advice and consent
of the Senate.
[Sec. 5337. Repealed. Pub. L. 95-454, title VIII, Sec. 801(a)(2), Oct.
13, 1978, 92 Stat. 1221.]
Sec. 5338. Regulations
The Office of Personnel Management may prescribe
regulations necessary for the administration of this
subchapter.
SUBCHAPTER IV--PREVAILING RATE SYSTEMS
Sec. 5341. Policy
It is the policy of Congress that rates of pay of
prevailing rate employees be fixed and adjusted from time to
time as nearly as is consistent with the public interest in
accordance with prevailing rates and be based on principles
that--
(1) there will be equal pay for substantially equal
work for all prevailing rate employees who are working
under similar conditions of employment in all agencies
within the same local wage area;
(2) there will be relative differences in pay
within a local wage area when there are substantial or
recognizable differences in duties, responsibilities,
and qualification requirements among positions;
(3) the level of rates of pay will be maintained in
line with prevailing levels for comparable work within
a local wage area; and
(4) the level of rates of pay will be maintained so
as to attract and retain qualified prevailing rate
employees.
Sec. 5342. Definitions; application
(a) For the purpose of this subchapter--
(1) ``agency'' means an Executive agency; but does
not include--
(A) a Government controlled corporation;
(B) the Tennessee Valley Authority;
(C) the Alaska Railroad;
(D) the Virgin Islands Corporation;
(E) the Atomic Energy Commission;
(F) the Central Intelligence Agency;
(G) the National Security Agency,
Department of Defense;
(H) the Bureau of Engraving and Printing,
except for the purposes of section 5349 of this
title;
(I) the General Accounting Office;
(J) the Defense Intelligence Agency,
Department of Defense; or
(K) the National Imagery and Mapping
Agency, Department of Defense;
(2) ``prevailing rate employee'' means--
(A) an individual employed in or under an
agency in a recognized trade or craft, or other
skilled mechanical craft, or in an unskilled,
semiskilled, or skilled manual labor
occupation, and any other individual, including
a foreman and a supervisor, in a position
having trade, craft, or laboring experience and
knowledge as the paramount requirement;
(B) an employee of a nonappropriated fund
instrumentality described by section 2105(c) of
this title who is employed in a recognized
trade or craft, or other skilled mechanical
craft, or in an unskilled, semiskilled, or
skilled manual labor occupation, and any other
individual, including a foreman and a
supervisor, in a position having trade, craft,
or laboring experience and knowledge as the
paramount requirement; and
(C) an employee of the Veterans' Canteen
Service, Department of Veterans Affairs,
excepted from chapter 51 of this title by
section 5102(c)(14) of this title who is
employed in a recognized trade or craft, or
other skilled mechanical craft, or in an
unskilled, semiskilled, or skilled manual labor
occupation, and any other individual, including
a foreman and a supervisor, in a position
having trade, craft, or labor experience and
knowledge as the paramount requirement; and
(3) ``position'' means the work, consisting of
duties and responsibilities, assignable to a prevailing
rate employee.
(b)(1) Except as provided by paragraphs (2) and (3) of this
subsection, this subchapter applies to all prevailing rate
employees and positions in or under an agency.
(2) This subchapter does not apply to employees and
positions described by section 5102(c) of this title other than
by--
(A) paragraph (7) of that section to the extent
that such paragraph (7) applies to employees and
positions other than employees and positions of the
Bureau of Engraving and Printing; and
(B) paragraph (14) of that section.
(3) This subchapter, except section 5348, does not apply to
officers and members of crews of vessels excepted from chapter
51 of this title by section 5102(c)(8) of this title.
(c) Each prevailing rate employee employed within any of
the several States or the District of Columbia shall be a
United States citizen or a bona fide resident of one of the
several States or the District of Columbia unless the Secretary
of Labor certifies that no United States citizen or bona fide
resident of one of the several States or the District of
Columbia is available to fill the particular position.
Sec. 5343. Prevailing rate determinations; wage schedules; night
differentials
(a) The pay of prevailing rate employees shall be fixed and
adjusted from time to time as nearly as is consistent with the
public interest in accordance with prevailing rates. Subject to
section 213(f) of title 29, the rates may not be less than the
appropriate rates provided by section 206(a)(1) of title 29. To
carry out this subsection--
(1) the Office of Personnel Management shall
define, as appropriate--
(A) with respect to prevailing rate
employees other than prevailing rate employees
under paragraphs (B) and (C) of section
5342(a)(2) of this title, the boundaries of--
(i) individual local wage areas for
prevailing rate employees having
regular wage schedules and rates; and
(ii) wage areas for prevailing rate
employees having special wage schedules
and rates;
(B) with respect to prevailing rate
employees under paragraphs (B) and (C) of
section 5342(a)(2) of this title, the
boundaries of--
(i) individual local wage areas for
prevailing rate employees under such
paragraphs having regular wage
schedules and rates (but such
boundaries shall not extend beyond the
immediate locality in which the
particular prevailing rate employees
are employed); and
(ii) wage areas for prevailing rate
employees under such paragraphs having
special wage schedules and rates;
(2) the Office of Personnel Management shall
designate a lead agency for each wage area;
(3) subject to paragraph (5) of this subsection,
and subsections (c)(1)-(3) and (d) of this section, a
lead agency shall conduct wage surveys, analyze wage
survey data, and develop and establish appropriate wage
schedules and rates for prevailing rate employees;
(4) the head of each agency having prevailing rate
employees in a wage area shall apply, to the prevailing
rate employees of that agency in that area, the wage
schedules and rates established by the lead agency, or
by the Office of Personnel Management, as appropriate,
for prevailing rate employees in that area; and
(5) the Office of Personnel Management shall
establish wage schedules and rates for prevailing rate
employees who are United States citizens employed in
any area which is outside the several States, the
District of Columbia, the Commonwealth of Puerto Rico,
the territories and possessions of the United States,
and the Trust Territory of the Pacific Islands.
(b) The Office of Personnel Management shall schedule full-
scale wage surveys every 2 years and shall schedule interim
surveys to be conducted between each 2 consecutive full-scale
wage surveys. The Office may schedule more frequent surveys
when conditions so suggest.
(c) The Office of Personnel Management, by regulation,
shall prescribe practices and procedures for conducting wage
surveys, analyzing wage survey data, developing and
establishing wage schedules and rates, and administering the
prevailing rate system. The regulations shall provide--
(1) that, subject to subsection (d) of this
section, wages surveyed be those paid by private
employers in the wage area for similar work performed
by regular full-time employees, except that, for
prevailing rate employees under paragraphs (B) and (C)
of section 5342(a)(2) of this title, the wages surveyed
shall be those paid by private employers to full-time
employees in a representative number of retail,
wholesale, service, and recreational establishments
similar to those in which such prevailing rate
employees are employed;
(2) for participation at all levels by
representatives of organizations accorded recognition
as the representatives of prevailing rate employees in
every phase of providing an equitable system for fixing
and adjusting the rates of pay for prevailing rate
employees, including the planning of the surveys, the
drafting of specifications, the selection of data
collectors, the collection and the analysis of the
data, and the submission of recommendations to the head
of the lead agency for wage schedules and rates and for
special wage schedules and rates where appropriate;
(3) for requirement for the accomplishment of wage
surveys and for the development of wage schedules and
rates for prevailing rate employees, including, but not
limited to--
(A) nonsupervisory and supervisory
prevailing rate employees paid under regular
wage schedules and rates;
(B) nonsupervisory and supervisory
prevailing rate employees paid under special
wage schedules and rates; and
(C) nonsupervisory and supervisory
prevailing rate employees described under
paragraphs (B) and (C) of section 5342(a)(2) of
this title;
(4) for proper differentials, as determined by the
Office, for duty involving unusually severe working
conditions or unusually severe hazards;
(5) rules governing the administration of pay for
individual employees on appointment, transfer,
promotion, demotion, and other similar changes in
employment status; and
(6) for a continuing program of maintenance and
improvement designed to keep the prevailing rate system
fully abreast of changing conditions, practices, and
techniques both in and out of the Government of the
United States.
(d)(1) A lead agency, in making a wage survey, shall
determine whether there exists in the local wage area a number
of comparable positions in private industry sufficient to
establish wage schedules and rates for the principal types of
positions for which the survey is made. The determination shall
be in writing and shall take into consideration all relevant
evidence, including evidence submitted by employee
organizations recognized as representative of prevailing rate
employees in that area.
(2) When the lead agency determines that there is a number
of comparable positions in private industry insufficient to
establish the wage schedules and rates, such agency shall--
(A) establish the wage schedules and rates to be
applicable to prevailing rate employees other than
prevailing rate employees of the Department of Defense
on the basis of--
(i) local private industry rates; and
(ii) rates paid for comparable positions in
private industry in the nearest wage area that
such agency determines is most similar in the
nature of its population, employment, manpower,
and industry to the local wage area for which
the wage survey is being made; and
(B) establish the wage schedules and rates to be
applicable to prevailing rate employees of the
Department of Defense only on the basis of local
private industry rates.
(e)(1) Each grade of a regular wage schedule for
nonsupervisor prevailing rate employees shall have 5 steps
with--
(A) the first step at 96 percent of the prevailing
rate;
(B) the second step at 100 percent of the
prevailing rate;
(C) the third step at 104 percent of the prevailing
rate;
(D) the fourth step at 108 percent of the
prevailing rate; and
(E) the fifth step at 112 percent of the prevailing
rate.
(2) A prevailing rate employee under a regular wage
schedule who has a work performance rating of satisfactory or
better, as determined by the head of the agency, shall advance
automatically to the next higher step within the grade at the
beginning of the first applicable pay period following his
completion of--
(A) 26 calendar weeks of service in step 1;
(B) 78 calendar weeks of service in step 2; and
(C) 104 calendar weeks of service in each of steps
3 and 4.
(3) Under regulations prescribed by the Office of Personnel
Management, the benefits of successive step increases shall be
preserved for prevailing rate employees under a regular wage
schedule whose continuous service is interrupted in the public
interest by service with the armed forces or by service in
essential non-Government civilian employment during a period of
war or national emergency.
(4) Supervisory wage schedules and special wage schedules
authorized under subsection (c)(3) of this section may have
single or multiple rates or steps according to prevailing
practices in the industry on which the schedule is based.
(f) A prevailing rate employee is entitled to pay at his
scheduled rate plus a night differential--
(1) amounting to 7\1/2\ percent of that scheduled
rate for regularly scheduled nonovertime work a
majority of the hours of which occur between 3 p.m. and
midnight; and
(2) amounting to 10 percent of that scheduled rate
for regularly scheduled nonovertime work a majority of
the hours of which occur between 11 p.m. and 8 a.m.
A night differential under this subsection is a part of basic
pay.
Sec. 5344. Effective date of wage increase; retroactive pay
(a) Each increase in rates of basic pay granted, pursuant
to a wage survey, to prevailing rate employees is effective not
later than the first day of the first pay period which begins
on or after the 45th day, excluding Saturdays and Sundays,
following the date the wage survey is ordered to be made.
(b) Retroactive pay is payable by reason of an increase in
rates of basic pay referred to in subsection (a) of this
section only when--
(1) the individual is in the service of the
Government of the United States, including service in
the armed forces, or the government of the District of
Columbia on the date of the issuance of the order
granting the increase; or
(2) the individual retired or died during the
period beginning on the effective date of the increase
and ending on the date of issuance of the order
granting the increase, and only for services performed
during that period.
For the purpose of this subsection, service in the armed forces
includes the period provided by statute for the mandatory
restoration of the individual to a position in or under the
Government of the United States or the government of the
District of Columbia after he is relieved from training and
service in the armed forces or discharged from hospitalization
following that training and service.
[Sec. 5345. Repealed. Pub. L. 95-454, title VIII, Sec. 801(a)(2), Oct.
13, 1978, 92 Stat. 1221.]
Sec. 5346. Job grading system
(a) The Office of Personnel Management, after consulting
with the agencies and with employee organizations, shall
establish and maintain a job grading system for positions to
which this subchapter applies. In carrying out this subsection,
the Office shall--
(1) establish the basic occupational alinement and
grade structure or structures for the job grading
system;
(2) establish and define individual occupations and
the boundaries of each occupation;
(3) establish job titles within occupations;
(4) develop and publish job grading standards; and
(5) provide a method to assure consistency in the
application of job standards.
(b) The Office, from time to time, shall review such
numbers of positions in each agency as will enable the Office
to determine whether the agency is placing positions in
occupations and grades in conformance with or consistently with
published job standards. When the Office finds that a position
is not placed in its proper occupation and grade in conformance
with published standards or that a position for which there is
no published standard is not placed in the occupation and grade
consistently with published standards, it shall, after
consultation with appropriate officials of the agency
concerned, place the position in its appropriate occupation and
grade and shall certify this action to the agency. The agency
shall act in accordance with the certificate, and the
certificate is binding on all administrative, certifying,
payroll, disbursing, and accounting officials.
(c) On application, made in accordance with regulations
prescribed by the Office, by a prevailing rate employee for the
review of the action of an employing agency in placing his
position in an occupation and grade for pay purposes, the
Office shall--
(1) ascertain currently the facts as to the duties,
responsibilities, and qualification requirements of the
position;
(2) decide whether the position has been placed in
the proper occupation and grade; and
(3) approve, disapprove, or modify, in accordance
with its decision, the action of the employing agency
in placing the position in an occupation and grade.
The Office shall certify to the agency concerned its action
under paragraph (3) of this subsection. The agency shall act in
accordance with the certificate, and the certificate is binding
on all administrative, certifying, payroll, disbursing, and
accounting officials.
Sec. 5347. Federal Prevailing Rate Advisory Committee
(a) There is established a Federal Prevailing Rate Advisory
Committee composed of--
(1) the Chairman, who shall not hold any other
office or position in the Government of the United
States or the government of the District of Columbia,
and who shall be appointed by the Director of the
Office of Personnel Management for a 4-year term;
(2) one member from the Office of the Secretary of
Defense, designated by the Secretary of Defense;
(3) two members from the military departments,
designated by the Director of the Office of Personnel
Management;
(4) one member, designated by the Director of the
Office of Personnel Management from time to time from
an agency (other than the Department of Defense, a
military department, and the Office of Personnel
Management);
(5) an employee of the Office of Personnel
Management, designated by the Director of the Office of
Personnel Management; and
(6) five members, designated by the Director of the
Office of Personnel Management, from among the employee
organizations representing, under exclusive recognition
of the Government of the United States, the largest
numbers of prevailing rate employees.
(b) In designating members from among employee
organizations under subsection (a)(6) of this section, the
Director of the Office of Personnel Management shall designate,
as nearly as practicable, a number of members from a particular
employee organization in the same proportion to the total
number of employee representatives appointed to the Committee
under subsection (a)(6) of this section as the number of
prevailing rate employees represented by such organization is
to the total number of prevailing rate employees. However,
there shall not be more than two members from any one employee
organization nor more than four members from a single council,
federation, alliance, association, or affiliation of employee
organizations.
(c) Every 2 years the Director of the Office of Personnel
Management shall review employee organization representation to
determine adequate or proportional representation under the
guidelines of subsection (b) of this section.
(d) The members from the employee organizations serve at
the pleasure of the Director of the Office of Personnel
Management.
(e) The Committee shall study the prevailing rate system
and other matters pertinent to the establishment of prevailing
rates under this subchapter and, from time to time, advise the
Office of Personnel Management thereon. Conclusions and
recommendations of the Committee shall be formulated by
majority vote. The Chairman of the Committee may vote only to
break a tie vote of the Committee.
(f) The Committee shall meet at the call of the Chairman.
However, a special meeting shall be called by the Chairman if 5
members make a written request to the Chairman to call a
special meeting to consider matters within the purview of the
Committee.
(g)(1) Except as provided in paragraph (2), members of the
Committee described in paragraphs (2)-(5) of subsection (a) of
this section serve without additional pay. Members who
represent employee organizations are not entitled to pay from
the Government of the United States for services rendered to
the Committee.
(2) The position of Chairman shall be considered to be a
Senior Executive Service position within the meaning of section
3132(a), and shall be subject to all provisions of this title
relating to Senior Executive Service positions, including
section 5383.
(h) The Office of Personnel Management shall provide such
clerical and professional personnel as the Chairman of the
Committee considers appropriate and necessary to carry out its
functions under this subchapter. Such personnel shall be
responsible to the Chairman of the Committee.
Sec. 5348. Crews of vessels
(a) Except as provided by subsection (b) of this section,
the pay of officers and members of crews of vessels excepted
from chapter 51 of this title by section 5102(c)(8) of this
title shall be fixed and adjusted from time to time as nearly
as is consistent with the public interest in accordance with
prevailing rates and practices in the maritime industry.
(b) Vessel employees in an area where inadequate maritime
industry practice exists and vessel employees of the Corps of
Engineers shall have their pay fixed and adjusted under the
provisions of this subchapter other than this section, as
appropriate.
Sec. 5349. Prevailing rate employees; legislative, judicial, Bureau of
Engraving and Printing, and government of the
District of Columbia
(a) The pay of employees, described under section
5102(c)(7) of this title, the Library of Congress, the Botanic
Garden, the Government Printing Office, the General Accounting
Office, the Office of the Architect of the Capitol, the Bureau
of Engraving and Printing, and the government of the District
of Columbia, shall be fixed and adjusted from time to time as
nearly as is consistent with the public interest in accordance
with prevailing rates and in accordance with such provisions of
this subchapter, including the provisions of section 5344,
relating to retroactive pay, and subchapter VI of this chapter,
relating to grade and pay retention, as the pay-fixing
authority of each such agency may determine. Subject to section
213(f) of title 29, the rates may not be less than the
appropriate rates provided for by section 206(a)(1) of title
29. If the pay-fixing authority concerned determines that the
provisions of subchapter VI of this chapter should apply to any
employee under his jurisdiction, then the employee concerned
shall be deemed to have satisfied the requirements of section
5361(1) of this title if the tenure of his appointment is
substantially equivalent to the tenure of any appointment
referred to in such paragraph.
(b) Subsection (a) of this section does not modify or
otherwise affect section 5102(d) of this title, section 305 of
title 44, and section 5141 of title 31.
SUBCHAPTER V--STUDENT-EMPLOYEES
Sec. 5351. Definitions
For the purpose of this subchapter--
(1) ``agency'' means an Executive agency, a
military department, and the government of the District
of Columbia; and
(2) ``student-employee'' means--
(A) a student nurse, medical or dental
intern, resident-in-training, student
dietitian, student physical therapist, and
student occupational therapist, assigned or
attached to a hospital, clinic, or medical or
dental laboratory operated by an agency; and
(B) any other student-employee, assigned or
attached primarily for training purposes to a
hospital, clinic, or medical or dental
laboratory operated by an agency, who is
designated by the head of the agency with the
approval of the Office of Personnel Management.
Sec. 5352. Stipends
The head of each agency, and the District of Columbia
Council with respect to the government of the District of
Columbia, shall fix the stipends of its student-employees. The
stipend may not exceed the applicable maximum prescribed by the
Office of Personnel Management.
Sec. 5353. Quarters, subsistence, and laundry
An agency may provide living quarters, subsistence, and
laundering to student-employees while at the hospitals,
clinics, or laboratories. The reasonable value of the
accommodations, when furnished, shall be deducted from the
stipend of the student-employee. The head of the agency
concerned, and the District of Columbia Council with respect to
the government of the District of Columbia, shall fix the
reasonable value of the accommodations at an amount not less
than the lowest deduction applicable to regular employees at
the same hospital, clinic, or laboratory for similar
accommodations.
Sec. 5354. Effect of detail or affiliation; travel expenses
(a) Status as a student-employee is not terminated by a
temporary detail to, or affiliation with another Government or
non-Government institution to procure necessary supplementary
training or experience pursuant to an order of the head of the
agency. A student-employee may receive his stipend and other
perquisites provided under this subchapter from the hospital,
clinic, or laboratory to which he is assigned or attached for
not more than 60 days of a detail or affiliation for each
training year, as defined by the head of the agency.
(b) When the detail or affiliation under subsection (a) of
this section is to or with another Federal institution, the
student-employee is entitled to necessary expenses of travel to
and from the institution in accordance with subchapter I of
chapter 57 of this title.
Sec. 5355. Effect on other statutes
This subchapter does not limit the authority conferred on
the Secretary of Veterans Affairs by chapter 73 of title 38.
Sec. 5356. Appropriations
Funds appropriated to an agency for expenses of its
hospitals, clinics, and laboratories to which student-employees
are assigned or attached are available to carry out the
provisions of this subchapter.
SUBCHAPTER VI--GRADE AND PAY RETENTION
Sec. 5361. Definitions
For the purpose of this subchapter--
(1) ``employee'' means an employee to whom chapter
51 of this title applies, and a prevailing rate
employee, as defined by section 5342(a)(2) of this
title, whose employment is other than on a temporary or
term basis;
(2) ``agency'' has the meaning given it by section
5102 of this title;
(3) ``retained grade'' means the grade used for
determining benefits to which an employee to whom
section 5362 of this title applies is entitled;
(4) ``rate of basic pay'' means, in the case of a
prevailing rate employee, the scheduled rate of pay
determined under section 5343 of this title;
(5) ``covered pay schedule'' means the General
Schedule, any prevailing rate schedule established
under subchapter IV of this chapter, or a special
occupational pay system under subchapter IX;
(6) ``position subject to this subchapter'' means
any position under a covered pay schedule; and
(7) ``reduction-in-force procedures'' means
procedures applied in carrying out any reduction in
force due to a reorganization, due to lack of funds or
curtailment of work, or due to any other factor.
Sec. 5362. Grade retention following a change of positions or
reclassification
(a) Any employee--
(1) who is placed as a result of reduction-in-force
procedures from a position subject to this subchapter
to another position which is subject to this subchapter
and which is in a lower grade than the previous
position, and
(2) who has served for 52 consecutive weeks or more
in one or more positions subject to this subchapter at
a grade or grades higher than that of the new position,
is entitled, to the extent provided in subsection (c) of this
section, to have the grade of the position held immediately
before such placement be considered to be the retained grade of
the employee in any position he holds for the 2-year period
beginning on the date of such placement.
(b)(1) Any employee who is in a position subject to this
subchapter and whose position has been reduced in grade is
entitled, to the extent provided in subsection (c) of this
section, to have the grade of such position before reduction be
treated as the retained grade of such employee for the 2-year
period beginning on the date of the reduction in grade.
(2) The provisions of paragraph (1) of this subsection
shall not apply with respect to any reduction in the grade of a
position which had not been classified at the higher grade for
a continuous period of at least one year immediately before
such reduction.
(c) For the 2-year period referred to in subsections (a)
and (b) of this section, the retained grade of an employee
under such subsection (a) or (b) shall be treated as the grade
of the employee's position for all purposes (including pay and
pay administration under this chapter and chapter 55 of this
title, retirement and life insurance under chapters 83, 84, and
87 of this title, and eligibility for training and promotion
under this title) except--
(1) for purposes of subsection (a) of this section,
(2) for purposes of applying any reduction-in-force
procedures, or
(3) for such other purposes as the Office of
Personnel Management may provide by regulation.
(d) The foregoing provisions of this section shall cease to
apply to an employee who--
(1) has a break in service of one workday or more;
(2) is demoted (determined without regard to this
section) for personal cause or at the employee's
request;
(3) is placed in, or declines a reasonable offer
of, a position the grade of which is equal to or higher
than the retained grade; or
(4) elects in writing to have the benefits of this
section terminate.
Sec. 5363. Pay retention
(a) Any employee--
(1) who ceases to be entitled to the benefits of
section 5362 of this title by reason of the expiration
of the 2-year period of coverage provided under such
section;
(2) who is in a position subject to this subchapter
and who is subject to a reduction or termination of a
special rate of pay established under section 5305 of
this title (or corresponding prior provision of this
title);
(3) who is in a position subject to this subchapter
and who (but for this section) would be subject to a
reduction in pay under circumstances prescribed by the
Office of Personnel Management by regulation to warrant
the application of this section; or
(4) who is in a position subject to this subchapter
and who is subject to a reduction or termination of a
rate of pay established under subchapter IX of chapter
53;
is entitled to basic pay at a rate equal to (A) the employee's
allowable former rate of basic pay, plus (B) 50 percent of the
amount of each increase in the maximum rate of basic pay
payable for the grade of the employee's position immediately
after such reduction in pay if such allowable former rate
exceeds such maximum rate for such grade.
(b) For the purpose of subsection (a) of this section,
``allowable former rate of basic pay'' means the lower of--
(1) the rate of basic pay payable to the employee
immediately before the reduction in pay; or
(2) 150 percent of the maximum rate of basic pay
payable for the grade of the employee's position
immediately after such reduction in pay.
(c) The preceding provisions of this section shall cease to
apply to an employee who--
(1) has a break in service of one workday or more;
(2) is entitled by operation of this subchapter or
chapter 51 or 53 of this title to a rate of basic pay
which is equal to or higher than, or declines a
reasonable offer of a position the rate of basic pay
for which is equal to or higher than, the rate to which
the employee is entitled under this section; or
(3) is demoted for personal cause or at the
employee's request.
Sec. 5364. Remedial actions
Under regulations prescribed by the Office of Personnel
Management, the Office may require any agency--
(1) to report to the Office information with
respect to vacancies (including impending vacancies);
(2) to take such steps as may be appropriate to
assure employees receiving benefits under section 5362
or 5363 of this title have the opportunity to obtain
necessary qualifications for the selection to positions
which would minimize the need for the application of
such sections;
(3) to establish a program under which employees
receiving benefits under section 5362 or 5363 of this
title are given priority in the consideration for or
placement in positions which are equal to their
retained grade or pay; and
(4) to place certain employees, notwithstanding the
fact their previous position was in a different agency,
but only in circumstances in which the Office
determines the exercise of such authority is necessary
to carry out the purpose of this section.
Sec. 5365. Regulations
(a) The Office of Personnel Management shall prescribe
regulations to carry out the purpose of this subchapter.
(b) Under such regulations, the Office may provide for the
application of all or portions of the provisions of this
subchapter--
(1) to any individual reduced to a grade of a
covered pay schedule from a position not subject to
this subchapter;
(2) to individuals to whom such provisions do not
otherwise apply; and
(3) to situations the application to which is
justified for purposes of carrying out the mission of
the agency or agencies involved.
Individuals with respect to whom authority under paragraph (2)
may be exercised include individuals who are moved without a
break in service of more than 3 days from employment in
nonappropriated fund instrumentalities of the Department of
Defense or the Coast Guard described in section 2105(c) to
employment in the Department of Defense or the Coast Guard,
respectively, that is not described in section 2105(c).
Sec. 5366. Appeals
(a)(1) In the case of the termination of any benefits
available to an employee under this subchapter on the grounds
such employee declined a reasonable offer of a position the
grade or pay of which was equal to or greater than his retained
grade or pay, such termination may be appealed to the Office of
Personnel Management under procedures prescribed by the Office.
(2) Nothing in this subchapter shall be construed to affect
the right of any employee to appeal--
(A) under section 5112(b) or 5346(c) of this title,
or otherwise, any reclassification of a position; or
(B) under procedures prescribed by the Office of
Personnel Management, any reduction-in-force action.
(b) For purposes of any appeal procedures (other than those
described in subsection (a) of this section) or any grievance
procedure negotiated under the provisions of chapter 71 of this
title--
(1) any action which is the basis of an
individual's entitlement to benefits under this
subchapter, and
(2) any termination of any such benefits under this
subchapter,
shall not be treated as appealable under such appeals
procedures or grievable under such grievance procedure.
SUBCHAPTER VII--MISCELLANEOUS PROVISIONS
Sec. 5371. Health care positions
(a) For the purposes of this section, ``health care'' means
direct patient-care services or services incident to direct
patient-care services.
(b) The Office of Personnel Management may, with respect to
any employee described in subsection (c), provide that 1 or
more provisions of chapter 74 of title 38 shall apply--
(1) in lieu of any provision of chapter 51 or 61,
subchapter V of chapter 55, or any other provision of
this chapter; or
(2) notwithstanding any lack of specific authority
for a matter with respect to which chapter 51 or 61,
subchapter V of chapter 55, or this chapter, relates.
(c) Authority under subsection (b) may be exercised with
respect to any employee holding a position--
(1) to which chapter 51 applies, excluding any
Senior Executive Service position and any position in
the Federal Bureau of Investigation and Drug
Enforcement Administration Senior Executive Service;
and
(2) which involves health care responsibilities.
Sec. 5372. Administrative law judges
(a) For the purposes of this section, the term
``administrative law judge'' means an administrative law judge
appointed under section 3105.
(b)(1)(A) There shall be 3 levels of basic pay for
administrative law judges (designated as AL-1, 2, and 3,
respectively), and each such judge shall be paid at 1 of those
levels, in accordance with the provisions of this section.
(B) Within level AL-3, there shall be 6 rates of basic pay,
designated as AL-3, rates A through F, respectively. Level AL-2
and level AL-1 shall each have 1 rate of basic pay.
(C) The rate of basic pay for AL-3, rate A, may not be less
than 65 percent of the rate of basic pay for level IV of the
Executive Schedule, and the rate of basic pay for AL-1 may not
exceed the rate for level IV of the Executive Schedule.
(2) The Office of Personnel Management shall determine in
accordance with procedures which the Office shall by regulation
prescribe, the level in which each administrative-law-judge
position shall be placed and the qualifications to be required
for appointment to each level.
(3)(A) Upon appointment to a position in AL-3, an
administrative law judge shall be paid at rate A of AL-3, and
shall be advanced successively to rates B, C, and D of that
level at the beginning of the next pay period following
completion of 52 weeks of service in the next lower rate, and
to rates E and F of that level at the beginning of the next pay
period following completion of 104 weeks or service in the next
lower rate.
(B) The Office of Personnel Management may provide for
appointment of an administrative law judge in AL-3 at an
advanced rate under such circumstances as the Office may
determine appropriate.
(4) Subject to paragraph (1), effective at the beginning of
the first applicable pay period commencing on or after the
first day of the month in which an adjustment takes effect
under section 5303 in the rates of basic pay under the General
Schedule, each rate of basic pay for administrative law judges
shall be adjusted by an amount determined by the President to
be appropriate.
(c) The Office of Personnel Management shall prescribe
regulations necessary to administer this section.
Sec. 5372a. Contract appeals board members
(a) For the purpose of this section--
(1) the term ``contract appeal board member'' means
a member of an agency board of contract appeals
appointed under section 8 of the Contract Disputes Act
of 1978; and
(2) the term ``appeals board'' means an agency
board of contract appeals established pursuant to
section 8 of the Contract Disputes Act of 1978.
(b) Rates of basic pay for contract appeals board members
shall be as follows:
(1) Chairman of an appeals board--the rate of basic
pay payable for level IV of the Executive Schedule.
(2) Vice chairman of an appeals board--97 percent
of the rate under paragraph (1).
(3) Other members of an appeals board--94 percent
of the rate under paragraph (1).
(c) Rates of pay taking effect under this section shall be
printed in the Federal Register and the Code of Federal
Regulations.
Sec. 5372b. Administrative appeals judges \1\
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\1\ Subsections (a)(1) and (a)(3) of section 645 of the Treasury
and General Government Appropriations Act, 2001 (114 Stat. 2763A-169),
as enacted into law by section 1(a)(3) of Public Law 106-554, added
this section after section 5372a. Section 645(b) of such Act provides:
(b) The amendment made by subsection (a)(1) shall apply with
respect to pay for service performed on or after the first day of the
first applicable pay period beginning on or after--
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(1) the 120th day after the date of the enactment of this Act
[December 21, 2000]; or
(2) if earlier, the effective date of regulations prescribed
by the Office of Personnel Management to carry out such
amendment.
(a) For the purpose of this section--
(1) the term ``administrative appeals judge
position'' means a position the duties of which
primarily involve reviewing decisions of administrative
law judges appointed under section 3105; and
(2) the term ``agency'' means an Executive agency,
as defined by section 105, but does not include the
General Accounting Office.
(b) Subject to such regulations as the Office of Personnel
Management may prescribe, the head of the agency concerned
shall fix the rate of basic pay for each administrative appeals
judge position within such agency which is not classified above
GS-15 pursuant to section 5108.
(c) A rate of basic pay fixed under this section shall be--
(1) not less than the minimum rate of basic pay for
level AL-3 under section 5372; and
(2) not greater than the maximum rate of basic pay
for level AL-3 under section 5372.
Sec. 5373. Limitation on pay fixed by administrative action
(a) Except as provided in subsection (b) and by the
Government Employees Salary Reform Act of 1964 (78 Stat. 400)
and notwithstanding the provisions of other statutes, the head
of an Executive agency or military department who is authorized
to fix by administrative action the annual rate of basic pay
for a position or employee may not fix the rate at more than
the rate for level IV of the Executive Schedule. This section
does not impair the authorities provided by--
(1) sections 248, 481, and 1819 of title 12;\1\
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\1\ Conflicting amendments made by Public Law 101-73. See 103 Stat.
437 and 523.
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(2) section 831b of title 16; or
(3) sections 403a-403c, 403e-403h, and 403j of
title 50.
(b) Subsection (a) shall not affect the authority of the
Secretary of Defense or the Secretary of a military department
to fix the pay of a civilian employee paid from nonappropriated
funds, except that the annual rate of basic pay (including any
portion of such pay attributable to comparability with private-
sector pay in a locality) of such an employee may not be fixed
at a rate greater than the rate for level III of the Executive
Schedule.
Sec. 5374. Miscellaneous positions in the executive branch
The head of the agency concerned shall fix the annual rate
of basic pay for each position in the executive branch
specifically referred to in, or covered by, a conforming change
in statute made by section 305 of the Government Employees
Salary Reform Act of 1964 (78 Stat. 422), or other position in
the executive branch for which the annual pay is fixed at a
rate of $18,500 or more under special provision of statute
enacted before August 14, 1964, which is not placed in a level
of the Executive Schedule set forth in subchapter II of this
chapter, at a rate equal to the pay rate of a grade and step of
the General Schedule set forth in section 5332 of this title.
The head of the agency concerned shall report each action taken
under this section to the Office of Personnel Management and
publish a notice thereof in the Federal Register, except when
the President determines that the report and publication would
be contrary to the interest of national security.
Sec. 5375. Police force of the National Zoological Park
The Secretary of the Smithsonian Institute shall fix the
annual rates of basic pay for positions on the police force of
the National Zoological Park as follows:
(1) Private, not more than the maximum annual rate
of basic pay payable for grade GS-7 of the General
Schedule.
(2) Sergeant, not more than the maximum annual rate
of basic pay payable for grade GS-8 of the General
Schedule.
(3) Lieutenant, not more than the maximum annual
rate of basic pay payable for grade GS-9, of the
General Schedule.
(4) Captain, not more than the maximum annual rate
of basic pay payable for grade GS-10 of the General
Schedule.
Sec. 5376. Pay for certain senior-level positions \1\
(a) This section applies to--
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\1\ Section 101(c)-(d) of the Federal Employees Pay Comparability
Act of 1990 (Public Law 101-509; 104 Stat. 1442) provides:
(c) Other References.--Until otherwise provided by law--
---------------------------------------------------------------------------
(1) any reference in a provision of law (which is outside
title 5, United States Code, and in effect immediately before
this section takes effect, excluding any reference in a
provision of law amended by this Act)--
(A)(i) to the rate of pay for grade GS-18 of the
General Schedule, or to the maximum rate of pay under
the General Schedule, shall be considered a reference
to the maximum rate payable under section 5376 of such
title (as amended by section 102(a));
(ii) to the minimum rate of pay for grade GS-16 of
the General Schedule shall be considered a reference to
the minimum rate payable under section 5376 of such
title (as amended by section 102(a)); and
(iii) to a rate of pay for grade GS-16 or 17 of the
General Schedule shall (except as provided in clause
(ii)) be considered a reference to a rate of pay for a
position classified above GS-15 pursuant to section
5108 of such title (as amended by section 102(b)(2));
and
(B) to a rate of pay under the General Schedule shall
not include any comparability payment payable under
section 5304 of such title (as amended by this section)
or any geographic adjustment payable under section 302;
and
(2) any authority granted by a provision of law (which is
outside such title, and in effect immediately before this
section takes effect) to fix pay in accordance with chapter 51
and subchapter II of chapter 53 of such title--
(A) shall not be considered to include any authority
under section 5304 of such title (as amended by this
section) or section 302; but
(B) shall be considered to include authority under
section 5376 of such title (as amended by section
102(a)), if applicable.
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(d) Regulations.--The Office of Personnel Management may prescribe
regulations, consistent with subsection (c)(1)(B) and section 303,
governing the conversion or adjustment of rates of pay, where necessary
because of the abolishment of grades GS-16, 17, and 18 of the General
Schedule.
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(1) positions that are classified above GS-15
pursuant to section 5108; and
(2) scientific or professional positions
established under section 3104;
but does not apply--
(A) any Senior Executive Service position under
section 3132; or
(B) any position in the Federal Bureau of
Investigation and Drug Enforcement Administration
Senior Executive Service under section 3151.
(b)(1) Subject to such regulations as the Office of
Personnel Management prescribes, the head of the agency
concerned shall fix the rate of basic pay for any position
within such agency to which this section applies. A rate fixed
under this section shall be--
(A) not less than 120 percent of the minimum rate
of basic pay payable for GS-15 of the General Schedule;
and
(B) not greater than the rate of basic pay payable
for level IV of the Executive Schedule.
The payment of a rate of basic pay under this section shall not
be subject to the pay limitation of section 5306(e) or 5373.
(2) Subject to paragraph (1), effective at the beginning of
the first applicable pay period commencing on or after the
first day of the month in which an adjustment takes effect
under section 5303 in the rates of pay under the General
Schedule, each rate of pay established under this section for
positions within an agency shall be adjusted by such amount as
the head of such agency considers appropriate.
Sec. 5377. Pay authority for critical positions
(a) For the purpose of this section--
(1) the term ``agency'' has the meaning given it by
section 5102; and
(2) the term ``position'' means--
(A) a position to which chapter 51 applies,
including a position in the Senior Executive
Service or the Federal Bureau of Investigation
and Drug Enforcement Administration Senior
Executive Service;
(B) a position under the Executive Schedule
under sections 5312-5317;
(C) a position to which section 5372
applies (or would apply, but for this section);
(D) a position to which section 5372a
applies (or would apply, but for this section);
(E) a position established under section
3104; and
(F) a position in a category as to which a
designation is in effect under subsection (i).
(b) Authority under this section--
(1) may be granted or exercised only with respect
to a position--
(A) which requires expertise of an
extremely high level in a scientific,
technical, professional, or administrative
field; and
(B) which is critical to the agency's
successful accomplishment of an important
mission; and
(2) may be granted or exercised only to the extent
necessary to recruit or retain an individual
exceptionally well qualified for the position.
(c) The Office of Management and Budget, in consultation
with the Office of Personnel Management, may, upon the request
of the head of an agency, grant authority to fix the rate of
basic pay for 1 or more positions in such agency in accordance
with this section.
(d)(1) The rate of basic pay fixed under this section by an
agency head may not be less than the rate of basic pay
(including any comparability payments) which would then
otherwise be payable for the position involved if this section
had never been enacted.
(2) Basic pay may not be fixed under this section at a rate
greater than the rate payable for level I of the Executive
Schedule, except upon written approval of the President.
(e) The authority to fix the rate of basic pay under this
section for a position shall terminate--
(1) whenever the Office of Management and Budget
determines (in accordance with such procedures and
subject to such terms or conditions as such Office by
regulation prescribes) that 1 or more of the
requirements of subsection (b) are no longer met; or
(2) as of such date as such Office may otherwise
specify, except that termination under this paragraph
may not take effect before the authority has been
available for such position for at least 1 calendar
year.
(f) The Office of Management and Budget may not authorize
the exercise of authority under this section with respect to
more than 800 positions at any time, of which not more than 30
may, at any such time, be positions the rate of basic pay for
which would otherwise be determined under subchapter II.
(g) The Office of Management and Budget shall consult with
the Office of Personnel Management before prescribing
regulations under this section or making any decision to grant
or terminate any authority under this section.
(h) The Office of Management and Budget shall report to the
Committee on Post Office and Civil Service of the House of
Representatives and the Committee on Governmental Affairs of
the Senate each year, in writing, on the operation of this
section. Each report under this subsection shall include--
(1) the number of positions, in the aggregate and
by agency, for which higher rates of pay were
authorized or paid under this section during any part
of the period covered by such report; and
(2) the name of each employee to whom a higher rate
of pay was paid under this section during any portion
of the period covered by such report, the rate on rates
paid under this section during such period, the dates
between which each such higher rate was paid, and the
rate or rates that would have been paid but for this
section.
(i)(1) For the purpose of this subsection, the term
``position'' means the work, consisting of the duties and
responsibilities, assignable to an employee, except that such
term does not include any position under subsection (a)(2)(A)-
(E).
(2) At the request of an agency head, the President may
designate 1 or more categories of positions within such agency
to be treated, for purposes of this section, as positions
within the meaning of subsection (a)(2).
Sec. 5378. Police forces of the Bureau of Engraving and Printing and
the United States Mint
(a) The Secretary of the Department of the Treasury, or his
designee, in his sole discretion shall fix the rates of basic
pay for positions within the police forces of the United States
Mint and the Bureau of Engraving and Printing without regard to
the pay provisions of title 5, United States Code, except that
no entry-level police officer shall receive basic pay for a
calendar year that is less than the basic rate of pay for
General Schedule GS-7 and no executive security official shall
receive basic compensation for a calendar year that exceeds the
basic rate of pay for General Schedule GS-15.
(b) For the purposes of this section, the term ``police
forces of the Bureau of Engraving and Printing and the United
States Mint'' means the employees of the Department of the
Treasury who are appointed, under the authority of the
Secretary of the Treasury, as police officers for the
protection of the Bureau of Engraving and Printing and the
United States Mint buildings and property.\1\
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\1\ Section 519 of the Treasury, Postal Service, and General
Government Appropriations Act, 1996 (Public Law 104-52) added a new
paragraph (8) at the end of section 5378 (probably should have been to
subsection (a) thereof). That paragraph probably should have been
deleted as part of the amendment made by section 121 of Public Law 105-
61 (111 Stat. 1289).
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Sec. 5379. Student loan repayments
(a)(1) For the purpose of this section--
(A) the term ``agency'' means an agency under
subparagraph (A), (B),(C), (D), or (E) of section
4101(1) of this title; and
(B) the term ``student loan'' means--
(i) a loan made, insured, or guaranteed
under part B of title IV of the Higher
Education Act of 1965 (20 U.S.C. 1071 et seq.);
(ii) a loan made under part D or E of title
IV of the Higher Education Act of 1965 (20
U.S.C. 1087a et seq., 1087aa et seq.); and
(iii) a health education assistance loan
made or insured under part A of title VII of
the Public Health Service Act (42 U.S.C. 292 et
seq.) or under part E of title VIII of such Act
(42 U.S.C. 297a et seq.).
(2) An employee shall be ineligible for benefits under this
section if the employee occupies a position that is excepted
from the competitive service because of its confidential,
policy-determining, policy-making, or policy-advocating
character.
(b)(1) The head of an agency may, in order to recruit or
retain highly qualified personnel, establish a program under
which the agency may agree to repay (by direct payments on
behalf of the employee) any student loan previously taken out
by such employee.
(2) Payments under this section shall be made subject to
such terms, limitations, or conditions as may be mutually
agreed to by the agency and employee concerned, except that the
amount paid by an agency under this section may not exceed--
(A) $6,000 for any employee in any calendar year;
or
(B) a total of $40,000 in the case of any employee.
(3) Nothing in this section shall be considered to
authorize an agency to pay any amount to reimburse an employee
for any repayments made by such employee prior to the agency's
entering into an agreement under this section with such
employee.
(c)(1) An employee selected to receive benefits under this
section must agree in writing, before receiving any such
benefit, that the employee will--
(A) remain in the service of the agency for a
period specified in the agreement (not less than 3
years), unless involuntarily separated; and
(B) if separated involuntarily on account of
misconduct, or voluntarily, before the end of the
period specified in the agreement, repay to the
Government the amount of any benefits received by such
employee from that agency under this section.
(2) The payment agreed to under paragraph (1)(B) of this
subsection may not be required of an employee who leaves the
service of such employee's agency voluntarily to enter into the
service of any other agency unless the head of the agency that
authorized the benefits notifies the employee before the
effective date of such employee's entrance into the service of
the other agency that payment will be required under this
subsection.
(3) If an employee who is involuntarily separated on
account of misconduct or who (excluding any employee relieved
of liability under paragraph (2) of this subsection) is
voluntarily separated before completion the required period of
service fails to repay the amount agreed to under paragraph
(1)(B) of this subsection, a sum equal to the amount
outstanding is recoverable by the Government from the employee
(or such employee's estate, if applicable) by--
(A) setoff against accrued pay, compensation,
amount of retirement credit, or another amount due the
employee from the Government; and
(B) such other method as is provided by law for the
recovery of amounts owing to the Government.
The head of the agency concerned may waive, in whole or in
part, a right of recovery under this subsection if it is shown
that recovery would be against equity and good conscience or
against the public interest.
(4) Any amount repaid by, or recovered from, an individual
(or an estate) under this subsection shall be credited to the
appropriation account from which the amount involved was
originally paid. Any amount so credited shall be merged with
other sums in such account and shall be available for the same
purposes and period, and subject to the same limitations (if
any), as the sums with which merged.
(d) An employee receiving benefits under this section from
an agency shall be ineligible for continued benefits under this
section from such agency if the employee--
(1) separates from such agency; or
(2) does not maintain an acceptable level of
performance, as determined under standards and
procedures which the agency head shall by regulation
prescribe.
(e) In selecting employees to receive benefits under this
section, an agency shall, consistent with the merit system
principles set forth in paragraphs (1) and (2) of section
2301(b) of this title, take into consideration the need to
maintain a balanced workforce in which women and members of
racial and ethnic minority groups are appropriately represented
in Government service.
(f) Any benefit under this section shall be in addition to
basic pay and any other form of compensation otherwise payable
to the employee involved.
(g) The Director of the Office of Personnel Management,
after consultation with heads of a representative number and
variety of agencies and any other consultation which the
Director considers appropriate, shall prescribe regulations
containing such standards and requirements as the Director
considers necessary to provide for reasonable uniformity among
programs under this section.
(h)(1) Each head of an agency shall maintain, and annually
submit to the Director of the Office of Personnel Management,
information with respect to the agency on--
(A) the number of Federal employees selected to
receive benefits under this section;
(B) the job classifications for the recipients; and
(C) the cost to the Federal Government of providing
the benefits.
(2) The Director of the Office of Personnel Management
shall prepare, and annually submit to Congress, a report
containing the information submitted under paragraph (1), and
information identifying the agencies that have provided
benefits under this section.
SUBCHAPTER VIII--PAY FOR THE SENIOR EXECUTIVE SERVICE
Sec. 5381. Definitions
For the purpose of this subchapter, ``agency'', ``Senior
Executive Service position'', ``career appointee'', and
``senior executive'' have the meanings set forth in section
3132(a) of this title.
Sec. 5382. Establishment and adjustment of rates of pay for the Senior
Executive Service
(a) There shall be 5 or more rates of basic pay for the
Senior Executive Service, and each senior executive shall be
paid at one of the rates. The rates of basic pay shall be
initially established and thereafter adjusted by the President
subject to subsection (b) of this section.
(b) In setting rates of basic pay, the lowest rate for the
Senior Executive Service shall not be less than the minimum
rate of basic pay payable under section 5376 and the highest
rate shall not exceed the rate for level IV of the Executive
Schedule. The payment of the rates shall not be subject to the
pay limitation of section 5306(e) or 5373 of this title.
(c) Subject to subsection (b) of this section, effective at
the beginning of the first applicable pay period commencing on
or after the first day of the month in which an adjustment
takes effect under section 5303 of this title in the rates of
pay under the General Schedule, each rate of basic pay for the
Senior Executive Service shall be adjusted by an amount
determined by the President to be appropriate.
(d) The rates of basic pay that are established and
adjusted under this section shall be printed in the Federal
Register and shall supersede any prior rates of basic pay for
the Senior Executive Service.
Sec. 5383. Setting individual senior executive pay
(a) Each appointing authority shall determine, in
accordance with criteria established by the Office of Personnel
Management, which of the rates established under section 5382
of this title shall be paid to each senior executive under such
appointing authority.
(b) Members of the Senior Executive Service shall be
subject to the limitation under section 5307.
(c) Except for any pay adjustment under section 5382 of
this title, the rate of basic pay for any senior executive may
not be adjusted more than once during any 12-month period.
(d) The rate of basic pay for any career appointee may be
reduced from any rate of basic pay to any lower rate of basic
pay only if the career appointee receives a written notice of
the reduction at least 15 days in advance of the reduction.
(e)(1) This subsection applies to--
(A) any individual who, after serving at least 5
years of current continuous service in 1 or more
positions in the competitive service, is appointed,
without any break in service, as a career appointee;
and
(B) any individual who--
(i) holds a position which is converted
from the competitive service to a career
reserved position in the Senior Executive
Service; and
(ii) as of the conversion date, has at
least 5 years of current continuous service in
1 or more positions in the competitive service.
(2)(A) The initial rate of pay for a career appointee who
is appointed under the circumstances described in paragraph
(1)(A) may not be less than the rate of basic pay last payable
to that individual immediately before being so appointed.
(B) The initial rate of pay for a career appointee
following the position's conversion (as described in paragraph
(1)(B)) may not be less than the rate of basic pay last payable
to that individual immediately before such position's
conversion.
Sec. 5384. Performance awards in the Senior Executive Service
(a)(1) To encourage excellence in performance by career
appointees, performance awards shall be paid to career
appointees in accordance with the provisions of this section.
(2) Such awards shall be paid in a lump sum and shall be in
addition to the basic pay paid under section 5382 of this title
or any award paid under section 4507 of this title.
(b)(1) No performance award under this section shall be
paid to any career appointee whose performance was determined
to be less than fully successful at the time of the appointee's
most recent performance appraisal and rating under subchapter
II of chapter 43 of this title.
(2) The amount of a performance award under this section
shall be determined by the agency head but may not be less than
5 percent nor more than 20 percent of the career appointee's
rate of basic pay.
(3) The aggregate amount of performance awards paid under
this section by an agency during any fiscal year may not exceed
the greater of--
(A) an amount equal to 10 percent of the aggregate
amount of basic pay paid to career appointees in such
agency during the preceding fiscal year; or
(B) an amount equal to 20 percent of the average of
the annual rates of basic pay paid to career appointees
in such agency during the preceding fiscal year.
(c)(1) Performance awards paid by any agency under this
section shall be based on recommendations by performance review
boards established by such agency under section 4314 of this
title.
(2) not \1\ less than a majority of the members of any
review board referred to in paragraph (1) shall be career
appointees whenever making recommendations under such paragraph
with respect to a career appointee. The requirement of the
preceding sentence shall not apply in any case in which the
Office of Personnel Management determines that there exists an
insufficient number of career appointees available to comply
with the requirement.
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\1\ So in law. The word ``not'' probably should be capitalized. See
section 625(a) of P.L. 101-136 (103 Stat. 822).
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(d) The Office of Personnel Management may issue guidance
to agencies concerning the proportion of Senior Executive
Service salary expenses that may be appropriately applied to
payment of performance awards and the distribution of awards.
Sec. 5385. Regulations
The Office of Personnel Management shall prescribe
regulations to carry out the purpose of this subchapter.
SUBCHAPTER IX--SPECIAL OCCUPATIONAL PAY SYSTEMS
Sec. 5391. Definitions
For the purposes of this subchapter, ``agency'',
``employee'', and ``position'' have the meaning given them by
section 5102.
Sec. 5392. Establishment of special occupational pay systems
(a) Authority under this section may be exercised with
respect to any occupation or group of occupations to which
subchapter III applies (or would apply but for this section).
(b) Subject to subsection (a), the President's pay agent
(as referred to in section 5304(d)) may establish one or more
special occupational pay systems for any positions within
occupations or groups of occupations that the pay agent
determines, for reasons of good administration, should not be
classified under chapter 51 or subject to subchapter III.
(c) In establishing special occupational pay systems, the
pay agent shall--
(1) identify occupations or groups of occupations
for which chapter 51 and subchapter III do not function
adequately;
(2) consider alternative approaches for determining
the pay for employees in positions in such occupations
or groups of occupations;
(3) give thorough consideration to the views of
agencies employing such employees and labor
organizations representing such employees, as well as
other interested parties;
(4) publish a proposed plan for determining the pay
of such employees in the Federal Register;
(5) conduct one or more public hearings;
(6) provide each House of Congress with a report at
least 90 days in advance of the date the system is to
take effect setting forth the details of the proposed
plan; and
(7) not later than 30 days before the date the
system is to take effect, publish in the Federal
Register the details of the final plan for the special
occupational pay system.
(d) A special occupational pay system may not--
(1) provide for a waiver of any law, rule, or
regulation that could not be waived under section
4703(c); or
(2) provide a rate of basic pay for any employee in
excess of the rate payable for level V of the Executive
Schedule.
(e) Subject to subsection (d)(2), effective at the
beginning of the first applicable pay period commencing on or
after the first day of the month in which an adjustment takes
effect under section 5303 in the rates of pay under the General
Schedule, each rate of pay established under this section shall
be adjusted by such amount as the Office considers appropriate.
CHAPTER 55--PAY ADMINISTRATION
SUBCHAPTER I--GENERAL PROVISIONS
Sec.
5501. Disposition of money accruing from lapsed salaries or unused
appropriations for salaries.
5502. Unauthorized office; prohibition on use of funds.
5503. Recess appointments.
5504. Biweekly pay periods; computation of pay.
5505. Monthly pay periods; computation of pay.
5506. Computation of extra pay based on standard or daylight saving
time.
5507. Officer affidavit; condition to pay.
5508. Officer entitled to leave; effect on pay status.
5509. Appropriations.
SUBCHAPTER II--WITHHOLDING PAY
5511. Withholding pay; employees removed for cause.
5512. Withholding pay; individuals in arrears.
5513. Withholding pay; credit disallowed or charge raised for
payment.
5514. Installment deduction for indebtedness to the United States.
5515. Crediting amounts received for jury or witness service.
5516. Withholding District of Columbia income taxes.
5517. Withholding State income taxes.
5518. Deductions for State retirement systems; National Guard
employees.
5519. Crediting amounts received for certain Reserve or National
Guard service.
5520. Withholding of city or county income or employment taxes.
5520a. Garnishment of pay.
SUBCHAPTER III--ADVANCEMENT, ALLOTMENT, AND ASSIGNMENT OF PAY
5521. Definitions.
5522. Advance payments; rates; amounts recoverable.
5523. Duration of payments; rates; active service period.
5524. Review of accounts.
5524a. Advance payments for new appointees.
5525. Allotment and assignment of pay.
5526. Funds available on reimbursable basis.
5527. Regulations.
SUBCHAPTER IV--DUAL PAY AND DUAL EMPLOYMENT
5531. Definitions.
[5532. Repealed.]
5533. Dual pay from more than one position; limitations; exceptions.
5534. Dual employment and pay of Reserves and National Guardsmen.
5534a. Dual employment and pay during terminal leave from uniformed
services.
5535. Extra pay for details prohibited.
5536. Extra pay for extra services prohibited.
5537. Fees for jury and witness service.
SUBCHAPTER V--PREMIUM PAY
5541. Definitions.
5542. Overtime rates; computation.
5543. Compensatory time off.
5544. Wage-board overtime and Sunday rates; computation.
5545. Night, standby, irregular, and hazardous duty differential.
5545a. Availability pay for criminal investigators.
5545b. Pay for firefighters.
5546. Pay for Sunday and holiday work.
5546a. Differential pay for certain employees of the Federal Aviation
Administration and the Department of Defense.
5547. Limitation on premium pay.
5548. Regulations.
5549. Effect on other statutes.
[5550. Repealed.]
5550a. Compensatory time off for religious observances.
SUBCHAPTER VI--PAYMENT FOR ACCUMULATED AND ACCRUED LEAVE
5551. Lump-sum payment for accumulated and accrued leave on
separation.
5552. Lump-sum payment for accumulated and accrued leave on entering
active duty; election.
5553. Regulations.
SUBCHAPTER VII--PAYMENTS TO MISSING EMPLOYEES
5561. Definitions.
5562. Pay and allowances; continuance while in a missing status;
limitations.
5563. Allotments; continuance, suspension, initiation, resumption, or
increase while in a missing status; limitations.
5564. Travel and transportation; dependents; household and personal
effects; motor vehicles; sale of bulky items; claims for
proceeds; appropriation chargeable.
5565. Agency review.
5566. Agency determinations.
5567. Settlement of accounts.
5568. Income tax deferment.
5569. Benefits for captives.
5570. Compensation for disability or death.
SUBCHAPTER VIII--SETTLEMENT OF ACCOUNTS
5581. Definitions.
5582. Designation of beneficiary; order of precedence.
5583. Payment of money due; settlement of accounts.
5584. Claims for overpayment of pay and allowances, and of travel,
transportation and relocation expenses and allowances.
SUBCHAPTER IX--SEVERANCE PAY AND BACK PAY
[5591 to 5594. Repealed.]
5595. Severance pay.
5596. Back pay due to unjustified personnel action.
5597. Separation pay.
SUBCHAPTER I--GENERAL PROVISIONS
Sec. 5501. Disposition of money accruing from lapsed salaries or unused
appropriations for salaries
Money accruing from lapsed salaries or from unused
appropriations for salaries shall be covered into the Treasury
of the United States. An individual who violates this section
shall be removed from the service.
Sec. 5502. Unauthorized office; prohibition on use of funds
(a) Payment for services may not be made from the Treasury
of the United States to an individual acting or assuming to act
as an officer in the civil service or uniformed services in an
office which is not authorized by existing law, unless the
office is later sanctioned by law.
(b) Except as otherwise provided by statute, public money
and appropriations may not be used for pay or allowance for an
individual employed by an official of the United States retired
from active service.
Sec. 5503. Recess appointments
(a) Payment for services may not be made from the Treasury
of the United States to an individual appointed during a recess
of the Senate to fill a vacancy in an existing office, if the
vacancy existed while the Senate was in session and was by law
required to be filled by and with the advice and consent of the
Senate, until the appointee has been confirmed by the Senate.
This subsection does not apply--
(1) if the vacancy arose within 30 days before the
end of the session of the Senate;
(2) if, at the end of the session, a nomination for
the office, other than the nomination of an individual
appointed during the preceding recess of the Senate,
was pending before the Senate for its advice and
consent; or
(3) if a nomination for the office was rejected by
the Senate within 30 days before the end of the session
and an individual other than the one whose nomination
was rejected thereafter receives a recess appointment.
(b) A nomination to fill a vacancy referred to by paragraph
(1), (2), or (3) of subsection (a) of this section shall be
submitted to the Senate not later than 40 days after the
beginning of the next session of the Senate.
Sec. 5504. Biweekly pay periods; computation of pay
(a) The pay period for an employee covers two
administrative workweeks. For the purpose of this subsection,
``employee'' means--
(1) an employee in or under an Executive agency;
(2) an employee in or under the Office of the
Architect of the Capitol, the Botanic Garden, and the
Library of Congress, for whom a basic administrative
workweek is established under section 6101(a)(5) of
this title; and
(3) an individual employed by the government of the
District of Columbia;
but does not include--
(A) an employee on the Isthmus of Panama in the
service of the Panama Canal Commission; or
(B) an employee or individual excluded from the
definition of employee in section 5541(2) of this title
other than an employee or individual excluded by
section 5541(2)(xvi) of this title.
(b) When, in the case of an employee, it is necessary for
computation of pay under this subsection to convert an annual
rate of basic pay to a basic hourly, daily, weekly, or biweekly
rate, the following rules govern:
(1) To derive an hourly rate, divide the annual
rate by 2,087.
(2) To derive a daily rate, multiply the hourly
rate by the number of daily hours of service required.
(3) To derive a weekly or biweekly rate, multiply
the hourly rate by 40 or 80, as the case may be.
Rates are computed to the nearest cent, counting one-half and
over as a whole cent. For the purpose of this subsection,
``employee'' means--
(A) an employee in or under an Executive agency;
(B) an employee in or under the judicial branch;
(C) an employee in or under the Office of the
Architect of the Capitol, the Botanic Garden, and the
Library of Congress, for whom a basic administrative
workweek is established under section 6101(a)(5) of
this title; and
(D) an individual employed by the government of the
District of Columbia;
but does not include an employee or individual excluded from
the definition of employee in section 5541(2) of this title
other than an employee or individual excluded by section
5541(2)(xvi) of this title.
(c) The Office of Personnel Management may prescribe
regulations, subject to the approval of the President,
necessary for the administration of this section insofar as
this section affects employees in or under an Executive agency.
Sec. 5505. Monthly pay periods; computation of pay
The pay period for an individual in the service of the
United States whose pay is monthly or annual covers one
calendar month, and the following rules for division of time
and computation of pay for services performed govern:
(1) A month's pay is one-twelfth of a year's pay.
(2) A day's pay is one-thirtieth of a month's pay.
(3) The 31st day of a calendar month is ignored in
computing pay, except that one day's pay is forfeited
for one day's unauthorized absence on the 31st day of a
calendar month.
(4) For each day of the month elapsing before
entering the service, one day's pay is deducted from
the first month's pay of the individual.
This section does not apply to an employee whose pay is
computed under section 5504(b) of this title.
Sec. 5506. Computation of extra pay based on standard or daylight
saving time
When an employee as defined by section 2105 of this title
or an individual employed by the government of the District of
Columbia is entitled to extra pay for services performed
between or after certain named hours of the day or night, the
extra pay is computed on the basis of either standard or
daylight saving time, depending on the time observed by law,
custom, or practice where the services are performed.
Sec. 5507. Officer affidavit; condition to pay
An officer required by section 3332 of this title to file
an affidavit may not be paid until the affidavit has been
filed.
Sec. 5508. Officer entitled to leave; effect on pay status
An officer in the executive branch and an officer of the
government of the District of Columbia to whom subchapter I of
chapter 63 of this title applies are not entitled to the pay of
their offices solely because of their status as officers.
Sec. 5509. Appropriations
There are authorized to be appropriated sums necessary to
carry out the provisions of this title.
SUBCHAPTER II--WITHHOLDING PAY
Sec. 5511. Withholding pay; employees removed for cause
(a) Except as provided by subsection (b) of this section,
the earned pay of an employee removed for cause may not be
withheld or confiscated.
(b) If an employee indebted to the United States is removed
for cause, the pay accruing to the employee shall be applied in
whole or in part to the satisfaction of any claim or
indebtedness due the United States.
Sec. 5512. Withholding pay; individuals in arrears
(a) The pay of an individual in arrears to the United
States shall be withheld until he has accounted for and paid
into the Treasury of the United States all sums for which he is
liable.
(b) When pay is withheld under subsection (a) of this
section, the employing agency, on request of the individual,
his agent, or his attorney, shall report immediately to the
Attorney General the balance due; and the Attorney General,
within 60 days, shall order suit to be commenced against the
individual.
Sec. 5513. Withholding pay; credit disallowed or charge raised for
payment
When the General Accounting Office, on a statement of the
account of a disbursing or certifying official of the United
States, disallows credit or raises a charge for a payment to an
individual in or under an Executive agency otherwise entitled
to pay, the pay of the payee shall be withheld in whole or in
part until full reimbursement is made under regulations
prescribed by the head of the Executive agency from which the
payee is entitled to receive pay. This section does not repeal
or modify existing statutes relating to the collection of the
indebtedness of an accountable, certifying, or disbursing
official.
Sec. 5514. Installment deduction for indebtedness to the United States
(a)(1) When the head of an agency or his designee
determines that an employee, member of the Armed Forces or
Reserve of the Armed Forces, is indebted to the United States
for debts to which the United States is entitled to be repaid
at the time of the determination by the head of an agency or
his designee, or is notified of such a debt by the head of
another agency or his designee the amount of indebtedness may
be collected in monthly installments, or at officially
established pay intervals, by deduction from the current pay
account of the individual. The deductions may be made from
basic pay, special pay, incentive pay, retired pay, retainer
pay, or, in the case of an individual not entitled to basic
pay, other authorized pay. The amount deducted for any period
may not exceed 15 percent of disposable pay, except that a
greater percentage may be deducted upon the written consent of
the individual involved. If the individual retires or resigns,
or if his employment or period of active duty otherwise ends,
before collection of the amount of the indebtedness is
completed, deduction shall be made from subsequent payments of
any nature due the individual from the agency concerned. All
Federal agencies to which debts are owed and which have
outstanding delinquent debts shall participate in a computer
match at least annually of their delinquent debt records with
records of Federal employees to identify those employees who
are delinquent in repayment of those debts. The preceding
sentence shall not apply to any debt under the Internal Revenue
Code of 1986. Matched Federal employee records shall include,
but shall not be limited to, records of active Civil Service
employees government-wide, military active duty personnel,
military reservists, United States Postal Service employees,
employees of other government corporations, and seasonal and
temporary employees. The Secretary of the Treasury shall
establish and maintain an interagency consortium to implement
centralized salary offset computer matching, and promulgate
regulations for this program. Agencies that perform centralized
salary offset computer matching services under this subsection
are authorized to charge a fee sufficient to cover the full
cost for such services.
(2) Except as provided in paragraph (3) of this subsection,
prior to initiating any proceedings under paragraph (1) of this
subsection to collect any indebtedness of an individual, the
head of the agency holding the debt or his designee, shall
provide the individual with--
(A) a minimum of thirty days written notice,
informing such individual of the nature and amount of
the indebtedness determined by such agency to be due,
the intention of the agency to initiate proceedings to
collect the debt through deductions from pay, and an
explanation of the rights of the individual under this
subsection;
(B) an opportunity to inspect and copy Government
records relating to the debt;
(C) an opportunity to enter into a written
agreement with the agency, under terms agreeable to the
head of the agency or his designee, to establish a
schedule for the repayment of the debt; and
(D) an opportunity for a hearing on the
determination of the agency concerning the existence or
the amount of the debt, and in the case of an
individual whose repayment schedule is established
other than by a written agreement pursuant to
subparagraph (C), concerning the terms of the repayment
schedule.
A hearing, described in subparagraph (D), shall be provided if
the individual, on or before the fifteenth day following
receipt of the notice described in subparagraph (A), and in
accordance with such procedures as the head of the agency may
prescribe, files a petition requesting such a hearing. The
timely filing of a petition for hearing shall stay the
commencement of collection proceedings. A hearing under
subparagraph (D) may not be conducted by an individual under
the supervision or control of the head of the agency, except
that nothing in this sentence shall be construed to prohibit
the appointment of an administrative law judge. The hearing
official shall issue a final decision at the earliest
practicable date, but not later than sixty days after the
filing of the petition requesting the hearing.
(3) Paragraph (2) shall not apply to routine intra-agency
adjustments of pay that are attributable to clerical or
administrative errors or delays in processing pay documents
that have occurred within the four pay periods preceding the
adjustment and to any adjustment that amounts to $50 or less,
if at the time of such adjustment, or as soon thereafter as
practical, the individual is provided written notice of the
nature and the amount of the adjustment and a point of contact
for contesting such adjustment.
(4) The collection of any amount under this section shall
be in accordance with the standards promulgated pursuant to
sections 3711 and 3716-3718 of title 31 or in accordance with
any other statutory authority for the collection of claims of
the United States or any agency thereof.
(5) For purposes of this subsection--
(A) ``disposable pay'' means that part of pay of
any individual remaining after the deduction from those
earnings of any amounts required by law to be withheld;
and
(B) \1\ ``agency'' includes executive
departments and agencies, the United States
Postal Service, the Postal Rate Commission, the
United States Senate, the United States House
of Representatives, and any court, court
administrative office, or instrumentality in
the judicial or legislative branches of the
Government, and government corporations.
---------------------------------------------------------------------------
\1\ Margin so in law. Probably should be moved 2 ems to the left.
---------------------------------------------------------------------------
(b)(1) The head of each agency shall prescribe regulations,
subject to the approval of the President, to carry out this
section and section 3530(d) of title 31. Regulations prescribed
by the Secretaries of the military departments shall be uniform
for the military services insofar as practicable.
(2) For purposes of section 7117(a) of this title, no
regulation prescribed to carry out subsection (a)(2) of this
section shall be considered to be a Government-wide rule or
regulation.
(c) Subsection (a) of this section does not modify existing
statutes which provide for forfeiture of pay or allowances.
This section and section 3530(d) of title 31 do not repeal,
modify, or amend section 4837(d) or 9837(d) of title 10 or
section 1007(b), (c) of title 37.
(d) A levy pursuant to the Internal Revenue Code of 1986
shall take precedence over other deductions under this section.
Sec. 5515. Crediting amounts received for jury or witness service
An amount received by an employee as defined by section
2105 of this title (except an individual whose pay is disbursed
by the Secretary of the Senate or the Chief Administrative
Officer of the House of Representatives) or an individual
employed by the government of the District of Columbia for
service as a juror or witness during a period for which he is
entitled to leave under section 6322(a) of this title, or is
performing official duty under section 6322(b) of this title,
shall be credited against pay payable to him by the United
States or the District of Columbia with respect to that period.
Sec. 5516. Withholding District of Columbia income taxes
(a) The Secretary of the Treasury, under regulations
prescribed by the President, shall enter into an agreement with
the Mayor of the District of Columbia within 120 days of a
request for agreement from the Mayor. The agreement shall
provide that the head of each agency of the United States shall
comply with the requirements of subchapter II of chapter 15 of
title 47, District of Columbia Code, in the case of employees
of the agency who are subject to income taxes imposed by that
subchapter and whose regular place of employment is within the
District of Columbia. The agreement may not apply to pay of an
employee who is not a resident of the District of Columbia as
defined in subchapter II of chapter 15 of title 47, District of
Columbia Code. In the case of pay for service as a member of
the armed forces, the second sentence of this subsection shall
be applied by substituting ``who are residents of the District
of Columbia'' for ``whose regular place of employment is within
the District of Columbia''. For the purpose of this subsection,
``employee'' has the meaning given it by section 1551c(z) of
title 47, District of Columbia Code.
(b) This section does not give the consent of the United
States to the application of a statute which imposes more
burdensome requirements on the United States than on other
employers, or which subjects the United States or its employees
to a penalty or liability because of this section.
Sec. 5517. Withholding State income taxes
(a) When a State statute--
(1) provides for the collection of a tax either by
imposing on employers generally the duty of withholding
sums from the pay of employees and making returns of
the sums to the State, or by granting to employers
generally the authority to withhold sums from the pay
of employees if any employee voluntarily elects to have
such sums withheld; and
(2) imposes the duty or grants the authority to
withhold generally with respect to the pay of employees
who are residents of the State;
the Secretary of the Treasury, under regulations prescribed by
the President, shall enter into an agreement with the State
within 120 days of a request for agreement from the proper
State official. The agreement shall provide that the head of
each agency of the United States shall comply with the
requirements of the State withholding statute in the case of
employees of the agency who are subject to the tax and whose
regular place of Federal employment is within the State with
which the agreement is made. In the case of pay for service as
a member of the armed forces, the preceding sentence shall be
applied by substituting ``who are residents of the State with
which the agreement is made'' for ``whose regular place of
Federal employment is within the State with which the agreement
is made''.
(b) This section does not give the consent of the United
States to the application of a statute which imposes more
burdensome requirements on the United States than on other
employers, or which subjects the United States or its employees
to a penalty or liability because of this section. An agency of
the United States may not accept pay from a State for services
performed in withholding State income taxes from the pay of the
employees of the agency.
(c) For the purpose of this section, ``State'' means a
State, territory, possession, or commonwealth of the United
States.
(d) For the purpose of this section and sections 5516 and
5520, the terms ``serve as a member of the armed forces'' and
``service as a member of the Armed Forces'' include--
(1) participation in exercises or the performance
of duty under section 502 of title 32, United States
Code, by a member of the National Guard; and
(2) participation in scheduled drills or training
periods, or service on active duty for training, under
section 10147 of title 10, United States Code, by a
member of the Ready Reserve.
Sec. 5518. Deductions for State retirement systems; National Guard
employees
When--
(1) a State statute provides for the payment of
employee contributions to a State employee retirement
system or to a State sponsored plan providing
retirement, disability, or death benefits, by
withholding sums from the pay of State employees and
making returns of the sums withheld to State
authorities or to the person or organization designated
by State authorities to receive sums withheld for the
program; and
(2) individuals employed by the Army National Guard
and the Air National Guard, except employees of the
National Guard Bureau, are eligible for membership in a
State employee retirement system or other State
sponsored plan;
the Secretary of Defense, under regulations prescribed by the
President, shall enter into an agreement with the State within
120 days of a request for agreement from the proper State
official. The agreement shall provide that the Department of
Defense shall comply with the requirements of State statute as
to the individuals named by paragraph (2) of this section who
are eligible for membership in the State employee retirement
system. The disbursing officials paying these individuals shall
withhold and pay to the State employee retirement system or to
the person or organization designated by State authorities to
receive sums withheld for the program the employee
contributions for these individuals. For the purpose of this
section, ``State'' means a State or territory or possession of
the United States including the Commonwealth of Puerto Rico.
Sec. 5519. Crediting amounts received for certain Reserve or National
Guard service
An amount (other than a travel, transportation, or per diem
allowance) received by an employee or individual for military
service as a member of the Reserve or National Guard for a
period for which he is granted military leave under section
6323(b) or (c) shall be credited against the pay payable to the
employee or individual with respect to his civilian position
for that period.
Sec. 5520. Withholding of city or county income or employment taxes
(a) When a city or county ordinance--
(1) provides for the collection of a tax by
imposing on employers generally the duty of withholding
sums from the pay of employees and making returns of
the sums to a designated city or county officer,
department, or instrumentality; and
(2) imposes the duty to withhold generally on the
payment of compensation earned within the jurisdiction
of the city or county in the case of employees whose
regular place of employment is within such
jurisdiction;
the Secretary of the Treasury, under regulations prescribed by
the President, shall enter into an agreement with the city or
county within 120 days of a request for agreement by the proper
city or county official. The agreement shall provide that the
head of each agency of the United States shall comply with the
requirements of the city or county ordinance in the case of any
employee of the agency who is subject to the tax and (i) whose
regular place of Federal employment is within the jurisdiction
of the city or county with which the agreement is made or (ii)
is a resident of such city or county. The agreement may not
apply to pay for service as a member of the Armed Forces (other
than service described in section 5517(d) of this title). The
agreement may not permit withholding of a city or county tax
from the pay of an employee who is not a resident of, or whose
regular place of Federal employment is not within, the State in
which that city or county is located unless the employee
consents to the withholding.
(b) This section does not give the consent of the United
States to the application of an ordinance which imposes more
burdensome requirements on the United States than on other
employers or which subjects the United States or its employees
to a penalty or liability because of this section. An agency of
the United States may not accept pay from a city or county for
services performed in withholding city or county income or
employment taxes from the pay of employees of the agency.
(c) For the purpose of this section--
(1) ``city'' means any unit of general local
government which--
(A) is classified as a municipality by the
Bureau of the Census, or
(B) is a town or township which, in the
determination of the Secretary of the
Treasury--
(i) possesses powers and performs
functions comparable to those
associated with municipalities,
(ii) is closely settled, and
(iii) contains within its
boundaries no incorporated places, as
defined by the Bureau of the Census,
within the political boundaries of which 500 or more
persons are regularly employed by all agencies of the
Federal Government;
(2) ``county'' means any unit of local general
government which is classified as a county by the
Bureau of the Census and within the political
boundaries of which 500 or more persons are regularly
employed by all agencies of the Federal Government;
(3) ``ordinance'' means an ordinance, order,
resolution, or similar instrument which is duly adopted
and approved by a city or county in accordance with the
constitution and statutes of the State in which it is
located and which has the force of law within such city
or county; and
(4) ``agency'' means--
(A) an Executive agency;
(B) the judicial branch; and
(C) the United States Postal Service.
Sec. 5520a. Garnishment of pay
(a) For purposes of this section--
(1) ``agency'' means each agency of the Federal
Government, including--
(A) an executive agency, except for the
General Accounting Office;
(B) the United States Postal Service and
the Postal Rate Commission;
(C) any agency of the judicial branch of
the Government; and
(D) any agency of the legislative branch of
the Government, including the General
Accounting Office, each office of a Member of
Congress, a committee of the Congress, or other
office of the Congress;
(2) ``employee'' means an employee of an agency
(including a Member of Congress as defined under
section 2106);
(3) ``legal process'' means any writ, order,
summons, or other similar process in the nature of
garnishment, that--
(A) is issued by a court of competent
jurisdiction within any State, territory, or
possession of the United States, or an
authorized official pursuant to an order of
such a court or pursuant to State or local law;
and
(B) orders the employing agency of such
employee to withhold an amount from the pay of
such employee, and make a payment of such
withholding to another person, for a
specifically described satisfaction of a legal
debt of the employee, or recovery of attorney's
fees, interest, or court costs; and
(4) ``pay'' means--
(A) basic pay, premium pay paid under
subchapter V, any payment received under
subchapter VI, VII, or VIII, severance and back
pay paid under subchapter IX, sick pay,
incentive pay, and any other compensation paid
or payable for personal services, whether such
compensation is denominated as wages, salary,
commission, bonus pay or otherwise; and
(B) does not include awards for making
suggestions.
(b) Subject to the provisions of this section and the
provisions of section 303 of the Consumer Credit Protection Act
(15 U.S.C. 1673) pay from an agency to an employee is subject
to legal process in the same manner and to the same extent as
if the agency were a private person.
(c)(1) Service of legal process to which an agency is
subject under this section may be accomplished by certified or
registered mail, return receipt requested, or by personal
service, upon--
(A) the appropriate agent designated for receipt of
such service of process pursuant to the regulations
issued under this section; or
(B) the head of such agency, if no agent has been
so designated.
(2) Such legal process shall be accompanied by sufficient
information to permit prompt identification of the employee and
the payments involved.
(d) Whenever any person, who is designated by law or
regulation to accept service of process to which an agency is
subject under this section, is effectively served with any such
process or with interrogatories, such person shall respond
thereto within thirty days (or within such longer period as may
be prescribed by applicable State law) after the date effective
service thereof is made, and shall, as soon as possible but not
later than fifteen days after the date effective service is
made, send written notice that such process has been so served
(together with a copy thereof) to the affected employee at his
or her duty station or last-known home address.
(e) No employee whose duties include responding to
interrogatories pursuant to requirements imposed by this
section shall be subject to any disciplinary action or civil or
criminal liability or penalty for, or on account of, any
disclosure of information made by such employee in connection
with the carrying out of any of such employee's duties which
pertain directly or indirectly to the answering of any such
interrogatory.
(f) Agencies affected by legal process under this section
shall not be required to vary their normal pay and disbursement
cycles in order to comply with any such legal process.
(g) Neither the United States, an agency, nor any
disbursing officer shall be liable with respect to any payment
made from payments due or payable to an employee pursuant to
legal process regular on its face, provided such payment is
made in accordance with this section and the regulations issued
to carry out this section. In determining the amount of any
payment due from, or payable by, an agency to an employee,
there shall be excluded those amounts which would be excluded
under section 462(g) of the Social Security Act (42 U.S.C.
662(g)).
(h)(1) Subject to the provisions of paragraph (2), if an
agency is served under this section with more than one legal
process with respect to the same payments due or payable to an
employee, then such payments shall be available, subject to
section 303 of the Consumer Credit Protection Act (15 U.S.C.
1673), to satisfy such processes in priority based on the time
of service, with any such process being satisfied out of such
amounts as remain after satisfaction of all such processes
which have been previously served.
(2) A legal process to which an agency is subject under
section 459 of the Social Security Act (42 U.S.C. 659) for the
enforcement of the employee's legal obligation to provide child
support or make alimony payments, shall have priority over any
legal process to which an agency is subject under this section.
(i) The provisions of this section shall not modify or
supersede the provisions of section 459 of the Social Security
Act (42 U.S.C. 659) concerning legal process brought for the
enforcement of an individual's legal obligations to provide
child support or make alimony payments.
(j)(1) Regulations implementing the provisions of this
section shall be promulgated--
(A) by the President or his designee for each
executive agency, except with regard to employees of
the United States Postal Service, the President or, at
his discretion, the Postmaster General shall promulgate
such regulations;
(B) jointly by the President pro tempore of the
Senate and the Speaker of the House of Representatives,
or their designee, for the legislative branch of the
Government; and
(C) by the Chief Justice of the United States or
his designee for the judicial branch of the Government.
(2) Such regulations shall provide that an agency's
administrative costs in executing a garnishment action may be
added to the garnishment, and that the agency may retain costs
recovered as offsetting collections.
(k)(1) No later than 180 days after the date of the
enactment of this Act, the Secretaries of the Executive
departments concerned shall promulgate regulations to carry out
the purposes of this section with regard to members of the
uniformed services.
(2) Such regulations shall include provisions for--
(A) the involuntary allotment of the pay of a
member of the uniformed services for indebtedness owed
a third party as determined by the final judgment of a
court of competent jurisdiction, and as further
determined by competent military or executive
authority, as appropriate, to be in compliance with the
procedural requirements of the Soldiers' and Sailors'
Civil Relief Act of 1940 (50 App. U.S.C. 501 et seq.);
and
(B) consideration for the absence of a member of
the uniformed service from an appearance in a judicial
proceeding resulting from the exigencies of military
duty.
(3) The Secretaries of the Executive departments concerned
shall promulgate regulations under this subsection that are, as
far as practicable, uniform for all of the uniformed services.
The Secretary of Defense shall consult with the Secretary of
Transportation with regard to the promulgation of such
regulations that might affect members of the Coast Guard when
the Coast Guard is operating as a service in the Navy.
SUBCHAPTER III--ADVANCEMENT, ALLOTMENT, AND ASSIGNMENT OF PAY
Sec. 5521. Definitions
For the purpose of this subchapter--
(1) ``agency'' means--
(A) an Executive agency;
(B) the judicial branch;
(C) the Library of Congress;
(D) the Government Printing Office; and
(E) the government of the District of
Columbia;
(2) ``employee'' means an individual employed in or
under an agency;
(3) ``head of each agency'' means--
(A) the Director of the Administrative
Office of the United States Courts with respect
to the judicial branch; and
(B) the Mayor of the District of Columbia
with respect to the government of the District
of Columbia; and
(4) ``United States'', when used in a geographical
sense, means the several States and the District of
Columbia.
Sec. 5522. Advance payments; rates; amounts recoverable
(a) The head of each agency may provide for the advance
payment of the pay, allowances, and differentials, or any of
them, covering a period of not more than 30 days, to or for the
account of each employee of the agency (or, under emergency
circumstances and on a reimbursable basis, an employee of
another agency) whose departure (or that of his dependents or
immediate family, as the case may be) from a place inside or
outside the United States is officially authorized or ordered--
(1) from a place outside the United States from
which the Secretary of State determines it is in the
national interest to require the departure of some or
all employees, their dependents, or both; or
(2) from any place where there is imminent danger
to the life of the employee or the lives of the
dependents or immediate family of the employee.
(b) Subject to adjustment of the account of an employee
under section 5524 of this title and other applicable statute,
the advance payment of pay, allowances, and differentials is at
rates currently authorized with respect to the employee on the
date the advance payment is made under agency procedures
governing advance payments under this subsection. The rates so
authorized may not exceed the rates to which the employee was
entitled immediately before issuance of the departure order.
(c) An advance of funds under subsection (a) of this
section is recoverable by the Government of the United States
or the government of the District of Columbia, as the case may
be, from the employee or his estate by--
(1) setoff against accrued pay, amount of
retirement credit, or other amount due to the employee
from the Government of the United States or the
government of the District of Columbia; and
(2) such other method as is provided by law.
The head of the agency concerned may waive in whole or in part
a right of recovery of an advance of funds under subsection (a)
of this section, if it is shown that the recovery would be
against equity and good conscience or against the public
interest.
Sec. 5523. Duration of payments; rates; active service period
(a) The head of each agency may provide for--
(1) the payment of monetary amounts covering a
period of not more than 60 days to or for the account
of each employee of the agency (or, under emergency
circumstances and on a reimbursable basis, an employee
of another agency) whose departure (or that of the
employee's dependents or immediate family, as the case
may be) is authorized or ordered under section 5522(a);
and
(2) the termination of payment of the monetary
amounts.
The President, with respect to the Executive agencies, may
extend the 60-day period for not more than 120 additional days
if he determines that the extension of the period is in the
interest of the United States.
(b) Subject to adjustment of the account of an employee
under section 5524 of this title and other applicable statute,
each payment under this section is at rates of pay, allowances,
and differentials, or any of them, currently authorized with
respect to the employee on the date payment is made under
agency procedures governing payments under this section. The
rates so authorized may not exceed the rates to which the
employee was entitled immediately before issuance of the
departure order. An employee in an Executive agency may be
granted such additional allowance payments as the President
determines necessary to offset the direct added expenses
incident to the departure.
(c) Each period for which payment of amounts is made under
this section to or for the account of an employee is deemed,
for all purposes with respect to the employee, a period of
active service, without break in service, performed by the
employee in the employment of the Government of the United
States or the government of the District of Columbia.
Sec. 5524. Review of accounts
The head of each agency shall provide for--
(1) the review of the account of each employee of
the agency in receipt of payments under section 5522 or
5523 of this title, or both, as the case may be; and
(2) the adjustment of the amounts of the payments
on the basis of--
(A) the rates of pay, allowances, and
differentials to which the employee would have
been entitled under applicable statute other
than this subchapter for the respective periods
covered by the payments, if he had performed
active service under the terms of his
appointment during each period in the position
he held immediately before the issuance of the
applicable evacuation order; and
(B) such additional amounts as the employee
is authorized to receive in accordance with a
determination of the President under section
5523(b) of this title.
Sec. 5524a. Advance payments for new appointees
(a) The head of each agency may provide for the advance
payment of basic pay, covering not more than 2 pay periods, to
any individual who is newly appointed to a position in the
agency.
(b)(1) Subject to adjustment of the account of an employee
under paragraph (2) and other applicable statutes, the advance
payment of basic pay shall be made, under agency procedures
governing advance payments under this section, at the initial
rate of basic pay to be payable to the employee upon the
commencement of service in the position to which appointed.
(2) The head of each agency shall provide for--
(A) the review of the account of each employee of
the agency in receipt of any payment under this
section; and
(B) the adjustment of the amount of any such
payment on the basis of the rate of basic pay to which
the employee would have been entitled under applicable
statute other than this section for the respective
periods covered by the payments, if the employee had
performed active service under the terms of such
employee's appointment during each period in the
position to which appointed.
(c) An advance payment under this section is recoverable by
the Government of the United States or the government of the
District of Columbia, as the case may be, from the employees or
such employee's estate by--
(1) setoff against accrued pay, amount of
retirement credit, or other amount due to the employee
from the Government of the United States or the
government of the District of Columbia; and
(2) such other method as is provided by law.
The head of the agency concerned may waive in whole or in part
a right of recovery of an advance payment under this section if
it is shown that the recovery would be against equity and good
conscience or against the public interest.
Sec. 5525. Allotment and assignment of pay
The head of each agency may establish procedures under
which each employee of the agency is permitted to make
allotments and assignments of amounts out of his pay for such
purpose as the head of the agency considers appropriate.
Sec. 5526. Funds available on reimbursable basis
Funds available to an agency for payment of pay,
allowances, and differentials to or for the accounts of
employees of the agency are available on a reimbursable basis
for payment of pay, allowances, and differentials to or for the
accounts of employees of another agency under this subchapter.
Sec. 5527. Regulations
(a) To the extent practicable in the public interest, the
President shall coordinate the policies and procedures of the
respective Executive agencies under this subchapter.
(b) The President, with respect to the Executive agencies,
the head of the agency concerned, with respect to the
appropriate agency outside the executive branch, and the
District of Columbia Council, with respect to the government of
the District of Columbia, shall prescribe and issue, or provide
for the formulation and issuance of, regulations necessary and
appropriate to carry out the provisions, accomplish the
purposes, and govern the administration of this subchapter.
(c) The head of each Executive agency may prescribe and
issue regulations, not inconsistent with the regulations of the
President issued under subsection (b) of this section,
necessary and appropriate to carry out his functions under this
subchapter.
SUBCHAPTER IV--DUAL PAY AND DUAL EMPLOYMENT
Sec. 5531. Definitions
For the purpose of section 5533 of this title--
(1) ``member'' has the meaning given such term by
section 101(23) of title 37;
(2) ``position'' means a civilian office or
position (including a temporary, part-time, or
intermittent position), appointive or elective, in the
legislative, executive, or judicial branch of the
Government of the United States (including a Government
corporation and a nonappropriated fund instrumentality
under the jurisdiction of the armed forces) or in the
government of the District of Columbia;
(3) ``retired or retainer pay'' means retired pay,
as defined in section 8311(3) of this title, determined
without regard to subparagraphs (B) through (D) of such
section 8311(3); except that such term does not include
an annuity payable to an eligible beneficiary of a
member or former member of a uniformed service under
chapter 73 of title 10;
(4) ``agency in the legislative branch'' means the
General Accounting Office, the Government Printing
Office, the Library of Congress, the Office of
Technology Assessment, the Office of the Architect of
the Capitol, the United States Botanic Garden, and the
Congressional Budget Office;
(5) ``employee of the House of Representatives''
means a congressional employee whose pay is disbursed
by the Chief Administrative Officer of the House of
Representatives;
(6) ``employee of the Senate'' means a
congressional employee whose pay is disbursed by the
Secretary of the Senate; and
(7) ``congressional employee'' has the meaning
given that term by section 2107 of this title,
excluding an employee of an agency in the legislative
branch.
[Sec. 5532. Repealed P.L. 106-65, Sec. 651(a), Oct. 5, 1999, 113 Stat.
664.]
Sec. 5533. Dual pay from more than one position; limitations;
exceptions
(a) Except as provided by subsections (b), (c), and (d) of
this section, an individual is not entitled to receive basic
pay from more than one position for more than an aggregate of
40 hours of work in one calendar week (Sunday through
Saturday).
(b) Except as otherwise provided by subsection (c) of this
section, the Office of Personnel Management, subject to the
supervision and control of the President, may prescribe
regulations under which exceptions may be made to the
restrictions in subsection (a) of this section when appropriate
authority determines that the exceptions are warranted because
personal services otherwise cannot be readily obtained.
(c)(1) Unless otherwise authorized by law and except as
otherwise provided by paragraph (2) or (4) of this subsection,
appropriated funds are not available for payment to an
individual of pay from more than one position if the pay of one
of the positions is paid by the Secretary of the Senate or the
Chief Administrative Officer of the House of Representatives,
or one of the positions is under the Office of the Architect of
the Capitol, and if the aggregate gross pay from the positions
exceeds $7,724 a year ($10,540, in the case of pay disbursed by
the Secretary of the Senate).
(2) Notwithstanding paragraph (1) of this subsection,
appropriated funds are not available for payment to an
individual of pay from more than one position, for each of
which the pay is disbursed by the Chief Administrative Officer
of the House of Representatives, if the aggregate gross pay
from those positions exceeds the maximum per annum gross rate
of pay authorized to be paid to an employee out of the clerk
hire allowance of a Member of the House.
(3) For the purposes of this subsection, ``gross pay''
means the annual rate of pay (or equivalent thereof in the case
of an individual paid on other than an annual basis) received
by an individual.
(4) Paragraph (1) of this subsection does not apply to pay
on a when-actually-employed basis received from more than one
consultant or expert position if the pay is not received for
the same day.
(d) Subsection (a) of this section does not apply to--
(1) pay on a when-actually-employed basis received
from more than one consultant or expert position if the
pay is not received for the same hours of the same day;
(2) pay consisting of fees paid on other than a
time basis;
(3) pay received by a teacher of the public schools
of the District of Columbia for employment in a
position during the summer vacation period;
(4) pay paid by the Tennessee Valley Authority to
an employee performing part-time or intermittent work
in addition to his normal duties when the Authority
considers it to be in the interest of efficiency and
economy;
(5) pay received by an individual holding a
position--
(A) the pay of which is paid by the
Secretary of the Senate or the Chief
Administrative Officer of the House of
Representatives; or
(B) under the Architect of the Capitol;
(6) pay paid by the United States Coast Guard to an
employee occupying a part-time position of lamplighter;
and
(7) pay within the purview of any of the following
statutes:
(A) section 162 of title 2;
(B) section 23(b) of title 13;
(C) section 327 of title 15;
(D) section 907 of title 20;
(E) section 873 of title 33; or
(F) section 631 or 631a of title 31,
District of Columbia Code.
[(G) Repealed. Pub. L. 96-70, title III,
Sec. 3302(e)(8), Sept. 27, 1979, 93 Stat. 498.]
(e)(1) This section does not apply to an individual
employed under sections 174j-1 to 174j-7 or 174k of title 40.
(2) Subsection (c) of this section does not apply to pay
received by a teacher of the public schools of the District of
Columbia for employment in a position during the summer
vacation period.
Sec. 5534. Dual employment and pay of Reserves and National Guardsmen
A Reserve of the armed forces or member of the National
Guard may accept a civilian office or position under the
Government of the United States or the government of the
District of Columbia, and he is entitled to receive the pay of
that office or position in addition to pay and allowances as a
Reserve or member of the National Guard.
Sec. 5534a. Dual employment and pay during terminal leave from
uniformed services
A member of a uniformed service who has performed active
service and who is on terminal leave pending separation from,
or release from active duty in, that service under honorable
conditions may accept a civilian office or position in the
Government of the United States, its territories or
possessions, or the government of the District of Columbia, and
he is entitled to receive the pay of that office or position in
addition to pay and allowances from the uniformed service for
the unexpired portion of the terminal leave.
Sec. 5535. Extra pay for details prohibited
(a) An officer may not receive pay in addition to the pay
for his regular office for performing the duties of a vacant
office as authorized by sections 3345-3347 of this title.
(b) An employee may not receive--
(1) additional pay or allowances for performing the
duties of another employee; or
(2) pay in addition to the regular pay received for
employment held before his appointment or designation
as acting for or instead of an occupant of another
position or employment.
This subsection does not prevent a regular and permanent
appointment by promotion from a lower to a higher grade of
employment.
Sec. 5536. Extra pay for extra services prohibited
An employee or a member of a uniformed service whose pay or
allowance is fixed by statute or regulation may not receive
additional pay or allowance for the disbursement of public
money or for any other service or duty, unless specifically
authorized by law and the appropriation therefor specifically
states that it is for the additional pay or allowance.
Sec. 5537. Fees for jury and witness service
(a) An employee as defined by section 2105 of this title
(except an individual whose pay is disbursed by the Secretary
of the Senate or the Chief Administrative Officer of the House
of Representatives) or an individual employed by the government
of the District of Columbia may not receive fees for service--
(1) as a juror in a court of the United States or
the District of Columbia; or
(2) as a witness on behalf of the United States or
the District of Columbia.
(b) An official of a court of the United States or the
District of Columbia may not receive witness fees for
attendance before a court, commissioner, or magistrate where he
is officiating.
(c) For the purpose of this section, ``court of the United
States'' has the meaning given it by section 451 of title 28
and includes the District Court of Guam and the District Court
of the Virgin Islands.
SUBCHAPTER V--PREMIUM PAY
Sec. 5541. Definitions
For the purpose of this subchapter--
(1) ``agency'' means--
(A) an Executive agency;
(B) a military department;
(C) an agency in the judicial branch;
(D) the Library of Congress;
(E) the Botanic Garden;
(F) the Office of the Architect of the
Capitol; and
(G) the government of the District of
Columbia;
(2) ``employee'' means--
(A) an employee in or under an Executive
agency;
(B) an individual employed by the
government of the District of Columbia; and
(C) an employee in or under the judicial
branch, the Library of Congress, the Botanic
Garden, and the Office of the Architect of the
Capitol, who occupies a position subject to
chapter 51 and subchapter III of chapter 53 of
this title;
but does not include--
(i) a justice or judge of the United
States;
(ii) the head of an agency other than the
government of the District of Columbia;
(iii) a teacher, school official, or
employee of the Board of Education of the
District of Columbia, whose pay is fixed under
chapter 15 of title 31, District of Columbia
Code;
(iv) a member of--
(I) the Metropolitan Police or the
Fire Department of the District of
Columbia; or
(II) a member of the United States
Secret Service Uniformed Division, a
member of the United States Park
Police, other than for purposes of
section 5545(a) and 5546;
(v) a student-employee as defined by
section 5351 of this title;
[(vi) Repealed. Pub. L. 91-375,
Sec. 6(c)(16), Aug. 12, 1970, 84 Stat. 776;]
(vii) an employee outside the continental
United States or in Alaska who is paid in
accordance with local native prevailing wage
rates for the area in which employed;
(viii) an employee of the Tennessee Valley
Authority;
(ix) an individual to whom section 1291(a)
of title 50, appendix, applies;
(x) an employee of a Federal land bank, a
Federal intermediate credit bank, or a bank for
cooperatives;
(xi) an employee whose pay is fixed and
adjusted from time to time in accordance with
prevailing rates under subchapter IV of chapter
53 of this title, or by a wage board or similar
administrative authority serving the same
purpose, except as provided by section 5544 of
this title;
(xii) an employee of the Transportation
Corps of the Army on a vessel operated by the
United States, a vessel employee of the
Environmental Science Services Administration,
or a vessel employee of the Department of the
Interior;
(xiii) a ``teacher'' or an individual
holding a ``teaching position'' as defined by
section 901 of title 20;
(xiv) a Foreign Service officer;
(xv) a member of the Senior Foreign
Service;
(xvi) member of the Senior Executive
Service; or
(xvii) a member of the Federal Bureau of
Investigation and Drug Enforcement
Administration Senior Executive Service; and
(3) ``law enforcement officer'' means an employee
who--
(A) is a law enforcement officer within the
meaning of section 8331(20) or 8401(17);
(B) in the case of an employee who holds a
supervisory or administrative position and is
subject to subchapter III of chapter 83, but
who does not qualify to be considered a law
enforcement officer within the meaning of
section 8331(20), would so qualify if such
employee had transferred directly to such
position after serving as a law enforcement
officer within the meaning of such section;
(C) in the case of an employee who holds a
supervisory or administrative position and is
subject to chapter 84, but who does not qualify
to be considered a law enforcement officer
within the meaning of section 8401(17), would
so qualify if such employee had transferred
directly to such position after performing
duties described in section 8401(17) (A) and
(B) for at least 3 years; and
(D) in the case of an employee who is not
subject to subchapter III of chapter 83 or
chapter 84--
(i) holds a position that the
Office of Personnel Management
determines would satisfy subparagraph
(A), (B), or (C) if the employee were
subject to subchapter III of chapter 83
or chapter 84; or
(ii) is a special agent in the
Diplomatic Security Service.
Sec. 5542. Overtime rates; computation
(a) For full-time, part-time and intermittent tours of
duty, hours of work officially ordered or approved in excess of
40 hours in an administrative workweek, or (with the exception
of an employee engaged in professional or technical engineering
or scientific activities for whom the first 40 hours of duty in
an administrative workweek is the basic workweek and an
employee whose basic pay exceeds the minimum rate for GS-10
(including any applicable locality-based comparability payment
under section 5304 or similar provision of law and any
applicable special rate of pay under section 5305 or similar
provision of law) for whom the first 40 hours of duty in an
administrative workweek is the basic workweek) in excess of 8
hours in a day, performed by an employee are overtime work and
shall be paid for, except as otherwise provided by this
subchapter, at the following rates:
(1) For an employee whose basic pay is at a rate
which does not exceed the minimum rate of basic pay for
GS-10 (including any applicable locality-based
comparability payment under section 5304 or similar
provision of law and any applicable special rate of pay
under section 5305 or similar provision of law), the
overtime hourly rate of pay is an amount equal to one
and one-half times the hourly rate of basic pay of the
employee, and all that amount is premium pay.
(2) For an employee whose basic pay is at a rate
which exceeds the minimum rate of basic pay for GS-10
(including any applicable locality-based comparability
payment under section 5304 or similar provision of law
and any applicable special rate of pay under section
5305 or similar provision of law), the overtime hourly
rate of pay is an amount equal to one and one-half
times the hourly rate of the minimum rate of basic pay
for GS-10 (including any applicable locality-based
comparability payment under section 5304 or similar
provision of law and any applicable special rate of pay
under section 5305 or similar provision of law), and
all that amount is premium pay.
(3) Notwithstanding paragraphs (1) and (2) of this
subsection for an employee of the Department of
Transportation who occupies a nonmanagerial position in
GS-14 or under and, as determined by the Secretary of
Transportation,
(A) the duties of which are critical to the
immediate daily operation of the air traffic
control system, directly affect aviation
safety, and involve physical or mental strain
or hardship;
(B) in which overtime work is therefore
unusually taxing; and
(C) in which operating requirements cannot
be met without substantial overtime work;
the overtime hourly rate of pay is an amount equal to
one and one-half times the hourly rate of basic pay of
the employee, and all that amount is premium pay.
(4) Notwithstanding paragraph (2) of this
subsection, for an employee who is a law enforcement
officer, and whose basic pay is at a rate which exceeds
the minimum rate of basic pay for GS-10 (including any
applicable locality-based comparability payment under
section 5304 or similar provision of law and any
applicable special rate of pay under section 5305 or
similar provision of law), the overtime hourly rate of
pay is an amount equal to the greater of--
(A) one and one-half times the minimum
hourly rate of basic pay for GS-10 (including
any applicable locality-based comparability
payment under section 5304 or similar provision
of law and any applicable special rate of pay
under section 5305 or similar provision of
law); or
(B) the hourly rate of basic pay of the
employee,
and all that amount is premium pay.
(5) Notwithstanding paragraphs (1) and (2), for an
employee of the Department of the Interior or the
United States Forest Service in the Department of
Agriculture engaged in emergency wildland fire
suppression activities, the overtime hourly rate of pay
is an amount equal to one and one-half times the hourly
rate of basic pay of the employee, and all that amount
is premium pay.
(b) For the purpose of this subchapter--
(1) unscheduled overtime work performed by an
employee on a day when work was not scheduled for him,
or for which he is required to return to his place of
employment, is deemed at least 2 hours in duration; and
(2) time spent in a travel status away from the
official-duty station of an employee is not hours of
employment unless--
(A) the time spent is within the days and
hours of the regularly scheduled administrative
workweek of the employee, including regularly
scheduled overtime hours; or
(B) the travel (i) involves the performance
of work while traveling, (ii) is incident to
travel that involves the performance of work
while traveling, (iii) is carried out under
arduous conditions, or (iv) results from an
event which could not be scheduled or
controlled administratively, including travel
by an employee to such an event and the return
of such employee from such event to his or her
official-duty station.
(c) Subsection (a) shall not apply to an employee who is
subject to the overtime pay provisions of section 7 of the Fair
Labor Standards Act of 1938. In the case of an employee who
would, were it not for the preceding sentence, be subject to
this section, the Office of Personnel Management shall by
regulation prescribe what hours shall be deemed to be hours of
work and what hours of work shall be deemed to be overtime
hours for the purpose of such section 7 so as to ensure that no
employee receives less pay by reason of the preceding sentence.
(d) In applying subsection (a) of this section with respect
to any criminal investigator who is paid availability pay under
section 5545a--
(1) such investigator shall be compensated under
such subsection (a), at the rates there provided, for
overtime work which is scheduled in advance of the
administrative workweek--
(A) in excess of 10 hours on a day during
such investigator's basic 40 hour workweek; or
(B) on a day outside such investigator's
basic 40 hour workweek; and
(2) such investigator shall be compensated for all
other overtime work under section 5545a.
(e) Notwithstanding subsection (d)(1) of this section, all
hours of overtime work scheduled in advance of the
administrative workweek shall be compensated under subsection
(a) if that work involves duties as authorized by section
3056(a) of title 18 or section 37(a)(3) of the State Department
Basic Authorities Act of 1956, and if the investigator
performs, on that same day, at least 2 hours of overtime work
not scheduled in advance of the administrative workweek.
(f) In applying subsection (a) of this section with respect
to a firefighter who is subject to section 5545b--
(1) such subsection shall be deemed to apply to
hours of work officially ordered or approved in excess
of 106 hours in a biweekly pay period, or, if the
agency establishes a weekly basis for overtime pay
computation, in excess of 53 hours in an administrative
workweek; and
(2) the overtime hourly rate of pay is an amount
equal to one and one-half times the hourly rate of
basic pay under section 5545b (b)(1)(A) or (c)(1)(B),
as applicable, and such overtime hourly rate of pay may
not be less than such hourly rate of basic pay in
applying the limitation on the overtime rate provided
in paragraph (2) of such subsection (a).
Sec. 5543. Compensatory time off
(a) The head of an agency may--
(1) on request of an employee, grant the employee
compensatory time off from his scheduled tour of duty
instead of payment under section 5542 or section 7 of
the Fair Labor Standards Act of 1938 for an equal
amount of time spent in irregular or occasional
overtime work; and
(2) provide that an employee whose rate of basic
pay is in excess of the maximum rate of basic pay for
GS-10 (including any applicable locality-based
comparability payment under section 5304 or similar
provision of law and any applicable special rate of pay
under section 5305 or similar provision of law) shall
be granted compensatory time off from his scheduled
tour of duty equal to the amount of time spent in
irregular or occasional overtime work instead of being
paid for that work under section 5542 of this title.
(b) The head of an agency may, on request of an employee,
grant the employee compensatory time off from the employee's
scheduled tour of duty instead of payment under section 5544 or
section 7 of the Fair Labor Standards Act of 1938 for an equal
amount of time spent in irregular or occasional overtime work.
An agency head may not require an employee to be compensated
for overtime work with an equivalent amount of compensatory
time-off from the employee's tour of duty.
(c) The Architect of the Capitol may grant an employee paid
on an annual basis compensatory time off from duty instead of
overtime pay for overtime work.
Sec. 5544. Wage-board overtime and Sunday rates; computation
(a) An employee whose pay is fixed and adjusted from time
to time in accordance with prevailing rates under section 5343
or 5349 of this title, or by a wage board or similar
administrative authority serving the same purpose, is entitled
to overtime pay for overtime work in excess of 8 hours a day or
40 hours a week. However, an employee subject to this
subsection who regularly is required to remain at or within the
confines of his post of duty in excess of 8 hours a day in a
standby or on-call status is entitled to overtime pay only for
hours of duty, exclusive of eating and sleeping time, in excess
of 40 a week. The overtime hourly rate of pay is computed as
follows:
(1) If the basic rate of pay of the employee is
fixed on a basis other than an annual or monthly basis,
multiply the basic hourly rate of pay by not less than
one and one-half.
(2) If the basic rate of pay of the employee is
fixed on an annual basis, divide the basic annual rate
of pay by 2,087, and multiply the quotient by one and
one-half.
(3) If the basic rate of pay of the employee is
fixed on a monthly basis, multiply the basic monthly
rate of pay by 12 to derive a basic annual rate of pay,
divide the basic annual rate of pay by 2,087, and
multiply the quotient by one and one-half.
An employee subject to this subsection whose regular work
schedule includes an 8-hour period of service a part of which
is on Sunday is entitled to additional pay at the rate of 25
percent of his hourly rate of basic pay for each hour of work
performed during that 8-hour period of service. For employees
serving outside the United States in areas where Sunday is a
routine workday and another day of the week is officially
recognized as the day of rest and worship, the Secretary of
State may designate the officially recognized day of rest and
worship as the day with respect to which the preceding sentence
shall apply instead of Sunday. Time spent in a travel status
away from the official duty station of an employee subject to
this subsection is not hours of work unless the travel (i)
involves the performance of work while traveling, (ii) is
incident to travel that involves the performance of work while
traveling, (iii) is carried out under arduous conditions, or
(iv) results from an event which could not be scheduled or
controlled administratively. The first and third sentences of
this subsection shall not be applicable to an employee who is
subject to the overtime pay provisions of section 7 of the Fair
Labor Standards Act of 1938. In the case of an employee who
would, were it not for the preceding sentence, be subject to
the first and third sentences of this subsection, the Office of
Personnel Management shall by regulation prescribe what hours
shall be deemed to be hours of work and what hours of work
shall be deemed to be overtime hours for the purpose of such
section 7 so as to ensure that no employee receives less pay by
reason of the preceding sentence.
(b) An employee under the Office of the Architect of the
Capitol who is paid on a daily or hourly basis and who is not
subject to chapter 51 and subchapter III of chapter 53 of this
title is entitled to overtime pay for overtime work in
accordance with subsection (a) of this section. The overtime
hourly rate of pay is computed in accordance with subsection
(a)(1) of this section.
(c) The provisions of this section, including the last two
sentences of subsection (a) and the provisions of section
5543(b), shall apply to a prevailing rate employee described in
section 5342(a)(2)(B).
Sec. 5545. Night, standby, irregular, and hazardous duty differential
(a) Except as provided by subsection (b) of this section,
nightwork is regularly scheduled work between the hours of 6:00
p.m. and 6:00 a.m., and includes--
(1) periods of absence with pay during these hours
due to holidays; and
(2) periods of leave with pay during these hours if
the periods of leave with pay during a pay period total
less than 8 hours.
Except as otherwise provided by subsection (c) of this section,
an employee is entitled to pay for nightwork at his rate of
basic pay plus premium pay amounting to 10 percent of that
basic rate. This subsection and subsection (b) of this section
do not modify section 5141 of title 31, or other statute
authorizing additional pay for nightwork.
(b) The head of an agency may designate a time after 6:00
p.m. and a time before 6:00 a.m. as the beginning and end,
respectively, of nightwork for the purpose of subsection (a) of
this section, at a post outside the United States where the
customary hours of business extend into the hours of nightwork
provided by subsection (a) of this section.
(c) The head of an agency, with the approval of the Office
of Personnel Management, may provide that--
(1) an employee in a position requiring him
regularly to remain at, or within the confines of, his
station during longer than ordinary periods of duty, a
substantial part of which consists of remaining in a
standby status rather than performing work, shall
receive premium pay for this duty on an annual basis
instead of premium pay provided by other provisions of
this subchapter, except for irregular, unscheduled
overtime duty in excess of his regularly scheduled
weekly tour. Premium pay under this paragraph is
determined as an appropriate percentage, not in excess
of 25 percent, of such part of the rate of basic pay
for the position as does not exceed the minimum rate of
basic pay for GS-10 (including any applicable locality-
based comparability payment under section 5304 or
similar provision of law and any applicable special
rate of pay under section 5305 or similar provision of
law) (or, for a position described in section
5542(a)(3) of this title, of the basic pay of the
position), by taking into consideration the number of
hours of actual work required in the position, the
number of hours required in a standby status at or
within the confines of the station, the extent to which
the duties of the position are made more onerous by
night, Sunday, or holiday work, or by being extended
over periods of more than 40 hours a week, and other
relevant factors; or
(2) an employee in a position in which the hours of
duty cannot be controlled administratively, and which
requires substantial amounts of irregular, unscheduled,
overtime duty with the employee generally being
responsible for recognizing, without supervision,
circumstances which require the employee to remain on
duty, shall receive premium pay for this duty on an
annual basis instead of premium pay provided by other
provisions of this subchapter, except for regularly
scheduled overtime, night, and Sunday duty, and for
holiday duty. Premium pay under this paragraph is an
appropriate percentage, not less than 10 percent nor
more than 25 percent, of the rate of basic pay for the
position as determined by taking into consideration the
frequency and duration of irregular, unscheduled
overtime duty required in the position.
(d) The Office shall establish a schedule or schedules of
pay differentials for duty involving unusual physical hardship
or hazard. Under such regulations as the Office may prescribe,
and for such minimum periods as it determines appropriate, an
employee to whom chapter 51 and subchapter III of chapter 53 of
this title applies is entitled to be paid the appropriate
differential for any period in which he is subjected to
physical hardship or hazard not usually involved in carrying
out the duties of his position. However, the pay differential--
(1) does not apply to an employee in a position the
classification of which takes into account the degree
of physical hardship or hazard involved in the
performance of the duties thereof, except in such
circumstances as the Office may by regulation
prescribe; and
(2) may not exceed an amount equal to 25 percent of
the rate of basic pay applicable to the employee.
Sec. 5545a. Availability pay for criminal investigators
(a) For purposes of this section--
(1) the term ``available'' refers to the
availability of a criminal investigator and means that
an investigator shall be considered generally and
reasonably accessible by the agency employing such
investigator to perform unscheduled duty based on the
needs of an agency;
(2) the term ``criminal investigator'' means a law
enforcement officer as defined under section 5541(3)
(other than an officer occupying a position under title
II of Public Law 99-399, subject to subsection (k)) who
is required to--
(A) possess a knowledge of investigative
techniques, laws of evidence, rules of criminal
procedure, and precedent court decisions
concerning admissibility of evidence,
constitutional rights, search and seizure, and
related issues;
(B) recognize, develop, and present
evidence that reconstructs events, sequences
and time elements for presentation in various
legal hearings and court proceedings;
(C) demonstrate skills in applying
surveillance techniques, undercover work, and
advising and assisting the United States
Attorney in and out of court;
(D) demonstrate the ability to apply the
full range of knowledge, skills, and abilities
necessary for cases which are complex and
unfold over a long period of time (as
distinguished from certain other occupations
that require the use of some investigative
techniques in short-term situations that may
end in arrest or detention);
(E) possess knowledge of criminal laws and
Federal rules of procedure which apply to cases
involving crimes against the United States,
including--
(i) knowledge of the elements of a
crime;
(ii) evidence required to prove the
crime;
(iii) decisions involving arrest
authority;
(iv) methods of criminal
operations; and
(v) availability of detection
devices; and
(F) possess the ability to follow leads
that indicate a crime will be committed rather
than initiate an investigation after a crime is
committed;
(3) the term ``unscheduled duty'' means hours of
duty a criminal investigator works, or is determined to
be available for work, that are not--
(A) part of the 40 hours in the basic work
week of the investigator; or
(B) overtime hours paid under section 5542;
and
(4) the term ``regular work day'' means each day in
the investigator's basic work week during which the
investigator works at least 4 hours that are not
overtime hours paid under section 5542 or hours
considered part of section 5545a.
(b) The purpose of this section is to provide premium pay
to criminal investigators to ensure the availability of
criminal investigators for unscheduled duty in excess of a 40
hour work week based on the needs of the employing agency.
(c) Each criminal investigator shall be paid availability
pay as provided under this section. Availability pay shall be
paid to ensure the availability of the investigator for
unscheduled duty. The investigator is generally responsible for
recognizing, without supervision, circumstances which require
the investigator to be on duty or be available for unscheduled
duty based on the needs of the agency. Availability pay
provided to a criminal investigator for such unscheduled duty
shall be paid instead of premium pay provided by other
provisions of this subchapter, except premium pay for regularly
scheduled overtime work as provided under section 5542, night
duty, Sunday duty, and holiday duty.
(d)(1) A criminal investigator shall be paid availability
pay, if the average of hours described under paragraph (2) (A)
and (B) is equal to or greater than 2 hours.
(2) The hours referred to under paragraph (1) are--
(A) the annual average of unscheduled duty hours
worked by the investigator in excess of each regular
work day; and
(B) the annual average of unscheduled duty hours
such investigator is available to work on each regular
work day upon request of the employing agency.
(3) Unscheduled duty hours which are worked by an
investigator on days that are not regular work days shall be
considered in the calculation of the annual average of
unscheduled duty hours worked or available for purposes of
certification.
(4) An investigator shall be considered to be available
when the investigator cannot reasonably and generally be
accessible due to a status or assignment which is the result of
an agency direction, order, or approval as provided under
subsection (f)(1).
(e)(1) Each criminal investigator receiving availability
pay under this section and the appropriate supervisory officer,
to be designated by the head of the agency, shall make an
annual certification to the head of the agency that the
investigator has met, and is expected to meet, the requirements
of subsection (d). The head of a law enforcement agency may
prescribe regulations necessary to administer this subsection.
(2) Involuntary reduction in pay resulting from a denial of
certification under paragraph (1) shall be a reduction in pay
for purposes of section 7512(4) of this title.
(f)(1) A criminal investigator who is eligible for
availability pay shall receive such pay during any period such
investigator is--
(A) attending agency sanctioned training;
(B) on agency approved sick leave or annual leave;
(C) on agency ordered travel status; or
(D) on excused absence with pay for relocation
purposes.
(2) Notwithstanding paragraph (1)(A), agencies or
departments may provide availability pay to investigators
during training which is considered initial, basic training
usually provided in the first year of service.
(3) Agencies or departments may provide availability pay to
investigators when on excused absence with pay, except as
provided in paragraph (1)(D).
(g) Section 5545(c) shall not apply to any criminal
investigator who is paid availability pay under this section.
(h) Availability pay under this section shall be--
(1) 25 percent of the rate of basic pay for the
position; and
(2) treated as part of the basic pay for purposes
of--
(A) sections 5595(c), 8114(e), 8331(3), and
8704(c); and
(B) such other purposes as may be expressly
provided for by law or as the Office of
Personnel Management may by regulation
prescribe.
(i) The provisions of subsections (a)-(h) providing for
availability pay shall apply to a pilot employed by the United
States Customs Service who is a law enforcement officer as
defined under section 5541(3). For the purpose of this section,
section 5542(d) of this title, and section 13(a)(16) and
(b)(30) of the Fair Labor Standards Act of 1938 (29 U.S.C.
213(a)(16) and (b)(30)), such pilot shall be deemed to be a
criminal investigator as defined in this section. The Office of
Personnel Management may prescribe regulations to carry out
this subsection.
(j) Notwithstanding any other provision of this section,
any Office of Inspector General which employs fewer than 5
criminal investigators may elect not to cover such criminal
investigators under this section.
(k)(1) For purposes of this section, the term ``criminal
investigator'' includes a special agent occupying a position
under title II of Public Law 99-399 if such special agent--
(A) meets the definition of such term under
paragraph (2) of subsection (a) (applied disregarding
the parenthetical matter before subparagraph (A)
thereof); and
(B) such special agent satisfies the requirements
of subsection (d) without taking into account any hours
described in paragraph (2)(B) thereof.
(2) In applying subsection (h) with respect to a special
agent under this subsection--
(A) any reference in such subsection to ``basic
pay'' shall be considered to include amounts designated
as ``salary'';
(B) paragraph (2)(A) of such subsection shall be
considered to include (in addition to the provisions of
law specified therein) sections 609(b)(1), 805, 806,
and 856 of the Foreign Service Act of 1980; and
(C) paragraph (2)(B) of such subsection shall be
applied by substituting for ``Office of Personnel
Management'' the following: ``Office of Personnel
Management or the Secretary of State (to the extent
that matters exclusively within the jurisdiction of the
Secretary are concerned)''.
Sec. 5545b. Pay for firefighters
(a) This section applies to an employee whose position is
classified in the firefighter occupation in conformance with
the GS-081 standard published by the Office of Personnel
Management, and whose normal work schedule, as in effect
throughout the year, consists of regular tours of duty which
average at least 106 hours per biweekly pay period.
(b)(1) If the regular tour of duty of a firefighter subject
to this section generally consists of 24-hour shifts, rather
than a basic 40-hour workweek (as determined under regulations
prescribed by the Office of Personnel Management), section
5504(b) shall be applied as follows in computing pay--
(A) paragraph (1) of such section shall be deemed
to require that the annual rate be divided by 2756 to
derive the hourly rate; and
(B) the computation of such firefighter's daily,
weekly, or biweekly rate shall be based on the hourly
rate under subparagraph (A); \1\
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\1\ So in law. The semicolon probably should be a period.
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(2) For the purpose of sections 5595(c), 5941, 8331(3), and
8704(c), and for such other purposes as may be expressly
provided for by law or as the Office of Personnel Management
may by regulation prescribe, the basic pay of a firefighter
subject to this subsection shall include an amount equal to the
firefighter's basic hourly rate (as computed under paragraph
(1)(A)) for all hours in such firefighter's regular tour of
duty (including overtime hours).
(c)(1) If the regular tour of duty of a firefighter subject
to this section includes a basic 40-hour workweek (as
determined under regulations prescribed by the Office of
Personnel Management), section 5504(b) shall be applied as
follows in computing pay--
(A) the provisions of such section shall apply to
the hours within the basic 40-hour workweek;
(B) for hours outside the basic 40-hour workweek,
such section shall be deemed to require that the hourly
rate be derived by dividing the annual rate by 2756;
and
(C) the computation of such firefighter's daily,
weekly, or biweekly rate shall be based on
subparagraphs (A) and (B), as each applies to the hours
involved.
(2) For purposes of sections 5595(c), 5941, 8331(3), and
8704(c), and for such other purposes as may be expressly
provided for by law or as the Office of Personnel Management
may by regulation prescribe, the basic pay of a firefighter
subject to this subsection shall include--
(A) an amount computed under paragraph (1)(A) for
the hours within the basic 40-hour workweek; and
(B) an amount equal to the firefighter's basic
hourly rate (as computed under paragraph (1)(B)) for
all hours outside the basic 40-hour workweek that are
within such firefighter's regular tour of duty
(including overtime hours).
(d)(1) A firefighter who is subject to this section shall
receive overtime pay in accordance with section 5542, but shall
not receive premium pay provided by other provisions of this
subchapter.
(2) For the purpose of applying section 7(k) of the Fair
Labor Standards Act of 1938 to a firefighter who is subject to
this section, no violation referred to in such section 7(k)
shall be deemed to have occurred if the requirements of section
5542(a) are met, applying section 5542(a) as provided in
subsection (f) of that section: Provided, That the overtime
hourly rate of pay for such firefighter shall in all cases be
an amount equal to one and one-half times the firefighter's
hourly rate of basic pay under subsection (b)(1)(A) or
(c)(1)(B) of this section, as applicable.
(3) The Office of Personnel Management may prescribe
regulations, with respect to firefighters subject to this
section, that would permit an agency to reduce or eliminate the
variation in the amount of firefighters' biweekly pay caused by
work scheduling cycles that result in varying hours in the
regular tours of duty from pay period to pay period. Under such
regulations, the pay that a firefighter would otherwise receive
for regular tours of duty over the work scheduling cycle shall,
to the extent practicable, remain unaffected.
(4) \1\ Notwithstanding section 8114(e)(1),
overtime pay for a firefighter subject to this section
for hours in a regular tour of duty shall be included
in any computation of pay under section 8114.
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\1\ Margin so in law.
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Sec. 5546. Pay for Sunday and holiday work
(a) An employee who performs work during a regularly
scheduled 8-hour period of service which is not overtime work
as defined by section 5542(a) of this title a part of which is
performed on Sunday is entitled to pay for the entire period of
service at the rate of his basic pay, plus premium pay at a
rate equal to 25 percent of his rate of basic pay. For
employees serving outside the United States in areas where
Sunday is a routine workday and another day of the week is
officially recognized as the day of rest and worship, the
Secretary of State may designate the officially recognized day
of rest and worship as the day with respect to which the
preceding sentence shall apply instead of Sunday.
(b) An employee who performs work on a holiday designated
by Federal Statute, Executive order, or with respect to an
employee of the government of the District of Columbia, by
order of the District of Columbia Council, is entitled to pay
at the rate of his basic pay, plus premium pay at a rate equal
to the rate of his basic pay, for that holiday work which is
not--
(1) in excess of 8 hours; or
(2) overtime work as defined by section 5542(a) of
this title.
(c) An employee who is required to perform any work on a
designated holiday is entitled to pay for at least 2 hours of
holiday work.
(d) An employee who performs overtime work as defined by
section 5542(a) of this title on a Sunday or a designated
holiday is entitled to pay for that overtime work in accordance
with section 5542(a) of this title.
(e) Premium pay under this section is in addition to
premium pay which may be due for the same work under section
5545(a) and (b) of this title, providing premium pay for
nightwork.
Sec. 5546a. Differential pay for certain employees of the Federal
Aviation Administration and the Department of
Defense
(a) The Administrator of the Federal Aviation
Administration (hereafter in this section referred to as the
``Administrator'') and the Secretary of Defense (hereinafter
referred to in this section as the ``Secretary'') may pay
premium pay at the rate of 5 per centum of the applicable rate
of basic pay to--
(1) any employee of the Federal Aviation
Administration or the Department of Defense who is--
(A) occupying a position in the air traffic
controller series classified not lower than GS-
9 and located in an air traffic control center
or terminal or in a flight service station;
(B) assigned to a position classified not
lower than GS-09 or WG-10 located in an airway
facilities sector; or
(C) assigned to a flight inspection crew-
member position classified not lower than GS-11
located in a flight inspection field office,
the duties of whose position are determined by the
Administrator or the Secretary to be directly involved
in or responsible for the operation and maintenance of
the air traffic control system; and
(2) any employee of the Federal Aviation
Administration or the Department of Defense who is
assigned to a flight test pilot position classified not
lower than GS-12 located in a region or center, the
duties of whose position are determined by the
Administrator or the Secretary to be unusually taxing,
physically or mentally, and to be critical to the
advancement of aviation safety; and
(3) any employee of the Federal Aviation
Administration who occupies a position at the Federal
Aviation Administration Academy, Oklahoma City,
Oklahoma, the duties of which are determined by the
Administrator to require the individual to be actively
engaged in or directly responsible for training
employees to perform the duties of a position described
in subparagraph (a); (b); or (c) or paragraph (1) of
this subsection, and who, immediately prior to assuming
such position at such Academy, occupied a position
referred to in subparagraph (a), (b), or (c) of
paragraph (1) of this subsection.
(b) The premium pay payable under any subsection of this
section is in addition to basic pay and to premium pay payable
under any other subsection of this section and any other
provision of this subchapter.
(c)(1) The Administrator or the Secretary may pay premium
pay to any employee of the Federal Aviation Administration or
the Department of Defense who--
(A) is an air traffic controller located in an air
traffic control center or terminal;
(B) is not required as a condition of employment to
be certified by the Administrator or the Secretary as
proficient and medically qualified to perform duties
including the separation and control of air traffic;
and
(C) is so certified.
(2) Premium pay paid under paragraph (1) of this subsection
shall be paid at the rate of 1.6 per centum of the applicable
rate of basic pay for so long as such employee is so certified.
(d)(1) The Administrator or the Secretary may pay premium
pay to any air traffic controller of the Federal Aviation
Administration or the Department of Defense who is assigned by
the Administrator or the Secretary to provide on-the-job
training to another air traffic controller while such other air
traffic controller is directly involved in the separation and
control of live air traffic.
(2) Premium pay paid under paragraph (1) of this subsection
shall be paid at the rate of 10 per centum of the applicable
hourly rate of basic pay times the number of hours and portion
of an hour during which the air traffic controller of the
Federal Aviation Administration or the Department of Defense
provides on-the-job training.
(e)(1) The Administrator or the Secretary may pay premium
pay to any air traffic controller or flight service station
specialist of the Federal Aviation Administration or the
Department of Defense who, while working a regularly scheduled
eight-hour period of service, is required by his supervisor to
work during the fourth through sixth hour of such period
without a break of thirty minutes for a meal.
(2) Premium pay paid under paragraph (1) of this subsection
shall be paid at the rate of 50 per centum of one-half of the
applicable hourly rate of basic pay.
(f)(1) The Administrator or the Secretary shall prescribe
standards for determining which air traffic controllers and
other employees of the Federal Aviation Administration or the
Department of Defense are to be paid premium pay under this
section.
(2) The Administrator may prescribe such rules as he
determines are necessary to carry out the provisions of this
section.
Sec. 5547. Limitation on premium pay
(a) An employee may be paid premium pay under sections
5542, 5545 (a), (b), and (c), 5545a, and 5546 (a) and (b) of
this title only to the extent that the payment does not cause
his aggregate rate of pay for any pay period to exceed the
maximum rate for GS-15 (including any applicable locality-based
comparability payment under section 5304 or similar provision
of law and any applicable special rate of pay under section
5305 or similar provision of law). The first sentence of this
subsection shall not apply to any employee of the Federal
Aviation Administration or the Department of Defense who is
paid premium pay under section 5546a of this title.
(b)(1) Subject to regulations prescribed by the Office of
Personnel Management, the first sentence of subsection (a)
shall not apply to an employee who is paid premium pay by
reason of work in connection with an emergency which involves a
direct threat to life or property, including a forest wildfire
emergency.
(2) Notwithstanding paragraph (1), no employee referred to
in such paragraph may be paid premium pay under the provisions
of law cited in the first sentence of subsection (a) if, or to
the extent that, the aggregate of such employee's basic pay and
premium pay under those provisions would, in any calendar year,
exceed the maximum rate payable for GS-15 in effect at the end
of such calendar year.
(c)(1) Subsections (a) and (b) shall not apply to a law
enforcement officer.
(2) A law enforcement officer may be paid premium pay under
the provisions of law cited in the first sentence of subsection
(a) only to the extent that the payment does not cause the
officer's aggregate rate of pay for any pay period to exceed
the lesser of--
(A) 150 percent of the minimum rate payable for GS-
15 (including any applicable locality-based
comparability payment under section 5304 or similar
provision of law and any applicable special rate of pay
under section 5305 or similar provision of law); or
(B) the rate payable for level V of the Executive
Schedule;
Sec. 5548. Regulations
(a) The Office of Personnel Management may prescribe
regulations, subject to the approval of the President,
necessary for the administration of this subchapter, except
section 5545(d) insofar as this subchapter affects employees in
or under an Executive agency.
(b) The Office shall prescribe regulations necessary for
the administration of section 5545(d).
Sec. 5549. Effect on other statutes
This subchapter does not prevent payment for overtime
services or for Sunday or holiday work under any of the
following statutes--
(1) section 394 of title 7;
(2) sections 1353a and 1353b of title 8;
(3) sections 261, 267, 1450, 1451, 1451a, and 1452
of title 19;
(4) sections 2111 and 2112 of title 46; and
(5) section 154(f)(3) of title 47.
However, an employee may not receive premium pay under this
subchapter for the same services for which he is paid under one
of these statutes.
[Sec. 5550. Repealed. Pub. L. 102-378, Sec. 2(44)(A), Oct. 2, 1992, 106
Stat. 1352.]
Sec. 5550a. Compensatory time off for religious observances
(a) Not later than 30 days after the date of the enactment
of this section, the Office of Personnel Management shall
prescribe regulations providing for work schedules under which
an employee whose personal religious beliefs require the
abstention from work during certain periods of time, may elect
to engage in overtime work for time lost for meeting those
religious requirements. Any employee who so elects such
overtime work shall be granted equal compensatory time off from
his scheduled tour of duty (in lieu of overtime pay) for such
religious reasons, notwithstanding any other provision of law.
(b) In the case of any agency described in subparagraphs
(C) through (G) of section 5541(1) of this title, the head of
such agency (in lieu of the Office) shall prescribe the
regulations referred to in subsection (a) of this section.
(c) Regulations under this section may provide for such
exceptions as may be necessary to efficiently carry out the
mission of the agency or agencies involved.
SUBCHAPTER VI--PAYMENT FOR ACCUMULATED AND ACCRUED LEAVE
Sec. 5551. Lump-sum payment for accumulated and accrued leave on
separation
(a) An employee as defined by section 2105 of this title or
an individual employed by the government of the District of
Columbia, who is separated from the service, is transferred to
a position described under section 6301(2)(B)(xiii) of this
title, or elects to receive a lump-sum payment for leave under
section 5552 of this title, is entitled to receive a lump-sum
payment for accumulated and current accrued annual or vacation
leave to which he is entitled by statute. The lump-sum payment
shall equal the pay (excluding any differential under section
5925 and any allowance under section 5928) the employee or
individual would have received had he remained in the service
until expiration of the period of the annual or vacation leave.
The lump-sum payment is considered pay for taxation purposes
only. The period of leave used for calculating the lump-sum
payment shall not be extended due to any holiday occurring
after separation. For the purposes of this subsection, movement
to employment described in section 2105(c) shall not be deemed
separation from the service in the case of an employee whose
annual leave is transferred under section 6308(b).
(b) The accumulated and current accrued annual leave to
which an officer excepted from subchapter I of chapter 63 of
this title by section 6301(2)(x)-(xiii) of this title, is
entitled immediately before the date he is excepted under that
section shall be liquidated by a lump-sum payment in accordance
with subsection (a) of this section or subchapter VIII of this
chapter, except that the payment is based on the rate of pay
which he was receiving, immediately before the date on which
section 6301(2)(x)-(xiii) of this title became applicable to
him.
(c)(1) Annual leave that is restored to an employee of the
Department of Defense under section 6304(d) of this title by
reason of the operation of paragraph (3) of such section and
remains unused upon the transfer of the employee to a position
described in paragraph (2) shall be liquidated by payment of a
lump-sum for such leave to the employee upon the transfer.
(2) A position referred to in paragraph (1) is a position
in a department or agency of the Federal Government outside the
Department of Defense or a Department of Defense position that
is not located at a Department of Defense installation being
closed or realigned as described in section 6304(d)(3) of this
title.
Sec. 5552. Lump-sum payment for accumulated and accrued leave on
entering active duty; election
An employee as defined by section 2105 of this title or an
individual employed by a territory or possession of the United
States or the government of the District of Columbia who enters
on active duty in the armed forces is entitled to--
(1) receive, in addition to his pay and allowances
from the armed forces, a lump-sum payment for
accumulated and current accrued annual or vacation
leave in accordance with section 5551 of this title; or
(2) elect to have the leave remain to his credit
until his return from active duty.
Sec. 5553. Regulations
The Office of Personnel Management may prescribe
regulations necessary for the administration of this
subchapter.
SUBCHAPTER VII--PAYMENTS TO MISSING EMPLOYEES
Sec. 5561. Definitions
For the purpose of this subchapter--
(1) ``agency'' means an Executive agency and a
military department;
(2) ``employee'' means an employee in or under an
agency who is a citizen or national of the United
States or an alien admitted to the United States for
permanent residence, but does not include a part-time
or intermittent employee or native labor casually hired
on an hourly or daily basis. However, such an employee
who enters a status listed in paragraph (5)(A)-(E) of
this section--
(A) inside the continental United States;
or
(B) who is a resident at or in the vicinity
of his place of employment in a territory or
possession of the United States or in a foreign
country and who was not living there solely as
a result of his employment;
is an employee for the purpose of this subchapter only
on a determination by the head of the agency concerned
that this status is the proximate result of employment
by the agency;
(3) ``dependent'' means--
(A) a wife;
(B) an unmarried child (including an
unmarried dependent stepchild or adopted child)
under 21 years of age;
(C) a dependent mother or father;
(D) a dependent designated in official
records; and
(E) an individual determined to be
dependent by the head of the agency concerned
or his designee;
(4) ``active service'' means active Federal service
by an employee;
(5) ``missing status'' means the status of an
employee who is in active service and is officially
carried or determined to be absent in a status of--
(A) missing;
(B) missing in action;
(C) interned in a foreign country;
(D) captured, beleaguered, or besieged by a
hostile force; or
(E) detained in a foreign country against
his will;
but does not include the status of an employee for a
period during which he is officially determined to be
absent from his post of duty without authority; and
(6) ``pay and allowances'' means--
(A) basic pay;
(B) special pay;
(C) incentive pay;
(D) basic allowance for housing;
(E) basic allowance for subsistence; and
(F) station per diem allowances for not
more than 90 days.
Sec. 5562. Pay and allowances; continuance while in a missing status;
limitations
(a) An employee in a missing status is entitled to receive
or have credited to his account, for the period he is in that
status, the same pay and allowances to which he was entitled at
the beginning of that period or may become entitled thereafter.
Notwithstanding any other provision of law, an employee in a
missing status on or after January 1, 1965, is entitled--
(1) to payment for annual leave which accrued to
his account on or after January 1, 1965, but which was
forfeited under section 6304 of this title because he
was unable to use that leave by virtue of his missing
status; or
(2) to have all of that leave restored to him and
credited to a separate leave account in accordance with
the provisions of section 6304(d)(2) of this title.
An employee shall elect in writing, within 90 days immediately
following December 14, 1973, or within 90 days immediately
following the termination of his missing status, whichever is
later, whether he desires payment for the leave under clause
(1) of this subsection or credit of the leave under clause (2)
of this subsection. Payment under clause (1) of this subsection
shall be at the employee's rate of basic pay in effect at the
time the leave was forfeited.
(b) Entitlement to pay and allowances under subsection (a)
of this section ends on the date of--
(1) receipt by the head of the agency concerned of
evidence that the employee is dead; or
(2) death prescribed or determined under section
5565 of this title.
That entitlement does not end--
(A) on the expiration of the term of service or
employment of an employee while he is in a missing
status; or
(B) earlier than the dates prescribed in paragraphs
(1) and (2) of this subsection if the employee dies
while he is in a missing status.
(c) An employee who is officially determined to be absent
from his post of duty without authority is indebted to the
United States for payments of amounts credited to his account
under subsection (a) of this section for the period of that
absence.
(d) When an employee in a missing status is continued in
that status under section 5565 of this title, he continues to
be entitled to have pay and allowances credited under
subsection (a) of this section.
Sec. 5563. Allotments; continuance, suspension, initiation, resumption,
or increase while in a missing status; limitations
(a) An allotment (including one for the purchase of United
States savings bonds) made by an employee before he was in a
missing status may be continued for the period he is in that
status, notwithstanding the end of the period for which the
allotment was made.
(b) In the absence of an allotment or when an allotment is
insufficient for a purpose authorized by the head of the agency
concerned, he or his designee may authorize such a new or
increased allotment as circumstances warrant, which is payable
for the period the employee concerned is in a missing status.
(c) All allotments from the pay and allowances of an
employee in a missing status may not total more than the amount
of pay and allowances he is permitted to allot under
regulations prescribed by the head of the agency concerned.
(d) A premium paid by the United States on insurance issued
on the life of an employee, which is unearned because it covers
a period after his death, reverts to the appropriation of the
agency concerned.
(e) Subject to subsections (f) and (g) of this section, the
head of the agency concerned or his designee may direct the
initiation, continuance, discontinuance, increase, decrease,
suspension, or resumption of an allotment from the pay and
allowances of an employee in a missing status when that action
is in the interests of the employee, his dependents, or the
United States.
(f) When the head of the agency concerned officially
reports that an employee in a missing status is alive, an
allotment under subsections (a)-(d) of this section may be
paid, subject to section 5562 of this title, until the date the
head of the agency concerned receives evidence that the
employee is dead or has returned to the controllable
jurisdiction of the agency concerned.
(g) When an employee in a missing status is continued in
that status under section 5565 of this title, an allotment
under subsections (a)-(d) of this section may be continued,
increased, or initiated.
(h) When the head of the agency concerned considers it
essential for the well-being and protection of the dependents
of an employee in active service (other than an employee in a
missing status), he may, with or without the consent of the
employee and subject to termination on specific request of the
employee--
(1) direct the payment of a new allotment from the
pay of the employee;
(2) increase or decrease the amount of an allotment
made by the employee; and
(3) continue payment of an allotment of the
employee which has expired.
Sec. 5564. Travel and transportation; dependents; household and
personal effects; motor vehicles; sale of bulky
items; claims for proceeds; appropriation
chargeable
(a) For the purpose of this section, ``household and
personal effects'' and ``household effects'' may include, in
addition to other authorized weight allowances, one privately
owned motor vehicle which may be shipped at United States
expense.
(b) Transportation (including packing, crating, draying,
temporarily storing, and unpacking of household and personal
effects) may be provided for the dependents and household and
personal effects of an employee in active service (without
regard to pay grade) who is officially reported as dead,
injured, or absent for more than 29 days in a status listed in
section 5561(5) (A)-(E) of this title to--
(1) the official residence of record for the
employee;
(2) the residence of his dependent, next of kin, or
other person entitled to the effects under regulations
prescribed by the head of the agency concerned; or
(3) another location determined in advance or later
approved by the head of the agency concerned or his
designee on request of the employee (if injured) or his
dependent, next of kin, or other person described in
paragraph (2) of this subsection.
(c) When an employee described in subsection (b) of this
section is in an injured status, transportation of dependents
and household and personal effects may be provided under this
section only when prolonged hospitalization or treatment is
anticipated.
(d) Transportation on request of a dependent may be
authorized under this section only when there is a reasonable
relationship between the circumstances of the dependent and the
destination requested.
(e) Instead of providing transportation for dependents
under this section, when the travel has been completed the head
of the agency concerned may authorize--
(1) reimbursement for the commercial cost of the
transportation; or
(2) a monetary allowance, instead of
transportation, as authorized by statute for the whole
or that part of the travel for which transportation in
kind was not furnished.
(f) The head of the agency concerned may store the
household and personal effects of an employee described in
subsection (b) of this section until proper disposition can be
made. The cost of the storage and transportation (including
packing, crating, draying, temporarily storing, and unpacking)
of household and personal effects shall be charged against
appropriations currently available.
(g) When the head of the agency concerned determines that
an emergency exists and that a sale would be in the best
interests of the United States, he may provide for the public
or private sale of motor vehicles and other bulky items of the
household and personal effects of an employee described in
subsection (b) of this section. Before a sale, and if
practicable, a reasonable effort shall be made to determine the
desires of interested persons. The net proceeds from the sale
shall be sent to the owner or other person entitled thereto
under regulations prescribed by the head of the agency
concerned. If there is no owner or other person entitled
thereto, or if the owner or other person or their addresses are
not ascertained within 1 year from the date of sale, the net
proceeds may be covered into the Treasury of the United States
as miscellaneous receipts.
(h) A claim for net proceeds covered into the Treasury
under subsection (g) of this section may be filed with the
Administrator of General Services by the owner, his heir or
next of kin, or his legal representative at any time before the
end of 5 years from the date the proceeds are covered into the
Treasury. When a claim is filed, the Administrator of General
Services shall allow or disallow it. A claim that is allowed
shall be paid from the appropriation for refunding money
erroneously received and covered. If a claim is not filed
before the end of 5 years from the date the proceeds are
covered into the Treasury, it is barred from being acted on by
the Administrator of General Services or the courts.
(i) This section does not amend or repeal--
(1) section 2575, 2733, 4712, 6522, or 9712 of
title 10;
(2) section 507 of title 14; or
(3) chapter 171 of title 28.
Sec. 5565. Agency review
(a) When an employee has been in a missing status almost 12
months and no official report of his death or the circumstances
of his continued absence has been received by the head of the
agency concerned, he shall have the case fully reviewed. After
that review and the end of 12 months in a missing status, or
after any later review which shall be made when warranted by
information received or other circumstances, the head of the
agency concerned or his designee may--
(1) direct the continuance of his missing status,
if there is a reasonable presumption that the employee
is alive; or
(2) make a finding of death.
(b) When a finding of death is made under subsection (a) of
this section, it shall include the date death is presumed to
have occurred for the purpose of the ending of crediting pay
and allowances and settlement of accounts. That date is--
(1) the day after the day on which the 12 months in
a missing status ends; or
(2) a day determined by the head of the agency
concerned or his designee when the missing status has
been continued under subsection (a) of this section.
(c) For the purpose of determining status under this
section, a dependent of an employee in active service is deemed
an employee. A determination under this section made by the
head of the agency concerned or his designee is conclusive on
all other agencies of the United States. This section does not
entitle a dependent to pay, allowances, or other compensation
to which he is not otherwise entitled.
Sec. 5566. Agency determinations
(a) The head of the agency concerned or his designee may
make any determination necessary to administer this subchapter,
and when so made it is conclusive as to--
(1) death or finding of death;
(2) the fact of dependency under this subchapter;
(3) any other status covered by this subchapter;
(4) an essential date, including one on which
evidence or information is received by the head of the
agency concerned; and
(5) whether information received concerning an
employee is to be construed and acted on as an official
report of death.
(b) When the head of the agency concerned receives
information that he considers to conclusively establish the
death of an employee, he shall take action thereon as an
official report of death, notwithstanding an earlier action
relating to death or status of the employee. After the end of
12 months in a missing status prescribed by section 5565 of
this title, the head of the agency concerned or his designee
shall make a finding of death when he considers that the
information received, or a lapse of time without information,
establishes a reasonable presumption that an employee in a
missing status is dead.
(c) The head of the agency concerned or his designee may
determine the entitlement of an employee to pay and allowances
under this subchapter, including credits and charges in his
account, and that determination is conclusive. An account may
not be charged or debited with an amount that an employee
captured, beleaguered, or besieged by a hostile force may
receive or be entitled to receive from, or have placed to his
credit by, the hostile force as pay, allowances, or other
compensation.
(d) When circumstances warrant the reconsideration of a
determination made under this subchapter, the head of the
agency concerned or his designee may change or modify it.
(e) When the account of an employee has been charged or
debited with an allotment paid under this subchapter, the
amount so charged or debited shall be recredited to the account
of the employee if the head of the agency concerned or his
designee determines that the payment was induced by fraud or
misrepresentation to which the employee was not a party.
(f) Except an allotment for an unearned insurance premium,
an allotment paid from the pay and allowances of an employee
for the period he is in a missing status may not be collected
from the allotee as an overpayment when payment was caused by
delay in receiving evidence of death. An allotment paid for a
period after the end, under this subchapter or otherwise, of
entitlement to pay and allowances may not be collected from the
allottee or charged against the pay of a deceased employee when
payment was caused by delay in receiving evidence of death.
(g) The head of the agency concerned or his designee may
waive the recovery of an erroneous payment or overpayment of an
allotment to a dependent if he considers recovery is against
equity and good conscience.
(h) For the purpose of determining status under this
section, a dependent of an employee in active service is deemed
an employee. A determination under this section made by the
head of the agency concerned or his designee is conclusive on
all other agencies of the United States. This section does not
entitle a dependent to pay, allowances, or other compensation
to which he is not otherwise entitled.
Sec. 5567. Settlement of accounts
(a) The head of the agency concerned or his designee may
settle the accounts of--
(1) an employee for whose account payment has been
made under sections 5562, 5563, and 5565 of this title;
and
(2) a survivor of a casualty to a ship, station, or
military installation which results in the loss or
destruction of disbursing records.
That settlement is conclusive on the accounting officials of
the United States in settling the accounts of disbursing
officials.
(b) Payment or settlement of an account made pursuant to a
report, determination, or finding of death may not be recovered
or reopened because of a later report or determination which
fixes a date of death. However, an account shall be reopened
and settled on the basis of a date of death so fixed which is
later than that used as a basis for earlier settlement.
(c) In settling the accounts of a disbursing official, he
is entitled to credit for an erroneous payment or overpayment
made by him in carrying out this subchapter, except section
5568, if there is no fraud or criminality by him. Recovery may
not be made from an individual who authorizes a payment under
this subchapter, except section 5568, if there is no fraud or
criminality by him.
Sec. 5568. Income tax deferment
Notwithstanding other statutes, any Federal income tax
return of, or the payment of any Federal income tax by, an
employee who, at the time the return or payment would otherwise
become due, is in a missing status does not become due until
the earlier of the following dates:
(1) the fifteenth day of the third month in which
he ceased (except because of death or incompetency)
being in a missing status, unless before the end of
that fifteenth day he is again in a missing status; or
(2) the fifteenth day of the third month after the
month in which an executor, administrator, or
conservator of the estate of the taxpayer is appointed.
That due date is prescribed subject to the power of the
Secretary of the Treasury or his delegate to extend the time
for filing the return or paying the tax, as in other cases, and
to assess and collect the tax as provided by sections 6851,
6861, and 6871 of title 26 in cases in which the assessment or
collection is jeopardized and in cases of bankruptcy or
receivership.
Sec. 5569. Benefits for captives
(a) For the purpose of this section--
(1) ``captive'' means any individual in a captive
status commencing while such individual is--
(A) in the Civil Service, or
(B) a citizen, national, or resident alien
of the United States rendering personal service
to the United States similar to the service of
an individual in the Civil Service (other than
as a member of the uniformed services);
(2) ``captive status'' means a missing status
which, as determined by the President, arises because
of a hostile action and is a result of the individual's
relationship with the Government;
(3) ``missing status''--
(A) in the case of an employee, has the
meaning provided under section 5561(5) of this
title; and
(B) in the case of an individual other than
an employee, has a similar meaning; and
(4) ``family member'', as used with respect to a
person, means--
(A) any dependent of such person; and
(B) any individual (other than a dependent
under subparagraph (A)) who is a member of such
person's family or household.
(b)(1) The Secretary of the Treasury shall establish a
savings fund to which the head of an agency may allot all or
any portion of the pay and allowances of any captive to the
extent that such pay and allowances are not subject to an
allotment under section 5563 of this title or any other
provision of law.
(2) Amounts so allotted to the savings fund shall bear
interest at a rate which, for any calendar quarter, shall be
equal to the average rate paid in United States Treasury bills
with 3-month maturities issued during the preceding calendar
quarter. Such interest shall be compounded quarterly.
(3) Amounts in the savings fund credited to a captive shall
be considered as pay and allowances for purposes of section
5563 of this title and shall otherwise be subject to withdrawal
under procedures which the Secretary of the Treasury shall
establish.
(4) Any interest accruing under this subsection on--
(A) any amount for which an individual is indebted
to the United States under section 5562(c) of this
title shall be deemed to be part of the amount due
under such section 5562(c); and
(B) any amount referred to in section 5566(f) of
this title shall be deemed to be part of such amount
for purposes of such section 5566(f).
(5) An allotment under this subsection may be made without
regard to section 5563(c) of this title.
(c) The head of an agency shall pay (by advancement or
reimbursement) any individual who is a captive, and any family
member of such individual, for medical and health care, and
other expenses related to such care, to the extent that such
care--
(1) is incident to such individual being a captive;
and
(2) is not covered--
(A) by any Government medical or health
program; or
(B) by insurance.
(d)(1) Except as provided in paragraph (3), the President
shall make a cash payment, computed under paragraph (2), to any
individual who became or becomes a captive commencing on or
after November 4, 1979. Such payment shall be made before the
end of the one-year period beginning on the date on which the
captive status of such individual terminates or, in the case of
any individual whose status as a captive terminated before the
date of the enactment of the Victims of Terrorism Compensation
Act, before the end of the one-year period beginning on such
date.
(2) Except as provided in section 802 of the Victims of
Terrorism Compensation Act, the amount of the payment under
this subsection with respect to an individual held as a captive
shall be not less than one-half of the amount of the world-wide
average per diem rate under section 5702 of this title which
was in effect for each day that individual was so held.
(3) The President--
(A) may defer a payment under this subsection in
the case of any individual who, during the one-year
period described in paragraph (1), is charged with an
offense described in subparagraph (B), until final
disposition of such charge; and
(B) may deny such payment in the case of any
individual who is convicted of an offense described in
subsection (b) or (c) of section 8312 of this title
committed--
(i) during the period of captivity of such
individual; and
(ii) related to the captive status of such
individual.
(4) A payment under this subsection shall be in addition to
any other amount provided by law.
(5) The provisions of subchapter VIII of this chapter (or,
in the case of any person not covered by such subchapter,
similar provisions prescribed by the President) shall apply
with respect to any amount due an individual under paragraph
(1) after such individual's death.
(6) Any payment made under paragraph (1) which is later
denied under paragraph (3)(B) is a claim of the United States
Government for purposes of section 3711 of title 31.
(e)(1) Under regulations prescribed by the President, the
benefits provided by the Soldiers' and Sailors' Civil Relief
Act of 1940, including the benefits provided by section 701 of
such Act but excluding the benefits provided by sections 104,
105, 106, 400 through 408, 501 through 512, and 514 of such
Act, shall be provided in the case of any individual who is a
captive.
(2) In applying such Act under this subsection--
(A) the term ``person in the military service'' is
deemed to include any such captive;
(B) the term ``period of military service'' is
deemed to include the period during which the
individual is in a captive status; and
(C) references to the Secretary of the Army, the
Secretary of the Navy, the Adjutant General of the
Army, the Chief of Naval Personnel, and the Commandant,
United States Marine Corps, are deemed, in the case of
any captive, to be references to an individual
designated for that purpose by the President.
(f)(1)(A) Under regulations prescribed by the President,
the head of an agency shall pay (by advancement or
reimbursement) a spouse or child of a captive for expenses
incurred for subsistence, tuition, fees, supplies, books, and
equipment, and other educational expenses, while attending an
educational or training institution.
(B) Except as provided in subparagraph (C), payments shall
be available under this paragraph for a spouse or child of an
individual who is a captive for education or training which
occurs--
(i) after that individual has been in captive
status for 90 days or more, and
(ii) on or before--
(I) the end of any semester or quarter (as
appropriate) which begins before the date on
which the captive status of that individual
terminates, or
(II) if the educational or training
institution is not operated on a semester or
quarter system, the earlier of the end of any
course which began before such date or the end
of the 16-week period following that date.
In order to respond to special circumstances, the appropriate
agency head may specify a date for purposes of cessation of
assistance under clause (ii) which is later than the date which
would otherwise apply under such clause.
(C) In the event a captive dies and the death is incident
to that individual being a captive, payments shall be available
under this paragraph for a spouse or child of such individual
for education or training which occurs after the date of such
individual's death.
(D) The preceding provisions of this paragraph shall not
apply with respect to any spouse or child who is eligible for
assistance under chapter 35 of title 38 or similar assistance
under any other provision of law.
(E) For the purpose of this paragraph, ``child'' means a
dependent under section 5561(3)(B) of this title.
(2)(A) In order to respond to special circumstances, the
head of an agency may pay (by advancement or reimbursement) a
captive for expenses incurred for subsistence, tuition, fees,
supplies, books, and equipment, and other educational expenses,
while attending an educational or training institution.
(B) Payments shall be available under this paragraph for a
captive for education or training which occurs--
(i) after the termination of that individual's
captive status, and
(ii) on or before--
(I) the end of any semester or quarter (as
appropriate) which begins before the date which
is 10 years after the day on which the captive
status of that individual terminates, or
(II) if the educational or training
institution is not operated on a semester or
quarter system, the earlier of the end of any
course which began before such date or the end
of the 16-week period following that date, and
shall be available only to the extent that such payments are
not otherwise authorized by law.
(3) Assistance under this subsection--
(A) shall be discontinued for any individual whose
conduct or progress is unsatisfactory under standards
consistent with those established pursuant to section
1724 of title 38; and
(B) may not be provided for any individual for a
period in excess of 45 months (or the equivalent
thereof in other than full-time education or training).
(4) Regulations prescribed to carry out this subsection
shall provide that the program under this subsection shall be
consistent with the assistance program under chapters 35 and 36
of title 38.
(g) Any benefit provided under subsection (c) or (d) may,
under regulations prescribed by the President, be provided to a
family member of an individual if--
(1) such family member is held in captive status;
and
(2) such individual is performing service for the
United States as described in subsection (a)(1)(A) when
the captive status of such family member commences.
(h) Except as provided in subsection (d), this section
applies with respect to any individual in a captive status
commencing after January 21, 1981.
(i) Notwithstanding any other provision of this subchapter,
any determination by the President under subsection (a)(2) or
(d) shall be conclusive and shall not be subject to judicial
review.
(j) The President may prescribe regulations necessary to
administer this section.
(k) Any benefit or payment pursuant to this section shall
be paid out of funds available for salaries and expenses of the
relevant agency of the United States.
Sec. 5570. Compensation for disability or death
(a) For the purpose of this section--
(1) ``employee'' means--
(A) any individual in the Civil Service;
and
(B) any individual rendering personal
service to the United States similar to the
service of an individual in the Civil Service
(other than as a member of the uniformed
services); and
(2) ``family member'', as used with respect to an
employee, means--
(A) any dependent of such employee; and
(B) any individual (other than a dependent
under subparagraph (A)) who is a member of the
employee's family or household.
(b) The President shall prescribe regulations under which
an agency head may pay compensation for the disability or death
of an employee or a family member of an employee if, as
determined by the President, the disability or death was caused
by hostile action and was a result of the individual's
relationship with the Government.
(c) Any compensation otherwise payable to an individual
under this section in connection with any disability or death
shall be reduced by any amounts payable to such individual
under any other program funded in whole or in part by the
United States (excluding any amount payable under section
5569(d) of this title) in connection with such disability or
death, except that nothing in this subsection shall result in
the reduction of any amount below zero.
(d) A determination by the President under subsection (b)
shall be conclusive and shall not be subject to judicial
review.
(e) Compensation under this section may include payment
(whether by advancement or reimbursement) for any medical or
health expenses relating to the death of disability involved to
the extent that such expenses are not covered under subsection
(c) of section 5569 of this title (other than because of
paragraph (2) of such subsection).
(f) This section applies with respect to any disability or
death resulting from an injury which occurs after January 21,
1981.
(g) Any benefit or payment pursuant to this section shall
be paid out of funds available for salaries and expenses of the
relevant agency of the United States.
SUBCHAPTER VIII--SETTLEMENT OF ACCOUNTS
Sec. 5581. Definitions
For the purpose of this subchapter--
(1) ``employee'' means--
(A) an employee as defined by section 2105
of this title; and
(B) an individual employed by the
government of the District of Columbia;
but does not include the employee of--
(i) a Federal land bank;
(ii) a Federal intermediate credit bank;
(iii) a regional bank for cooperatives; or
(iv) the Senate within the purview of
section 36a of title 2; and
(2) ``money due'' means the pay and allowances due
on account of the services of a deceased employee for
the Government of the United States or the government
of the District of Columbia. It includes, but is not
limited to--
(A) per diem instead of subsistence,
mileage, and amounts due in reimbursement of
travel expenses, including incidental and
miscellaneous expenses in connection therewith
for which reimbursement is due;
(B) allowances on change of official
station;
(C) quarters and cost-of-living allowances
and overtime or premium pay;
(D) amounts due for payment of cash awards
for employees' suggestions;
(E) amounts due as refund of pay deductions
for United States savings bonds;
(F) payment for accumulated and current
accrued annual or vacation leave equal to the
pay the decreased employee would have received
had he lived and remained in the service until
the end of the period of annual or vacation
leave;
(G) amounts of checks drawn for pay and
allowances which were not delivered by the
Government to the employee during his lifetime;
(H) amounts of unnegotiated checks returned
to the Government because of the death of the
employee; and
(I) retroactive pay under section 5344(a)
(2) of this title.
It does not include benefits, refunds, or interest
payable under subchapter III of chapter 83 of this
title applicable to the service of the deceased
employee, or amounts the disposition of which is
otherwise expressly prescribed by Federal statute.
Sec. 5582. Designation of beneficiary; order of precedence
(a) The employing agency shall notify each employee of his
right to designate a beneficiary or beneficiaries to receive
money due, and of the disposition of money due if a beneficiary
is not designated. An employee may change or revoke a
designation at any time under regulations promulgated--
(1) by the Director of the Office of Personnel
Management or his designee, in the case of an employee
of an executive agency;
(2) jointly by the President pro tempore of the
Senate and the Speaker of the House of Representatives,
or their designee, in the case of an employee of the
legislative branch; and
(3) by the Chief Justice of the United States or
his or her designee, in the case of an employee of the
judicial branch.
(b) In order to facilitate the settlement of the accounts
of deceased employees, money due an employee at the time of his
death shall be paid to the person or persons surviving at the
date of death, in the following order of precedence, and the
payment bars recovery by another person of amounts so paid:
First, to the beneficiary or beneficiaries
designated by the employee in a writing received in the
employing agency before his death.
Second, if there is no designated beneficiary, to
the widow or widower of the employee.
Third, if none of the above, to the child or
children of the employee and descendants of deceased
children by representation.
Fourth, if none of the above, to the parents of the
employee or the survivor of them.
Fifth, if none of the above, to the duly appointed
legal representative of the estate of the employee.
Sixth, if none of the above, to the person or
persons entitled under the laws of the domicile of the
employee at the time of his death.
Sec. 5583. Payment of money due; settlement of accounts
(a) Under such regulations as the Director of the Office of
Personnel Management may prescribe, the employing agency shall
pay money due a deceased employee to the beneficiary designated
by the employee under section 5582(b) of this title, or, if
none, to the widow or widower of the employee.
(b) The Director may by regulation prescribe the method for
settlement of accounts payable under subsection (a) of this
section. However--
(1) accounts of employees of the government of the
District of Columbia shall be paid by the District of
Columbia; and
(2) accounts of employees of Government
corporations or mixed ownership Government corporations
may be paid by the corporations.
Sec. 5584. Claims for overpayment of pay and allowances, and of travel,
transportation and relocation expenses and
allowances
(a) A claim of the United States against a person arising
out of an erroneous payment of pay or allowances made on or
after July 1, 1960, or arising out of an erroneous payment of
travel, transportation or relocation expenses and allowances,
to an employee of an agency, the collection of which would be
against equity and good conscience and not in the best
interests of the United States, may be waived in whole or in
part by--
(1) the authorized official;
(2) the head of an agency when--
(A) the claim is in an amount aggregating
not more than $1,500; and
(B) the waiver is made in accordance with
standards which the authorized official shall
prescribe; or
(3) the Director of the Administrative Office of
the United States Courts when the claim is in an amount
aggregating not more than $10,000 and involves an
officer or employee of the Administrative Office of the
United States Courts, the Federal Judicial Center, or
any of the courts set forth in section 610 of title 28.
(b) The authorized official or the head of the agency, as
the case may be, may not exercise his authority under this
section to waive any claim--
(1) if, in his opinion, there exists, in connection
with the claim, an indication of fraud,
misrepresentation, fault, or lack of good faith on the
part of the employee or any other person having an
interest in obtaining a waiver of the claim;
(2) except in the case of employees of the
Government Printing Office, the Library of Congress,
the Office of the Architect of the Capitol, or the
Botanic Garden, if application for waiver is received
in his office, after the expiration of three years
immediately following the date on which the erroneous
payment of pay was discovered or three years
immediately following October 21, 1968, whichever is
later;
(3) except in the case of employees of the
Government Printing Office, the Library of Congress,
the Office of the Architect of the Capitol, or the
Botanic Garden, if application for waiver is received
in his office after the expiration of three years
immediately following the date on which the erroneous
payment of allowances was discovered or three years
immediately following October 2, 1972, whichever is
later;
(4) in the case of employees of the Government
Printing Office, the Library of Congress, the Office of
the Architect of the Capitol, or the Botanic Garden, if
application for waiver is received in his office after
the expiration of 3 years immediately following the
date on which the erroneous payment of pay or
allowances was discovered or 3 years immediately
following July 25, 1974, whichever is later; or
(5) in the case of a claim involving an erroneous
payment of travel, transportation or relocation
expenses and allowances, if application for waiver is
received in his office after the expiration of 3 years
immediately following the date on which the erroneous
payment was discovered.
(c) A person who has repaid to the United States all or
part of the amount of a claim, with respect to which a waiver
is granted under this section, is entitled, to the extent of
the waiver, to refund, by the employing agency at the time of
the erroneous payment, of the amount repaid to the United
States, if he applies to that employing agency for that refund
within two years following the effective date of the waiver.
The employing agency shall pay that refund in accordance with
this section.
(d) In the audit and settlement of the accounts of any
accountable official, full credit shall be given for any
amounts with respect to which collection by the United States
is waived under this section.
(e) An erroneous payment, the collection of which is waived
under this section, is deemed a valid payment for all purposes.
(f) This section does not affect any authority under any
other statute to litigate, settle, compromise, or waive any
claim of the United States.
(g) For the purpose of this section, ``agency'' means--
(1) an Executive agency;
(2) the Government Printing Office;
(3) the Library of Congress;
(4) the Office of the Architect of the Capitol;
(5) the Botanic Garden; and
(6) the Administrative Office of the United States
Courts, the Federal Judicial Center, and any of the
courts set forth in section 610 of title 28.
For purposes of this section, the Director of the
Administrative Office of the United States Courts shall be the
head of the agency in the case of those entities set forth in
paragraph (6) of this subsection.
(g) \1\ For the purpose of this section, the term
``authorized official'' means--
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\1\ So in original. Section 103(d)(3) of Public Law 104-316 (110
Stat. 3829) added a new subsection (g). There was a subsection (g)
there already, should be redesignated subsection ``(h)''.
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(1) the head of an agency, with respect to an
agency or employee in the legislative branch; or
(2) the Director of the Office of Management and
Budget, with respect to any other agency or employee.
SUBCHAPTER IX--SEVERANCE PAY AND BACK PAY
[Sec. Sec. 5591 to 5594. Repealed. Pub. L. 90-83, Sec. 1(34)(B), Sept.
11, 1967, 81 Stat. 201.]
Sec. 5595. Severance pay
(a) For the purpose of this section--
(1) ``agency'' means--
(A) an Executive agency;
(B) the Library of Congress;
(C) the Government Printing Office;
(D) the government of the District of
Columbia;
(E) the Administrative Office of the United
States Courts, the Federal Judicial Center, and
the courts named by section 610 of title 28;
and
(F) the Office of the Architect of the
Capitol; and
(2) ``employee'' means--
(A) an individual employed in or under an
agency; and
(B) an individual employed by a county
committee established under section 590h(b) of
title 16;
but does not include--
(i) an employee (other than a member of the
Senior Executive Service or the Federal Bureau
of Investigation and Drug Enforcement
Administration Senior Executive Service or an
employee whose pay is fixed under section 5376)
whose rate of basic pay is fixed at a rate
provided for one of the levels of the Executive
Schedule or is in excess of the minimum rate
for the Executive Schedule;
(ii) an employee serving under an
appointment with a definite time limitation,
except one so appointed for full-time
employment without a break in service of more
than 3 days following service under an
appointment without time limitation;
(iii) an alien employee who occupies a
position outside the several States, the
District of Columbia, and the areas and
installations in the Republic of Panama made
available to the United States pursuant to the
Panama Canal Treaty of 1977 and related
agreements (as described in section 3(a) of the
Panama Canal Act of 1979);
(iv) an employee who is subject to
subchapter III of chapter 83 of this title or
any other retirement statute or retirement
system applicable to an employee as defined by
section 2105 of this title or a member of a
uniformed service and, who, at the time of
separation from the service, has fulfilled the
requirements for immediate annuity under such a
statute or system;
(v) an employee who, at the time of
separation from the service, is receiving
compensation under subchapter I of chapter 81
of this title, other than one receiving this
compensation concurrently with pay or on
account of the death of another individual;
(vi) an employee who, at the time of
separation from the service, is entitled to
receive benefits under section 609(b)(1) of the
Foreign Service Act of 1980 or any other
severance pay from the Government;
(vii) an employee of the Tennessee Valley
Authority;
(viii) \1\ an employee of the
Office of the Architect of the Capitol,
who is employed on a temporary when
actually employed basis;
---------------------------------------------------------------------------
\1\ So in original; should be moved 2-ems to the left to align with
(vii).
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(ix) \1\ an employee of the
Government Printing Office, who is
employed on a temporary when actually
employed basis; or
(x) such other employee as may be excluded
by regulations of the President or such other
officer or agency as he may designate.
(b) Under regulations prescribed by the President or such
officer or agency as he may designate, an employee who--
(1) has been employed currently for a continuous
period of at least 12 months; and
(2) is involuntarily separated from the service,
not by removal for cause on charges of misconduct,
delinquency, or inefficiency;
is entitled to be paid severance pay in regular pay periods by
the agency from which separated. However, the Director of the
Administrative Office of the United States may prescribe
regulations to affect the application and operation of this
section to the agencies specified in subsection (a)(1)(E) of
this section. The Architect of the Capitol may prescribe
regulations to effect the application and operation of this
section to the agency specified in subsection (a)(1)(F) of this
section. The Public Printer may prescribe regulations to effect
the application and operation of this section to the agency
specified in subsection (a)(1)(C) of this section.
(c) Severance pay consists of--
(1) a basic severance allowance computed on the
basis of 1 week's basic pay at the rate received
immediately before separation for each year of civilian
service up to and including 10 years for which
severance pay has not been received under this or any
other authority and 2 weeks' basic pay at that rate for
each year of civilian service beyond 10 years for which
severance pay has not been received under this or any
other authority; and
(2) an age adjustment allowance computed on the
basis of 10 percent of the total basic severance
allowance for each year by which the age of the
recipient exceeds 40 years at the time of separation.
Total severance pay under this section may not exceed 1 year's
pay at the rate received immediately before separation. For the
purpose of this subsection, ``basic pay'' includes premium pay
under section 5545(c)(1) of this title.
(d) If an employee is reemployed by the Government of the
United States or the government of the District of Columbia
before the end of the period covered by payments of severance
pay, the payments shall be discontinued beginning with the date
of reemployment and the service represented by the unexpired
portion of the period shall be recredited to the employee for
use in any later computations of severance pay. For the purpose
of subsection (b) (1) of this section, reemployment that causes
severance pay to be discontinued is deemed employment
continuous with that serving as the basis for severance pay.
(e) If the employee dies before the end of the period
covered by payments of severance pay, the payments of severance
pay with respect to the employee shall be continued as if the
employee were living and shall be paid on a pay period basis to
the survivor of the employee in accordance with section 5582(b)
of this title.
(f) Severance pay under this section is not a basis for
payment, and may not be included in the basis for computation,
of any other type of United States or District of Columbia
Government benefits. A period covered by severance pay is not a
period of United States or District of Columbia Government
service or employment.
(g) The Secretary of Agriculture shall prescribe
regulations to effect the application and operation of this
section to an individual named by subsection (a)(2)(B) of this
section.
(h)(1) Severance pay under this section may not be paid
to--
(A) a person described in paragraph (4)(A) during
any period in which the person is employed in a defense
nonappropriated fund instrumentality; or
(B) a person described in paragraph (4)(B) during
any period in which the person is employed in a Coast
Guard nonappropriated fund instrumentality.
(2)(A) Except as provided in subparagraph (B), payment of
severance pay to a person referred to in paragraph (1) may be
resumed upon any involuntary separation of the person from the
position of employment in a nonappropriated fund
instrumentality, not by removal for cause on charges of
misconduct, delinquency, or inefficiency.
(B) Payment of severance pay may not be resumed under
subparagraph (A) in the case of a person who, upon separation,
is entitled to immediate payment of retired or retainer pay as
a member or former member of the uniformed services or to an
immediate annuity under--
(i) a retirement system for persons retiring from
employment by a nonappropriated fund instrumentality;
(ii) subchapter III of chapter 83 of this title;
(iii) subchapter II of chapter 84 of this title; or
(iv) any other retirement system of the Federal
Government for persons retiring from employment with
the Federal Government.
(3) Upon resumption of payment of severance pay under
paragraph (2)(A) in the case of a person separated as described
in such paragraph, the amount of the severance pay so payable
for a period shall be reduced (but not below zero) by the
portion (if any) of the amount of any severance pay payable for
such period to the person by the nonappropriated fund
instrumentality that is attributable to credit for service
taken into account under subsection (c) in the computation of
the amount of the severance pay so resumed.
(4) Paragraph (1) applies to a person who, on or after
January 1, 1987, moves without a break in service--
(A) from employment in the Department of Defense
that is not employment in a defense nonappropriated
fund instrumentality to employment in a defense
nonappropriated fund instrumentality; or
(B) from employment in the Coast Guard that is not
employment in a Coast Guard nonappropriated fund
instrumentality to employment in a Coast Guard
nonappropriated fund instrumentality.
(5) The Secretary of Defense, in consultation with the
Secretary of Transportation, shall prescribe regulations to
carry out this subsection.
(6) In this subsection:
(A) The term ``defense nonappropriated fund
instrumentality'' means a nonappropriated fund
instrumentality of the Department of Defense.
(B) The term ``Coast Guard nonappropriated fund
instrumentality'' means a nonappropriated fund
instrumentality of the Coast Guard.
(C) The term ``nonappropriated fund
instrumentality'' means a nonappropriated fund
instrumentality described in section 2105(c) of this
title.
(i)(1) In the case of an employee of the Department of
Defense who is entitled to severance pay under this section,
the Secretary of Defense or the Secretary of the military
department concerned may, upon application by the employee, pay
the total amount of the severance pay to the employee in one
lump sum.
(2)(A) If an employee paid severance pay in a lump sum
under this subsection is reemployed by the Government of the
United States or the government of the District of Columbia at
such time that, had the employee been paid severance pay in
regular pay periods under subsection (b), the payments of such
pay would have been discontinued under subsection (d) upon such
reemployment, the employee shall repay to the Department of
Defense (for the military department that formerly employed the
employee, if applicable) an amount equal to the amount of
severance pay to which the employee was entitled under this
section that would not have been paid to the employee under
subsection (d) by reason of such reemployment.
(B) The period of service represented by an amount of
severance pay repaid by an employee under subparagraph (A)
shall be considered service for which severance pay has not
been received by the employee under this section.
(C) Amounts repaid to an agency under this paragraph shall
be credited to the appropriation available for the pay of
employees of the agency for the fiscal year in which received.
Amounts so credited shall be merged with, and shall be
available for the
same purposes and the same period as, the other funds in that
appropriation.
(3) If an employee fails to repay to an agency an amount
required to be repaid under paragraph (2)(A), that amount is
recoverable from the employee as a debt due the United States.
(4) This subsection applies with respect to severance pay
payable under this section for separations taking effect on or
after February 10, 1996, and before October 1, 2003.
Sec. 5596. Back pay due to unjustified personnel action
(a) For the purpose of this section, ``agency'' means--
(1) an Executive agency;
(2) the Administrative Office of the United States
Courts, the Federal Judicial Center, and the courts
named by section 610 of title 28;
(3) the Library of Congress;
(4) the Government Printing Office; and
(5) the government of the District of Columbia.
(b)(1) An employee of an agency who, on the basis of a
timely appeal or an administrative determination (including a
decision relating to an unfair labor practice or a grievance)
is found by appropriate authority under applicable law, rule,
regulation, or collective bargaining agreement, to have been
affected by an unjustified or unwarranted personnel action
which has resulted in the withdrawal or reduction of all or
part of the pay, allowances, or differentials of the employee--
(A) is entitled, on correction of the personnel
action, to receive for the period for which the
personnel action was in effect--
(i) an amount equal to all or any part of
the pay, allowances, or differentials, as
applicable which the employee normally would
have earned or received during the period if
the personnel action had not occurred, less any
amounts earned by the employee through other
employment during that period; and
(ii) reasonable attorney fees related to
the personnel action which, with respect to any
decision relating to an unfair labor practice
or a grievance processed under a procedure
negotiated in accordance with chapter 71 of
this title, or under chapter 11 of title I of
the Foreign Service Act of 1980, shall be
awarded in accordance with standards
established under section 7701(g) of this
title; and
(B) for all purposes, is deemed to have performed
service for the agency during that period, except
that--
(i) annual leave restored under this
paragraph which is in excess of the maximum
leave accumulation permitted by law shall be
credited to a separate leave account for the
employee and shall be available for use by the
employee within the time limits prescribed by
regulations of the Office of Personnel
Management, and
(ii) annual leave credited under clause (i)
of this subparagraph but unused and still
available to the employee under regulations
prescribed by the Office shall be included in
the lump-sum payment under section 5551 or
5552(1) of this title but may not be retained
to the credit of the employee under section
5552(2) of this title.
(2)(A) An amount payable under paragraph (1)(A)(i) of this
subsection shall be payable with interest.
(B) Such interest--
(i) shall be computed for the period beginning on
the effective date of the withdrawal or reduction
involved and ending on a date not more than 30 days
before the date on which payment is made;
(ii) shall be computed at the rate or rates in
effect under section 6621(a)(1) of the Internal Revenue
Code of 1986 during the period described in clause (i);
and
(iii) shall be compounded daily.
(C) Interest under this paragraph shall be paid out of
amounts available for payments under paragraph (1) of this
subsection.
(3) This subsection does not apply to any reclassification
action nor authorize the setting aside of an otherwise proper
promotion by a selecting official from a group of properly
ranked and certified candidates.
(4) The pay, allowances, or differentials granted under
this section for the period for which an unjustified or
unwarranted personnel action was in effect shall not exceed
that authorized by the applicable law, rule, regulations, or
collective bargaining agreement under which the unjustified or
unwarranted personnel action is found, except that in no case
may pay, allowances, or differentials be granted under this
section for a period beginning more than 6 years before the
date of the filing of a timely appeal or, absent such filing,
the date of the administrative determination.
(5) For the purpose of this subsection, ``grievance'' and
``collective bargaining agreement'' have the meanings set forth
in section 7103 of this title and (with respect to members of
the Foreign Service) in sections 1101 and 1002 of the Foreign
Service Act of 1980, ``unfair labor practice'' means an unfair
labor practice described in section 7116 of this title and
(with respect to members of the Foreign Service) in section
1015 of the Foreign Service Act of 1980, and ``personnel
action'' includes the omission or failure to take an action or
confer a benefit.
(c) The Office of Personnel Management shall prescribe
regulations to carry out this section. However, the regulations
are not applicable to the Tennessee Valley Authority and its
employees, or to the agencies specified in subsection (a)(2) of
this section.
Sec. 5597. Separation pay
(a) For the purpose of this section--
(1) the term ``Secretary'' means the Secretary of
Defense;
(2) the term ``defense agency'' means an agency of
the Department of Defense, as further defined under
regulations prescribed by the Secretary; and
(3) the term ``employee'' means an employee of a
defense agency, serving under an appointment without
time limitation, who has been currently employed for a
continuous period of at least 12 months, except that
such term does not include--
(A) a reemployed annuitant under subchapter
III of chapter 83, chapter 84, or another
retirement system for employees of the
Government; or
(B) an employee having a disability on the
basis of which such employee is or would be
eligible for disability retirement under any of
the retirement systems referred to in
subparagraph (A).
(b) In order to avoid or minimize the need for involuntary
separations due to a reduction in force, base closure,
reorganization, transfer of function, workforce restructuring
(to meet mission needs, achieve one or more strength
reductions, correct skill imbalances, or reduce the number of
high-grade, managerial, or supervisory positions), or other
similar action affecting 1 or more defense agencies, the
Secretary shall establish a program under which separation pay
may be offered to encourage eligible employees to separate from
service voluntarily (whether by retirement or resignation).
(c) Under the program, separation pay may be offered by a
defense agency only--
(1) with the prior consent, or on the authority, of
the Secretary; and
(2) to employees within such occupational groups or
geographic locations, or subject to such other similar
objective and nonpersonal limitations or conditions, as
the Secretary may require.
A determination of which employees are within the scope of an
offer of separation pay shall be made only on the basis of
consistent and well-documented application of the relevant
criteria.
(d) Such separation pay--
(1) shall be paid in a lump-sum or in installments;
(2) shall be equal to the lesser of--
(A) an amount equal to the amount the
employee would be entitled to receive under
section 5595(c) if the employee were entitled
to payment under such section; or
(B) $25,000;
(3) shall not be a basis for payment, and shall not
be included in the computation, of any other type of
Government benefit;
(4) shall not be taken into account for purposes of
determining the amount of any severance pay to which an
individual may be entitled under section 5595 based on
any other separation; and
(5) if paid in installments, shall cease to be paid
upon the recipient's acceptance of employment by the
Federal Government, or commencement of work under a
personal services contract, as described in subsection
(g)(1).
(e) No amount shall be payable under this section based on
any separation occurring after September 30, 2003.
(f) The Secretary shall prescribe such regulations as may
be necessary to carry out this section.
(g)(1) An employee who receives separation pay under this
section on the basis of a separation occurring on or after the
date of the enactment of the Federal Workforce Restructuring
Act of 1994 and accepts employment with the Government of the
United States, or who commences work for an agency of the
United States through a personal services contract with the
United States, within 5 years after the date of the separation
on which payment of the separation pay is based shall be
required to repay the entire amount of the separation pay to
the defense agency that paid the separation pay.
(2) If the employment is with an Executive agency, the
Director of the Office of Personnel Management may, at the
request of the head of the agency, waive the repayment if the
individual involved possesses unique abilities and is the only
qualified applicant available for the position.
(3) If the employment is with an entity in the legislative
branch, the head of the entity or the appointing official may
waive the repayment if the individual involved possesses unique
abilities and is the only qualified applicant available for the
position.
(4) If the employment is with the judicial branch, the
Director of the Administrative Office of the United States
Courts may waive the repayment if the individual involved
possesses unique abilities and is the only qualified applicant
available for the position.
(5) If the employment is without compensation, the
appointing official may waive the repayment.
(h)(1)(A) In addition to any other payment that it is
required to make under subchapter III of chapter 83 or chapter
84, the Department of Defense shall remit to the Office of
Personnel Management an amount equal to 15 percent of the final
basic pay of each covered employee.
(B) If the employee is one with respect to whom a
remittance would otherwise be required under section 4(a) of
the Federal Workforce Restructuring Act of 1994 based on the
separation involved, the remittance under this subsection shall
be instead of the remittance otherwise required under such
section 4(a).
(2) Amounts remitted under paragraph (1) shall be deposited
in the Treasury of the United States to the credit of the Civil
Service Retirement and Disability Fund.
(3) For the purposes of this subsection--
(A) the term ``covered employee'' means an employee
who is subject to subchapter III of chapter 83 or
chapter 84 and to whom a voluntary separation incentive
has been paid under this section on the basis of a
separation occurring on or after October 1, 1997; and
(B) the term ``final basic pay'' has the meaning
given such term in section 4(a)(2) of the Federal
Workforce Restructuring Act of 1994.
(i)(1) Notwithstanding any other provision of this section,
during fiscal year 2001, separation pay may be offered under
the program carried out under this section with respect to
workforce restructuring only to persons who, upon separation,
are entitled to an immediate annuity under section 8336, 8412,
or 8414 of this title and are otherwise eligible for the
separation pay under this section.
(2) In the administration of the program under this section
during fiscal year 2001, the Secretary shall ensure that not
more than 1,000 employees are, as a result of workforce
restructuring, separated from service in that fiscal year
entitled to separation pay under this section.
(3) Separation pay may not be offered as a result of
workforce restructuring under the program carried out under
this section after fiscal year 2003.
CHAPTER 57--TRAVEL, TRANSPORTATION, AND SUBSISTENCE
SUBCHAPTER I--TRAVEL AND SUBSISTENCE EXPENSES; MILEAGE ALLOWANCES
Sec.
5701. Definitions.
5702. Per diem; employees traveling on official business.
5703. Per diem, travel, and transportation expenses; experts and
consultants; individuals serving without pay.
5704. Mileage and related allowances.
5705. Advancements and deductions.
5706. Allowable travel expenses.
5706a. Subsistence and travel expenses for threatened law enforcement
personnel.
5706b. Interview expenses.
5706c. Reimbursement for taxes incurred on money received for travel
expenses.
5707. Regulations and reports.
5707a. Adherence to fire safety guidelines in establishing rates and
discounts for lodging expenses.
5708. Effect on other statutes.
5709. Air evacuation patients: furnished subsistence.
5710. Authority for travel expenses test programs.
SUBCHAPTER II--TRAVEL AND TRANSPORTATION EXPENSES; NEW APPOINTEES,
STUDENT TRAINEES, AND TRANSFERRED EMPLOYEES
5721. Definitions.
5722. Travel and transportation expenses of new appointees; posts of
duty outside the continental United States.
5723. Travel and transportation expenses of new appointees and
student trainees.
5724. Travel and transportation expenses of employees transferred;
advancement of funds; reimbursement on commuted basis.
5724a. Relocation expenses of employees transferred or reemployed.
5724b. Taxes on reimbursements for travel, transportation, and
relocation expenses of employees transferred.
5724c. Relocation services.
5725. Transportation expenses; employees assigned to danger areas.
5726. Storage expenses; household goods and personal effects.
5727. Transportation of motor vehicles.
5728. Travel and transportation expenses; vacation leave.
5729. Transportation expenses; prior return of family.
5730. Funds available.
5731. Expenses limited to lowest first-class rate.
5732. General average contribution; payment or reimbursement.
5733. Expeditious travel.
5734. Travel, transportation, and relocation expenses of employees
transferred from the Postal Service.
5735. Travel, transportation, and relocation expenses of employees
transferring to the United States Postal Service.
5736. Travel, transportation, and relocation expenses of certain
nonappropriated fund employees.
5737. Relocation expenses of an employee who is performing an
extended assignment.
5738. Regulations.
5739. Authority for relocation expenses test programs.
SUBCHAPTER III--TRANSPORTATION OF REMAINS, DEPENDENTS, AND EFFECTS
5741. General prohibition.
5742. Transportation of remains, dependents, and effects; death
occurring away from official station or abroad.
SUBCHAPTER IV--MISCELLANEOUS PROVISIONS
5751. Travel expenses of witnesses.
5752. Travel expenses of Senior Executive Service candidates.
5753. Recruitment and relocation bonuses.
5754. Retention allowances.
5755. Supervisory differentials.
5756. Home marketing incentive payment.
SUBCHAPTER I--TRAVEL AND SUBSISTENCE EXPENSES; MILEAGE ALLOWANCES
Sec. 5701. Definitions
Except as otherwise provided in section 5707(d), for the
purpose of this subchapter--
(1) ``agency'' means--
(A) an Executive agency;
(B) a military department;
(C) an office, agency, or other
establishment in the legislative branch;
(D) an office, agency, or other
establishment in the judicial branch; and
(E) the government of the District of
Columbia;
but does not include--
(i) a Government controlled corporation;
(ii) a Member of Congress; or
(iii) an office or committee of either
House of Congress or of the two Houses;
(2) ``employee'' means an individual employed in or
under an agency including an individual employed
intermittently in the Government service as an expert
or consultant and paid on a daily when-actually-
employed basis and an individual serving without pay or
at $1 a year;
(3) ``subsistence'' means lodging, meals, and other
necessary expenses for the personal sustenance and
comfort of the traveler;
(4) ``per diem allowance'' means a daily payment
instead of actual expenses for subsistence and fees or
tips to porters and stewards;
(5) ``Government'' means the Government of the
United States and the government of the District of
Columbia; and
(6) ``continental United States'' means the several
States and the District of Columbia, but does not
include Alaska or Hawaii.
Sec. 5702. Per diem; employees traveling on official business
(a)(1) Under regulations prescribed pursuant to section
5707 of this title, an employee, when traveling on official
business away from the employee's designated post of duty, or
away from the employee's home or regular place of business (if
the employee is described in section 5703 of this title), is
entitled to any one of the following:
(A) a per diem allowance at a rate not to exceed
that established by the Administrator of General
Services for travel within the continental United
States, and by the President or his designee for travel
outside the continental United States;
(B) reimbursement for the actual and necessary
expenses of official travel not to exceed an amount
established by the Administrator for travel within the
continental United States or an amount established by
the President or his designee for travel outside the
continental United States; or
(C) a combination of payments described in
subparagraphs (A) and (B) of this paragraph.
(2) Any per diem allowance or maximum amount of
reimbursement shall be established to the extent feasible, by
locality.
(3) For travel consuming less than a full day, the payment
prescribed by regulation shall be allocated in such manner as
the Administrator may prescribe.
(b)(1) Under regulations prescribed pursuant to section
5707 of this title, an employee who is described in subsection
(a) of this section and who abandons the travel assignment
prior to its completion--
(A) because of an incapacitating illness or injury
which is not due to the employee's own misconduct is
entitled to reimbursement for expenses of
transportation to the employee's designated post of
duty, or home or regular place of business, as the case
may be, and to payments pursuant to subsection (a) of
this section until that location is reached; or
(B) because of a personal emergency situation (such
as serious illness, injury, or death of a member of the
employee's family, or an emergency situation such as
fire, flood, or act of God), may be allowed, with the
approval of an appropriate official of the agency
concerned, reimbursement for expenses of transportation
to the employee's designated post of duty, or home or
regular place of business, as the case may be, and
payments pursuant to subsection (a) of this section
until that location is reached.
(2)(A) Under regulations prescribed pursuant to section
5707 of this title, an employee who is described in subsection
(a) of this section and who, with the approval of an
appropriate official of the agency concerned, interrupts the
travel assignment prior to its completion for a reason
specified in subparagraph (A) or (B) of paragraph (1) of this
subsection, may be allowed (subject to the limitation provided
in subparagraph (B) of this paragraph)--
(i) reimbursement for expenses of transportation to
the location where necessary medical services are
provided or the emergency situation exists,
(ii) payments pursuant to subsection (a) of this
section until that location is reached, and
(iii) such reimbursement and payments for return to
such assignment.
(B) The reimbursement which an employee may be allowed
pursuant to subparagraph (A) of this paragraph shall be the
employee's actual costs of transportation to the location where
necessary medical services are provided or the emergency
exists, and return to assignment from such location, less the
costs of transportation which the employee would have incurred
had such travel begun and ended at the employee's designated
post of duty or home or regular place of business, as the case
may be. The payments which an employee may be allowed pursuant
to subparagraph (A) of this paragraph shall be based on the
additional time (if any) which was required for the employee's
transportation as a consequence of the transportation's having
begun and ended at a location on the travel assignment (rather
than at the employee's designated post of duty, or home or
regular place of business, as the case may be).
(3) Subject to the limitations contained in regulations
prescribed pursuant to section 5707 of this title, an employee
who is described in subsection (a) of this section and who
interrupts the travel assignment prior to its completion
because of an incapacitating illness or injury which is not due
to the employee's own misconduct is entitled to payments
pursuant to subsection (a) of this section at the location
where the interruption occurred.
(c) This section does not apply to a justice or judge,
except to the extent provided by section 456 of title 28.
Sec. 5703. Per diem, travel, and transportation expenses; experts and
consultants; individuals serving without pay
An employee serving intermittently in the Government
service as an expert or consultant and paid on a daily when-
actually-employed basis, or serving without pay or at $1 a
year, may be allowed travel or transportation expenses, under
this subchapter, while away from his home or regular place of
business and at the place of employment or service.
Sec. 5704. Mileage and related allowances \1\
---------------------------------------------------------------------------
\1\ Editorially supplied. Section 634(a) of the Treasury, Postal
Service and General Government Appropriations Act, 1995 (Public Law
103-329) amended section 5704 to read as shown below. The amendment did
not include a section heading.
---------------------------------------------------------------------------
(a)(1) Under regulations prescribed under section 5707 of
this title, an employee who is engaged on official business for
the Government is entitled to a rate per mile established by
the Administrator of General Services, instead of the actual
expenses of transportation, for the use of a privately owned
automobile when that mode of transportation is authorized or
approved as more advantageous to the Government. In any year in
which the Internal Revenue Service establishes a single
standard mileage rate for optional use by taxpayers in
computing the deductible costs of operating their automobiles
for business purposes, the rate per mile established by the
Administrator shall not exceed the single standard mileage rate
established by the Internal Revenue Service.
(2) Under regulations prescribed under section 5707 of this
title, an employee who is engaged on official business for the
Government is entitled to a rate per mile established by the
Administrator of General Services, instead of the actual
expenses of transportation, for the use of a privately owned
airplane or a privately owned motorcycle when that mode of
transportation is authorized or approved as more advantageous
to the Government.
(b) A determination that travel by a privately owned
vehicle is more advantageous to the Government is not required
under subsection (a) of this section when payment on a mileage
basis is limited to the cost of travel by common carrier
including per diem.
(c) Notwithstanding the provisions of subsections (a) and
(b) of this section, in any case in which an employee who is
engaged on official business for the Government chooses to use
a privately owned vehicle in lieu of a Government vehicle,
payment on a mileage basis is limited to the cost of travel by
a Government vehicle.
(d) In addition to the rate per mile authorized under
subsection (a) of this section, the employee may be reimbursed
for--
(1) parking fees;
(2) ferry fees;
(3) bridge, road, and tunnel costs; and
(4) airplane landing and tie-down fees.
Sec. 5705. Advancements and deductions
An agency may advance, through the proper disbursing
official, to an employee entitled to per diem or mileage
allowances under this subchapter, a sum considered advisable
with regard to the character and probable duration of the
travel to be performed. A sum advanced and not used for
allowable travel expenses is recoverable from the employee or
his estate by--
(1) setoff against accrued pay, retirement credit,
or other amount due the employee;
(2) deduction from an amount due from the United
States; and
(3) such other method as is provided by law.
Sec. 5706. Allowable travel expenses
Except as otherwise permitted by this subchapter or by
statutes relating to members of the uniformed services, only
actual and necessary travel expenses may be allowed to an
individual holding employment or appointment under the United
States.
Sec. 5706a. Subsistence and travel expenses for threatened law
enforcement personnel
(a) Under regulations prescribed pursuant to section 5707
of this title, when the life of an employee who serves in a law
enforcement, investigative, or similar capacity, or members of
such employees' immediate family, is threatened as a result of
the employee's assigned duties, the head of the agency
concerned may approve appropriate subsistence payments for the
employee or members of the employee's family (or both) while
occupying temporary living accommodations at or away from the
employee's designated post of duty .
(b) When a situation described in subsection (a) of this
section requires the employee or members of the employee's
family (or both) to be temporarily relocated away from the
employee's designated post of duty, the head of the agency
concerned may approve transportation expenses to and from such
alternate location.
Sec. 5706b. Interview expenses
An individual being considered for employment by an agency
may be paid travel or transportation expenses under this
subchapter for travel to and from pre-employment interviews
determined necessary by the agency.
Sec. 5706c. Reimbursement for taxes incurred on money received for
travel expenses
(a) Under regulations prescribed pursuant to section 5707
of this title, the head of an agency or department, or his or
her designee, may use appropriations or other funds available
to the agency for administrative expenses, for the
reimbursement of Federal, State, and local income taxes
incurred by an employee of the agency or by an employee and
such employee's spouse (if filing jointly), for any travel or
transportation reimbursement made to an employee for which
reimbursement or an allowance is provided.
(b) Reimbursements under this section shall include an
amount equal to all income taxes for which the employee and
spouse, as the case may be, would be liable due to the
reimbursement for the taxes referred to in subsection (a). In
addition, reimbursements under this section shall include
penalties and interest, for the tax years 1993 and 1994 only,
as a result of agencies failing to withhold the appropriate
amounts for tax liabilities of employees affected by the change
in the deductibility of travel expenses made by Public Law 102-
486.
Sec. 5707. Regulations and reports
(a)(1) The Administrator of General Services shall
prescribe regulations necessary for the administration of this
subchapter, except that the Director of the Administrative
Office of the United States Courts shall prescribe such
regulations with respect to official travel by employees of the
judicial branch of the Government.
(2) Regulations promulgated to implement section 5702 or
5706a of this title shall be transmitted to the appropriate
committees of the Congress and shall not take effect until 30
days after such transmittal.
(b) The Administrator of General Services shall prescribe
the mileage reimbursement rates for use on official business of
privately owned airplanes, privately owned automobiles, and
privately owned motorcycles while engaged on official business
as provided for in section 5704 of this title as follows:
(1)(A) The Administrator of General Services, in
consultation with the Secretary of Transportation, the
Secretary of Defense, and representatives of
organizations of employees of the Government, shall
conduct periodic investigations of the cost of travel
and the operation of privately owned vehicles to
employees while engaged on official business, and shall
report the results of such investigations to Congress
at least once a year.
(B) In conducting the periodic investigations, the
Administrator shall review and analyze among other
factors--
(i) depreciation of original vehicle cost;
(ii) gasoline and oil (excluding taxes);
(iii) maintenance, accessories, parts, and
tires;
(iv) insurance; and
(v) State and Federal taxes.
(2)(A) The Administrator shall issue regulations
under this section which--
(i) shall prescribe a mileage reimbursement
rate which reflects the current costs as
determined by the Administrator of operating
privately owned automobiles, and which shall
not exceed, as provided in section 5704(a)(1)
of this title, the single standard mileage rate
established by the Internal Revenue Service,
and
(ii) shall prescribe mileage reimbursement
rates which reflect the current costs as
determined by the Administrator of operating
privately owned airplanes and motorcycles.
(B) At least once each year after the issuance of
the regulations described in subparagraph (A) of this
paragraph, the Administrator shall determine, based
upon the results of the cost investigation, specific
figures, each rounded to the nearest half cent, of the
average, actual cost per mile during the period for the
use of a privately owned airplane, automobile, and
motorcycle.
(C) The Administrator shall report the specific
figures to Congress not later than five working days
after the Administrator makes the cost determination.
Each such report shall be printed in the Federal
Register.
(D) The mileage reimbursement rates contained in
the regulations prescribed under this section shall be
adjusted within thirty days following the submission of
the report under subparagraph (C) of this paragraph.
(c) The Administrator of General Services shall
periodically, but at least every 2 years, submit to the
Director of the Office of Management and Budget an analysis of
estimated total agency payments for such items as travel and
transportation of people, average costs and duration of trips,
and purposes of official travel; and of estimated total agency
payments for employee relocation. This analysis shall be based
on a sampling survey of agencies each of which spent more than
$5,000,000 during the previous fiscal year on travel and
transportation payments, including payments for employee
relocation. Agencies shall provide to the Administrator the
necessary information in a format prescribed by the
Administrator and approved by the Director.
[(d) Repealed. Pub. L. 104-201, Sec. 1614(a)(1), Sept. 23,
1996, 110 Stat. 2739.]
Sec. 5707a. Adherence to fire safety guidelines in establishing rates
and discounts for lodging expenses
(a)(1) For the purpose of making payments under this
chapter for lodging expenses incurred in a State, each agency
shall ensure that not less than 90 percent of the commercial-
lodging room nights for employees of that agency for a fiscal
year are booked in approved places of public accommodation.
(2) Each agency shall establish explicit procedures to
satisfy the percentage requirement of paragraph (1).
(3) An agency shall be considered to be in compliance with
the percentage requirement of paragraph (1) until September 30,
2002, and after that date if travel arrangements of the agency,
whether made for civilian employees, members of the uniformed
services, or foreign service personnel, are made through travel
management processes designed to book commercial lodging in
approved places of public accommodation, whenever available.
(b) Studies or surveys for the purposes of establishing per
diem rates for lodging expenses under this chapter shall be
limited to approved places of public accommodation. The
provisions of this subsection shall not apply with respect to
studies and surveys that are conducted in any jurisdiction that
is not a State.
(c) The Administrator of General Services may not include
in any directory which lists lodging accommodations any hotel,
motel, or other place of public accommodation that is not an
approved place of public accommodation.
(d) The Administrator of General Services shall include in
each directory which lists lodging accommodations a description
of the access and safety devices, including appropriate
emergency alerting devices, which each listed place of public
accommodation provides for guests who are hearing-impaired or
visually or physically handicapped.
(e) The Administrator of General Services may take any
additional actions the Administrator determines appropriate to
facilitate the ability of employees traveling on official
business to stay at approved places of public accommodation.
(f) For purposes of this section:
(1) The term ``agency'' does not include the
government of the District of Columbia.
(2) The term ``approved places of public
accommodation'' means hotels, motels, and other places
of public accommodation that are listed by the Director
of the Federal Emergency Management Agency as meeting
the requirements of the fire prevention and control
guidelines described in section 29 of the Federal Fire
Prevention and Control Act of 1974 (15 U.S.C. 2225).
(3) The term ``State'' means any State, the
District of Columbia, the Commonwealth of Puerto Rico,
the Commonwealth of the Northern Mariana Islands, the
Trust Territory of the Pacific Islands, the Virgin
Islands, Guam, American Samoa, or any other territory
or possession of the United States.
Sec. 5708. Effect on other statutes
This subchapter does not modify or repeal--
(1) any statute providing for the traveling
expenses of the President;
(2) any statute providing for mileage allowances
for Members of Congress;
(3) any statute fixing or permitting rates higher
than the maximum rates established under this
subchapter; or
(4) any appropriation statute item for examination
of estimates in the field.
Sec. 5709. Air evacuation patients: furnished subsistence
Notwithstanding any other provision of law, and under
regulations prescribed under section 5707 of this title, an
employee and his dependents may be furnished subsistence
without charge while being evacuated as a patient by military
aircraft of the United States.
Sec. 5710. Authority for travel expenses test programs
(a)(1) Notwithstanding any other provision of this
subchapter, under a test program which the Administrator of
General Services determines to be in the interest of the
Government and approves, an agency may pay through the proper
disbursing official for a period not to exceed 24 months any
necessary travel expenses in lieu of any payment otherwise
authorized or required under this subchapter. An agency shall
include in any request to the Administrator for approval of
such a test program an analysis of the expected costs and
benefits and a set of criteria for evaluating the effectiveness
of the program.
(2) Any test program conducted under this section shall be
designed to enhance cost savings or other efficiencies that
accrue to the Government.
(3) Nothing in this section is intended to limit the
authority of any agency to conduct test programs.
(b) The Administrator shall transmit a copy of any test
program approved by the Administrator under this section to the
appropriate committees of the Congress at least 30 days before
the effective date of the program.
(c) An agency authorized to conduct a test program under
subsection (a) shall provide to the Administrator and the
appropriate committees of the Congress a report on the results
of the program no later than 3 months after completion of the
program.
(d) No more than 10 test programs under this section may be
conducted simultaneously.
(e) The authority to conduct test programs under this
section shall expire 7 years after the date of the enactment of
the Travel and Transportation Reform Act of 1998.
SUBCHAPTER II--TRAVEL AND TRANSPORTATION EXPENSES; NEW APPOINTEES,
STUDENT TRAINEES, AND TRANSFERRED EMPLOYEES
Sec. 5721. Definitions
For the purpose of this subchapter--
(1) ``agency'' means--
(A) an Executive agency;
(B) a military department;
(C) a court of the United States;
(D) the Administrative Office of the United
States Courts;
(E) the Library of Congress;
(F) the Botanic Garden;
(G) the Government Printing Office; and
(H) the government of the District of
Columbia;
but does not include a Government controlled
corporation;
(2) ``employee'' means an individual employed in or
under an agency;
(3) ``continental United States'' means the several
States and the District of Columbia, but does not
include Alaska or Hawaii;
(4) ``Government'' means the government of the
United States and the government of the District of
Columbia;
(5) ``appropriation'' includes funds made available
by statute under section 9104 of title 31;
(6) ``United States'' means the several States, the
District of Columbia, the Commonwealth of Puerto Rico,
the Commonwealth of the Northern Mariana Islands, the
territories and possessions of the United States, and
the areas and installations in the Republic of Panama
that are made available to the United States pursuant
to the Panama Canal Treaty of 1977 and related
agreements (as described in section 3(a) of the Panama
Canal Act of 1979); and
(7) ``Foreign Service of the United States'' means
the Foreign Service as constituted under the Foreign
Service Act of 1980.
Sec. 5722. Travel and transportation expenses of new appointees; posts
of duty outside the continental United States
(a) Under regulations prescribed under section 5738 of this
title and subject to subsections (b) and (c) of this section,
an agency may pay from its appropriations--
(1) travel expenses of a new appointee and
transportation expenses of his immediate family and his
household goods and personal effects from the place of
actual residence at the time of appointment to the
place of employment outside the continental United
States;
(2) these expenses on the return of an employee
from his post of duty outside the continental United
States to the place of his actual residence at the time
of assignment to duty outside the continental United
States; and
(3) the expenses of transporting a privately owned
motor vehicle as authorized under section 5727(c) of
this title.
(b) An agency may pay expenses under subsection (a)(1) of
this section only after the individual selected for appointment
agrees in writing to remain in the Government service for a
minimum period of--
(1) one school year as determined under chapter 25
of title 20, if selected for appointment to a teaching
position, except as a substitute, in the Department of
Defense under that chapter; or
(2) 12 months after his appointment, if selected
for appointment to any other position;
unless separated for reasons beyond his control which are
acceptable to the agency concerned. If the individual violates
the agreement, the money spent by the Government for the
expenses is recoverable from the individual as a debt due the
Government.
(c) An agency may pay expenses under subsection (a)(2) of
this section only after the individual has served for a minimum
period of--
(1) one school year as determined under chapter 25
of title 20, if employed in a teaching position, except
as a substitute, in the Department of Defense under
that chapter; or
(2) not less than one nor more than 3 years
prescribed in advance by the head of the agency, if
employed in any other position;
unless separated for reasons beyond his control which are
acceptable to the agency concerned. These expenses are payable
whether the separation is for Government purposes or for
personal convenience.
(d) This section does not apply to appropriations for the
Foreign Service of the United States.
Sec. 5723. Travel and transportation expenses of new appointees and
student trainees
(a) Under regulations prescribed under section 5738 of this
title and subject to subsections (b) and (c) of this section,
an agency may pay from its appropriations--
(1) travel expenses (A) of a new appointee, or a
student trainee when assigned on completion of college
work, to any position, (B) of a new appointee to the
Senior Executive Service or the Federal Bureau of
Investigation and Drug Enforcement Administration
Senior Executive Service, or (C) of any person
appointed by the President to a position the rate of
pay for which is equal to or higher than the minimum
rate of pay payable for a position classified above GS-
15 pursuant to section 5108;
(2) transportation expenses of his immediate family
and his household goods and personal effects to the
extent authorized by section 5724 of this title; and
(3) the expenses of transporting a privately owned
motor vehicle as authorized under section 5727(c) of
this title;
from his place of residence at the time of selection or
assignment to his duty station. If the travel and
transportation expenses of a student trainee were paid when he
was appointed, they may not be paid when he is assigned after
completion of college work. Travel expenses payable under this
subsection may include the per diem and mileage allowances
authorized for employees by subchapter I of this chapter.
Advances of funds may be made for the expenses authorized by
this subsection to the extent authorized by section 5724(f) of
this title. In the case of an appointee described in paragraph
(1) who has performed transition activities under section 3 of
the Presidential Transition Act of 1963 (3 U.S.C. 102 note),
the provisions of paragraphs (1) and (2) may apply to travel
and transportation expenses from the place of residence of such
appointee (at the time of relocation following the most recent
general elections held to determine the electors of the
President) to the assigned duty station of such appointee.
(b) An agency may pay travel and transportation expenses
under subsection (a) of this section only after the individual
selected or assigned agrees in writing to remain in the
Government service for 12 months after his appointment or
assignment, unless separated for reasons beyond his control
which are acceptable to the agency concerned. If the individual
violates the agreement, the money spent by the Government for
the expenses is recoverable from the individual as a debt due
the Government.
(c) An agency may pay travel and transportation expenses
under subsection (a) of this section whether or not the
individual selected has been appointed at the time of the
travel. In the case of an appointee described in subsection
(a)(1) who has performed transition activities under section 3
of the Presidential Transition Act of 1963 (3 U.S.C. 102 note),
the travel or transportation shall take place at any time after
the most recent general elections held to determine the
electors of the President.
(d) This section does not impair or otherwise affect the
authority of an agency under existing statute to pay travel and
transportation expenses of individuals named by subsection (a)
of this section.
Sec. 5724. Travel and transportation expenses of employees transferred;
advancement of funds; reimbursement on commuted
basis
(a) Under regulations prescribed under section 5738 of this
title and when the head of the agency concerned or his designee
authorizes or approves, the agency shall pay from Government
funds--
(1) the travel expenses of an employee transferred
in the interest of the Government from one official
station or agency to another for permanent duty, and
the transportation expenses of his immediate family, or
a commutation thereof under section 5704 of this title;
(2) the expenses of transporting, packing, crating,
temporarily storing, draying, and unpacking his
household goods and personal effects not in excess of
18,000 pounds net weight; and
(3) upon the separation (or death in service) of a
career appointee, as defined in section 3132(a)(4) of
this title, the travel expenses of that individual (if
applicable), the transportation expenses of the
immediate family of such individual, and the expenses
of moving (including transporting, packing, crating,
temporarily storing, draying, and unpacking) the
household goods of such individual and personal effects
not in excess of eighteen thousand pounds net weight,
to the place where the individual will reside (or, in
the case of a career appointee who dies in service or
who dies after separating but before the travel,
transportation, and moving is completed, to the place
where the family will reside) within the United States,
its territories or possessions \1\ or the Commonwealth
of Puerto Rico, if such individual--
---------------------------------------------------------------------------
\1\ Section 3550(c)(1) of the National Defense Authorization Act
for Fiscal Year 1998 (Public Law 105-85; 111 Stat. 2074) amended this
paragraph by striking ``, the Commonwealth of Puerto Rico,'' and all
that follows through ``Panama Canal Act of 1979'' and inserting ``or
the Commonwealth of Puerto Rico''. Section 6(4)(A) of the Travel and
Transportation Reform Act of 1998 (Public Law 105-264; 112 Stat. 2356)
attempted to amend this paragraph by striking ``, its territories or
possessions'' and all that follows through ``1979''. The term ``1979''
does not appear thus the amendment could not be executed.
---------------------------------------------------------------------------
(A) during or after the five years
preceding eligibility to receive an annuity
under subchapter III of chapter 83, or of
chapter 84 of this title, has been transferred
in the interest of the Government from one
official station to another for permanent duty
as a career appointee in the Senior Executive
Service or as a director under section
4103(a)(8) of title 38 (as in effect on
November 17, 1988); and
(B) is eligible to receive an annuity upon
such separation (or, in the case of death in
service, met the requirements for being
considered eligible to receive an annuity, as
of date of death) under the provisions of
subchapter III of chapter 83 or chapter 84 of
this title.
(b) Under regulations prescribed under section 5738 of this
title, an employee who transports a house trailer or mobile
dwelling inside the continental United States, inside Alaska,
or between the continental United States and Alaska, for use as
a residence, and who otherwise would be entitled to
transportation of household goods and personal effects under
subsection (a) of this section, is entitled, instead of that
transportation, to--
(1) a reasonable allowance for transportation of
the house trailer or mobile dwelling, if the trailer or
dwelling is transported by the employee; or
(2) commercial transportation of the house trailer
or mobile dwelling, at Government expense, or
reimbursement to the employee therefor, including the
payment of necessary tolls, charges, and permit fees,
if the trailer or dwelling is not transported by the
employee.
However, payment under this subsection may not exceed the
maximum payment to which the employee otherwise would be
entitled under subsection (a) of this section for
transportation and temporary storage of his household goods and
personal effects in connection with this transfer.
(c) Under regulations prescribed under section 5738 of this
title, an employee who transfers between points inside the
continental United States, instead of being paid for the actual
expenses of transporting, packing, crating, temporarily
storing, draying, and unpacking of household goods and personal
effects, shall be reimbursed on a commuted basis at the rates
per 100 pounds that are fixed by zones in the regulations. The
reimbursement may not exceed the amount which would be
allowable for the authorized weight allowance. However, under
regulations prescribed under section 5738 of this title,
payment of actual expenses may be made when the head of the
agency determines that payment of actual expenses is more
economical to the Government.
(d) When an employee transfers to a post of duty outside
the continental United States, his expenses of travel and
transportation to and from the post shall be allowed to the
same extent and with the same limitations prescribed for a new
appointee under section 5722 of this title.
(e) When an employee transfers from one agency to another,
the agency to which he transfers pays the expenses authorized
by this section. However, under regulations prescribed under
section 5738 of this title, in a transfer from one agency to
another because of a reduction in force or transfer of
function, expenses authorized by this section and sections
5726(b) and 5727 of this title (other than expenses authorized
in connection with a transfer to a foreign country) and by
section 5724a (a) through (f) of this title may be paid in
whole or in part by the agency from which the employee
transfers or by the agency to which he transfers, as may be
agreed on by the heads of the agencies concerned.
(f) An advance of funds may be made to an employee under
regulations prescribed under section 5738 of this title with
the same safeguards required under section 5705 of this title.
(g) The allowances authorized by this section do not apply
to an employee transferred under the Foreign Service Act of
1980.
(h) When a transfer is made primarily for the convenience
or benefit of an employee, including an employee in the Foreign
Service of the United States, or at his request, his expenses
of travel and transportation and the expenses of transporting,
packing, crating, temporarily storing, draying, and unpacking
of household goods and personal effects may not be allowed or
paid from Government funds.
(i) An agency may pay travel and transportation expenses
(including storage of household goods and personal effects) and
other relocation allowances under this section and sections
5724a, 5724b, and 5726(c) of this title when an employee is
transferred within the continental United States only after the
employee agrees in writing to remain in the Government service
for 12 months after his transfer, unless separated for reasons
beyond his control that are acceptable to the agency concerned.
If the employee violates the agreement, the money spent by the
Government for the expenses and allowances is recoverable from
the employee as a debt due the Government.
(j) The regulations prescribed under this section shall
provide that the reassignment or transfer of any employee, for
permanent duty, from one official station or agency to another
which is outside the employee's commuting area shall take
effect only after the employee has been given advance notice
for a reasonable period. Emergency circumstances shall be taken
into account in determining whether the period of advance
notice is reasonable.
Sec. 5724a. Relocation expenses of employees transferred or reemployed
(a) Under regulations prescribed under section 5738, an
agency shall pay to or on behalf of an employee who transfers
in the interest of the Government, a per diem allowance or the
actual subsistence expenses, or a combination thereof, of the
immediate family of the employee for en route travel of the
immediate family between the employee's old and new official
stations.
(b)(1) Under regulations prescribed under section 5738, an
agency may pay to or on behalf of an employee who transfers in
the interest of the Government between official stations
located within the United States--
(A) the expenses of transportation of the employee
and the employee's spouse for travel to seek permanent
residence quarters at a new official station; and
(B) either--
(i) a per diem allowance or the actual
subsistence expenses (or a combination of
both); or
(ii) an amount for subsistence expenses,
that may not exceed a maximum amount determined
by the Administrator of General Services.
(2) Expenses may be allowed under paragraph (1) only for
one round trip in connection with each change of station of the
employee.
(c)(1) Under regulations prescribed under section 5738, an
agency may pay to or on behalf of an employee who transfers in
the interest of the Government--
(A) actual subsistence expenses of the employee and
the employee's immediate family for a period of up to
60 days while the employee or family is occupying
temporary quarters when the new official station is
located within the United States; or
(B) an amount for subsistence expenses, that may
not exceed a maximum amount determined by the
Administrator of General Services, instead of the
actual subsistence expenses authorized in subparagraph
(A) of this paragraph.
(2) The period authorized in paragraph (1) of this
subsection for payment of expenses for residence in temporary
quarters may be extended up to an additional 60 days if the
head of the agency concerned or the designee of such head of
the agency determines that there are compelling reasons for the
continued occupancy of temporary quarters.
(3) The regulations implementing paragraph (1)(A) shall
prescribe daily rates and amounts for subsistence expenses per
individual.
(d)(1) Under regulations prescribed under section 5738, an
agency shall pay to or on behalf of an employee who transfers
in the interest of the Government, expenses of the sale of the
residence (or the settlement of an unexpired lease) of the
employee at the old official station and purchase of a
residence at the new official station that are required to be
paid by the employee, when the old and new official stations
are located within the United States.
(2) Under regulations prescribed under section 5738, an
agency shall pay to or on behalf of an employee who transfers
in the interest of the Government from a post of duty located
outside the United States to an official station within the
United States (other than the official station within the
United States from which the employee was transferred when
assigned to the foreign tour of duty)--
(A) expenses required to be paid by the employee of
the sale of the residence (or the settlement of an
unexpired lease) of the employee at the old official
station from which the employee was transferred when
the employee was assigned to the post of duty located
outside the United States; and
(B) expenses required to be paid by the employee of
the purchase of a residence at the new official station
within the United States.
(3) Reimbursement of expenses under paragraph (2) of this
subsection shall not be allowed for any sale (or settlement of
an unexpired lease) or purchase transaction that occurs prior
to official notification that the employee's return to the
United States would be to an official station other than the
official station from which the employee was transferred when
assigned to the post of duty outside the United States.
(4) Reimbursement for brokerage fees on the sale of the
residence and other expenses under this subsection may not
exceed those customarily charged in the locality where the
residence is located.
(5) Reimbursement may not be made under this subsection for
losses incurred by the employee on the sale of the residence.
(6) This subsection applies regardless of whether title to
the residence or the unexpired lease is--
(A) in the name of the employee alone;
(B) in the joint names of the employee and a member
of the employee's immediate family; or
(C) in the name of a member of the employee's
immediate family alone.
(7)(A) In connection with the sale of the residence at the
old official station, reimbursement under this subsection shall
not exceed 10 percent of the sale price.
(B) In connection with the purchase of a residence at the
new official station, reimbursement under this subsection shall
not exceed 5 percent of the purchase price.
(8) Under regulations prescribed under section 5738, an
agency may pay to or on behalf of an employee who transfers in
the interest of the Government expenses of property management
services, instead of expenses under paragraph (1) or (2) of
this subsection for sale of the employee's residence, when the
agency determines that such transfer is advantageous and cost-
effective for the Government.
(e) Under regulations prescribed under section 5738, an
agency may pay to or on behalf of an employee who transfers in
the interest of the Government, the expenses of property
management services when the employee transfers to a post of
duty outside the United States. Such payment shall terminate
upon return of the employee to an official station within the
United States.
(f)(1) Under regulations prescribed under section 5738 and
subject to paragraph (2), an employee who is reimbursed under
subsections (a) through (e) of this section or section 5724(a)
of this title is entitled to an amount for miscellaneous
expenses--
(A) not to exceed two weeks' basic pay, if such
employee has an immediate family; or
(B) not to exceed one week's basic pay, if such
employee does not have an immediate family.
(2) Amounts paid under paragraph (1) may not exceed amounts
determined at the maximum rate payable for a position at GS-13
of the General Schedule.
(g) A former employee separated by reason of reduction in
force or transfer of function who within one year after the
separation is reemployed by a nontemporary appointment at a
different geographical location from that where the separation
occurred, may be allowed and paid the expenses authorized by
sections 5724, 5725, 5726(b), and 5727 of this title, and may
receive the benefits authorized by subsections (a) through (f)
of this section, in the same manner as though the employee had
been transferred in the interest of the Government without a
break in service to the location of reemployment from the
location where separated.
(h) Payments for subsistence expenses, including amounts in
lieu of per diem or actual subsistence expenses or a
combination thereof, authorized under this section may not
exceed the maximum payment allowed under regulations which
implement section 5702 of this title.
Sec. 5724b. Taxes on reimbursements for travel, transportation, and
relocation expenses of employees transferred
(a) Under regulations prescribed under section 5738 of this
title and to the extent considered necessary and appropriate,
as provided therein, appropriations or other funds available to
an agency for administrative expenses are available for the
reimbursement of substantially all of the Federal, State, and
local income taxes incurred by an employee, or by an employee
and such employee's spouse (if filing jointly), for any moving
or storage expenses furnished in kind, or for which
reimbursement or an allowance is provided (but only to the
extent of the expenses paid or incurred). Reimbursements under
this subsection shall also include an amount equal to all
income taxes for which the employee and spouse, as the case may
be, would be liable due to the reimbursement for the taxes
referred to in the first sentence of this subsection.
(b) For the purposes of this section, ``moving or storage
expenses'' means travel and transportation expenses (including
storage of household goods and personal effects under section
5724 of this title) and other relocation expenses under
sections 5724a and 5724c of this title.
Sec. 5724c. Relocation services
Under regulations prescribed under section 5738 of this
title, each agency may enter into contracts to provide
relocation services to agencies and employees for the purpose
of carrying out this subchapter. An agency may pay a fee for
such services. Such services include arranging for the purchase
of a transferred employee's residence.
Sec. 5725. Transportation expenses; employees assigned to danger areas
(a) When an employee of the Government is on duty, or is
transferred or assigned to duty, at a place designated by the
head of the agency concerned as inside a zone--
(1) from which his immediate family should be
evacuated; or
(2) to which they are not permitted to accompany
him;
because of military or other reasons which create imminent
danger to life or property, or adverse living conditions which
seriously affect the health, safety, or accommodations of the
immediate family, Government funds may be used to transport his
immediate family and household goods and personal effects,
under regulations prescribed by the head of the agency, to a
location designated by the employee. When circumstances prevent
the employee from designating a location, or it is
administratively impracticable to determine his intent, the
immediate family may designate the location. When the
designated location is inside a zone to which movement of
families is prohibited under this subsection, the employee or
his immediate family may designate an alternate location.
(b) When the employee is assigned to a duty station from
which his immediate family is not excluded by the restrictions
in subsection (a) of this section, Government funds may be used
to transport his immediate family and household goods and
personal effects from the designated or alternate location to
the duty station.
Sec. 5726. Storage expenses; household goods and personal effects
(a) For the purpose of subsection (b) of this section,
``household goods and personal effects'' means such personal
property of an employee and his dependents as authorized under
regulations prescribed under section 5738 of this title to be
transported or stored, including, in emergencies, motor
vehicles authorized to be shipped at Government expense.
(b) Under regulations prescribed under section 5738 of this
title, an employee, including a new appointee and a student
trainee to the extent authorized by sections 5722 and 5723 of
this title, assigned to a permanent duty station outside the
continental United States may be allowed storage expenses and
related transportation and other expenses for his household
goods and personal effects when--
(1) the duty station is one to which he cannot take
or at which he is unable to use his household goods and
personal effects; or
(2) the head of the agency concerned authorizes
storage of the household goods and personal effects in
the public interest or for reasons of economy.
The weight of the household goods and personal effects stored
under this subsection, together with the weight of property
transported under section 5724(a), may not exceed 18,000 pounds
net weight, excluding a motor vehicle described by subsection
(a) of this section.
(c) Under regulations prescribed under section 5738 of this
title, when an employee, including a new appointee and a
student trainee to the extent authorized by section 5723 of
this title, is assigned to a permanent duty station at an
isolated location in the continental United States to which he
cannot take or at which he is unable to use his household goods
and personal effects because of the absence of residence
quarters at the location, nontemporary storage expenses or
storage at Government expense in Government-owned facilities
(including related transportation and other expenses),
whichever is more economical, may be allowed the employee under
regulations prescribed by the head of the agency concerned. The
weight of property stored under this subsection, together with
the weight of property transported under sections 5723(a) and
5724(a) of this title, may not exceed the total maximum weight
the employee would be entitled to have moved. The period of
nontemporary storage under this subsection may not exceed 3
years.
Sec. 5727. Transportation of motor vehicles
(a) Except as specifically authorized by statute, an
authorization in a statute or regulation to transport the
effects of an employee or other individual at Government
expense is not an authorization to transport an automobile.
(b) Under regulations prescribed under section 5738 of this
title, the privately owned motor vehicle of an employee,
including a new appointee and a student trainee to the extent
authorized by sections 5722 and 5723 of this title, may be
transported at Government expense to, from, and between the
continental United States and a post of duty outside the
continental United States, or between posts of duty outside the
continental United States, when--
(1) the employee is assigned to the post of duty
for other than temporary duty; and
(2) the head of the agency concerned determines
that it is in the interest of the Government for the
employee to have the use of a motor vehicle at the post
of duty.
(c) Under regulations prescribed under section 5738 of this
title, the privately owned motor vehicle or vehicles of an
employee, including a new appointee or a student trainee for
whom travel and transportation expenses are authorized under
section 5723 of this title, may be transported at Government
expense to a new official station of the employee when the
agency determines that such transport is advantageous and cost-
effective to the Government.
(d) An employee may transport only one motor vehicle under
subsection (b) of this section during a 4-year period, except
when the head of the agency concerned determines that
replacement of the motor vehicle during the period is necessary
for reasons beyond the control of the employee and is in the
interest of the Government, and authorizes in advance the
transportation under subsection (b) of this section of one
additional privately owned motor vehicle as a replacement. When
an employee has remained in continuous service outside the
continental United States during the 4-year period after the
date of transportation under subsection (b) of this section of
his motor vehicle, the head of the agency concerned may
authorize transportation under subsection (b) of this section
of a replacement for that motor vehicle.
(e) When the head of an agency authorizes transportation
under subsection (b) or (c) of this section of a privately
owned motor vehicle, the transportation may be by--
(1) commercial means, if available at reasonable
rates and under reasonable conditions; or
(2) Government means on a space-available basis.
(f)(1) This section, except subsection (a), does not apply
to--
(A) the Foreign Service of the United States; or
(B) the Central Intelligence Agency.
(2) This section, except subsection (a), does not affect
section 403e(4) of title 50.
Sec. 5728. Travel and transportation expenses; vacation leave
(a) Under regulations prescribed under section 5738 of this
title, an agency shall pay from its appropriations the expenses
of round-trip travel of an employee, and the transportation of
his immediate family, but not household goods, from his post of
duty outside the continental United States, Alaska, and Hawaii
to the place of his actual residence at the time of appointment
or transfer to the post of duty, after he has satisfactorily
completed an agreed period of service outside the continental
United States, Alaska, and Hawaii and is returning to his
actual place of residence to take leave before serving another
tour of duty at the same or another post of duty outside the
continental United States, Alaska, and Hawaii under a new
written agreement made before departing from the post of duty.
(b) Under regulations prescribed under section 5738 of this
title, an agency shall pay from its appropriations the expenses
of round-trip travel of an employee of the Government appointed
by the President, by and with the advice and consent of the
Senate, for a term fixed by statute, and of transportation of
his immediate family, but not household goods, from his post of
duty outside the continental United States, Alaska, and Hawaii
to the place of his actual residence at the time of appointment
to the post of duty, after he has satisfactorily completed each
2 years of service outside the continental United States,
Alaska, and Hawaii and is returning to his actual place of
residence to take leave before serving at least 2 more years of
duty outside the continental United States, Alaska, and Hawaii.
(c)(1) Under regulations prescribed under section 5738 of
this title, an agency may pay, subject to paragraph (3) of this
subsection, the expenses described in paragraph (2) of this
subsection in any case in which the head of the agency
determines that the payment of such expenses is necessary for
the purpose of recruiting or retaining an employee for service
of a tour of duty at a post of duty in Alaska or Hawaii.
(2) The expenses payable under paragraph (1) of this
subsection are the expenses of round-trip travel of an
employee, and the transportation of his immediate family, but
not household goods, from his post of duty in Alaska or Hawaii
to the place of his actual residence at the time of appointment
or transfer to the post of duty, incurred after he has
satisfactorily completed an agreed period of service in Alaska
or Hawaii and in returning to his actual place of residence to
take leave before serving another tour of duty at the same or
another post of duty in Alaska or Hawaii under a new written
agreement made before departing from the post of duty.
(3) The payment of expenses of any employee and the
transportation of his family under paragraph (1) of this
subsection is limited to the expenses of travel and
transportation incurred for not more than two round trips
commenced within 5 years after the date the employee first
commences any period of consecutive tours of duty in Alaska or
Hawaii.
(d) This section does not apply to appropriations for the
Foreign Service of the United States.
Sec. 5729. Transportation expenses; prior return of family
(a) Under regulations prescribed under section 5738 of this
title, an agency shall pay from its appropriations, not more
than once before the return to the United States of an employee
whose post of duty is outside the continental United States,
the expenses of transporting his immediate family and of
shipping his household goods and personal effects from his post
of duty to his actual place of residence when--
(1) he has acquired eligibility for that
transportation; or
(2) the public interest requires the return of the
immediate family for compelling personal reasons of a
humanitarian or compassionate nature, such as may
involve physical or mental health, death of a member of
the immediate family, or obligation imposed by
authority or circumstances over which the individual
has no control.
(b) Under regulations prescribed under section 5738 of this
title, an agency shall reimburse from its appropriations an
employee whose post of duty is outside the continental United
States for the proper transportation expenses of returning his
immediate family and his household goods and personal effects
to the United States, when--
(1) their return was made at the expense of the
employee before his return and for other than reasons
of public interest; and
(2) he acquires eligibility for those
transportation expenses.
(c) This section does not apply to appropriations for the
Foreign Service of the United States.
Sec. 5730. Funds available
Funds available for travel expenses of an employee are
available for expenses of transportation of his immediate
family, and funds available for transportation of things are
available for transportation of household goods and personal
effects, as authorized by this subchapter.
Sec. 5731. Expenses limited to lowest first-class rate
(a) The allowance for actual expenses for transportation
may not exceed the lowest first-class rate by the
transportation facility used unless it is certified, in
accordance with regulations prescribed under section 5738 of
this title, that--
(1) lowest first-class accommodations are not
available; or
(2) use of a compartment or other accommodation
authorized or approved by the head of the agency
concerned or his designee is required for security
purposes.
(b) Instead of the maximum fixed by subsection (a) of this
section, the allowance to an employee of the Government for
actual expenses for transportation on an inter-island steamship
in Hawaii may not exceed the rate for accommodations on the
steamship that is equivalent as nearly as possible to the rate
for the lowest first-class accommodations on trans-pacific
steamships.
Sec. 5732. General average contribution; payment or reimbursement
Under such regulations as the President may prescribe,
appropriations chargeable for the transportation of baggage and
household goods and personal effects of employees of the
Government, volunteers as defined by section 8142(a) of this
title, and members of the uniformed services are available for
the payment or reimbursement of general average contributions
required. Appropriations are not available for the payment or
reimbursement of general average contributions--
(1) required in connection with and applicable to
quantities of baggage and household goods and personal
effects in excess of quantities authorized by statute
or regulation to be transported;
(2) when the individual concerned is allowed under
statute or regulation a commutation instead of actual
transportation expenses; or
(3) when the individual concerned selected the
means of shipment.
Sec. 5733. Expeditious travel
The travel of an employee shall be by the most expeditious
means of transportation practicable and shall be commensurate
with the nature and purpose of the duties of the employee
requiring such travel.
Sec. 5734. Travel, transportation, and relocation expenses of employees
transferred from the Postal Service
Notwithstanding the provisions of any other law, officers
and employees of the United States Postal Service promoted or
transferred under section 1006 of title 39, United States Code,
from the Postal Service to an agency (as defined in section
5721 of this title), for permanent duty may be authorized
travel, transportation, and relocation expenses and allowances
under the same conditions and to the same extent authorized by
this subchapter for other transferred employees within the
meaning of this chapter.
Sec. 5735. Travel, transportation, and relocation expenses of employees
transferring to the United States Postal Service
(a) In General.--Notwithstanding any other provision of
law, employees of the Department of Defense described in
subsection (b) may be authorized travel, transportation, and
relocation expenses and allowances in connection with
appointments referred to in such subsection under the same
conditions and to the same extent authorized by this subchapter
for transferred employees.
(b) Covered Employees.--Subsection (a) applies to any
employee of the Department of Defense who--
(1) is scheduled for separation from the
Department, other than for cause;
(2) is selected for appointment to a continuing
position with the United States Postal Service; and
(3) accepts the appointment.
Sec. 5736. Travel, transportation, and relocation expenses of certain
nonappropriated fund employees
An employee of a nonappropriated fund instrumentality of
the Department of Defense or the Coast Guard described in
section 2105(c) of this title who moves, without a break in
service of more than 3 days, to a position in the Department of
Defense or the Coast Guard, respectively, may be authorized
travel, transportation, and relocation expenses and allowances
under the same conditions and to the same extent authorized by
this subchapter for transferred employees.
Sec. 5737. Relocation expenses of an employee who is performing an
extended assignment
(a) Under regulations prescribed under section 5738 of this
title, an agency may pay to or on behalf of an employee
assigned from the employee's official station to a duty station
for a period of not less than six months and not greater than
30 months, the following expenses in lieu of payment of
expenses authorized under subchapter I of this chapter:
(1) Travel expenses to and from the assignment
location in accordance with section 5724 of this title.
(2) Transportation expenses of the immediate family
and household goods and personal effects to and from
the assignment location in accordance with section 5724
of this title.
(3) A per diem allowance for en route travel of the
employee's immediate family to and from the assignment
location in accordance with section 5724a(a) of this
title.
(4) Travel and transportation expenses of the
employee and spouse to seek new residence quarters at
the assignment location in accordance with section
5724a(b) of this title.
(5) Subsistence expenses of the employee and the
employee's immediate family while occupying temporary
quarters upon commencement and termination of the
assignment in accordance with section 5724a(c) of this
title.
(6) An amount, in accordance with section 5724a(f),
to be used by the employee for miscellaneous expenses
of this title.
(7) The expenses of transporting a privately owned
motor vehicle or vehicles to the assignment location in
accordance with section 5727 of this title.
(8) An allowance as authorized under section 5724b
of this title for Federal, State, and local income
taxes incurred on reimbursement of expenses paid under
this section or on services provided in kind under this
section.
(9) Expenses of nontemporary storage of household
goods and personal effects as defined in section
5726(a) of this title, subject to the limitation that
the weight of the household goods and personal effects
stored, together with the weight of property
transported under section 5724(a) of this title, may
not exceed the total maximum weight which could be
transported in accordance with section 5724(a) of this
title.
(10) Expenses of property management services.
(b) An agency shall not make payment under this section to
or on behalf of the employee for expenses incurred after
termination of the temporary assignment.
Sec. 5738. Regulations
(a)(1) Except as specifically provided in this subchapter,
the Administrator of General Services shall prescribe
regulations necessary for the administration of this
subchapter.
(2) The Administrator of General Services shall include in
the regulations authority for the head of an agency or his
designee to waive any limitation of this subchapter or in any
implementing regulation for any employee relocating to or from
a remote or isolated location who would suffer hardship if the
limitation were not waived. A waiver of a limitation under
authority provided in the regulations pursuant to this
paragraph shall be effective notwithstanding any other
provision of this subchapter.
(b) In prescribing regulations for the implementation of
section 5724b of this title, the Administrator of General
Services shall consult with the Secretary of the Treasury.
(c) The Secretary of Defense shall prescribe regulations
necessary for the implementation of section 5735 of this title.
Sec. 5739. Authority for relocation expenses test programs
(a)(1) Notwithstanding any other provision of this
subchapter, under a test program which the Administrator of
General Services determines to be in the interest of the
Government and approves, an agency may pay through the proper
disbursing official for a period not to exceed 24 months any
necessary relocation expenses in lieu of any payment otherwise
authorized or required under this subchapter. An agency shall
include in any request to the Administrator for approval of
such a test program an analysis of the expected costs and
benefits and a set of criteria for evaluating the effectiveness
of the program.
(2) Any test program conducted under this section shall be
designed to enhance cost savings or other efficiencies that
accrue to the Government.
(3) Nothing in this section is intended to limit the
authority of any agency to conduct test programs.
(b) The Administrator shall transmit a copy of any test
program approved by the Administrator under this section to the
appropriate committees of the Congress at least 30 days before
the effective date of the program.
(c) An agency authorized to conduct a test program under
subsection (a) shall provide to the Administrator and the
appropriate committees of the Congress a report on the results
of the program no later than 3 months after completion of the
program.
(d) No more than 10 test programs under this section may be
conducted simultaneously.
(e) The authority to conduct test programs under this
section shall expire 7 years after the date of the enactment of
the Travel and Transportation Reform Act of 1998.
SUBCHAPTER III--TRANSPORTATION OF REMAINS, DEPENDENTS, AND EFFECTS
Sec. 5741. General prohibition
Except as specifically authorized by statute, the head of
an Executive department or military department may not
authorize an expenditure in connection with the transportation
of remains of a deceased employee.
Sec. 5742. Transportation of remains, dependents, and effects; death
occurring away from official station or abroad
(a) For the purpose of this section, ``agency'' means--
(1) an Executive agency;
(2) a military department;
(3) an agency in the legislative branch; and
(4) an agency in the judicial branch.
(b) When an employee dies, the head of the agency
concerned, under regulations prescribed by the President and,
except as otherwise provided by law, may pay from
appropriations available for the activity in which the employee
was engaged--
(1) the expense of preparing and transporting the
remains to the home or official station of the
employee, or such other place appropriate for interment
as is determined by the head of the agency concerned,
if death occurred while the employee was in a travel
status away from his official station in the United
States or while performing official duties outside the
continental United States or in transit thereto or
therefrom;
(2) the expense of transporting his dependents,
including expenses of packing, crating, draying, and
transporting household effects and other personal
property to his former home or such other place as is
determined by the head of the agency concerned, if
death occurred while the employee was performing
official duties outside the continental United States
or in transit thereto or therefrom; and
(3) the travel expenses of not more than 2 persons
to escort the remains of a deceased employee, if death
occurred while the employee was in travel status away
from his official station in the United States or while
performing official duties outside the United States or
in transit thereto or therefrom, from the place of
death to the home or official station of such person,
or such other place appropriate for interment as is
determined by the head of the agency concerned.
(c) When a dependent of an employee dies while residing
with the employee performing official duties outside the
continental United States or in Alaska or in transit thereto or
therefrom, the head of the agency concerned may pay the
necessary expenses of transporting the remains to the home of
the dependent, or such other place appropriate for interment as
is determined by the head of the agency concerned. If
practicable, the agency concerned in respect of the deceased
may furnish mortuary services and supplies on a reimbursable
basis when--
(1) local commercial mortuary facilities and
supplies are not available; or
(2) the cost of available mortuary facilities and
supplies are prohibitive in the opinion of the head of
the agency.
Reimbursement for the cost of mortuary services and supplies
furnished under this subsection shall be collected and credited
to current appropriations available for the payment of these
costs.
(d) The benefits of this section may not be denied because
the deceased was temporarily absent from duty when death
occurred.
(e) Employees covered by this section include an employee
who has been reassigned away from the employee's home of record
pursuant to a mandatory mobility agreement executed as a
condition of employment.
SUBCHAPTER IV--MISCELLANEOUS PROVISIONS
Sec. 5751. Travel expenses of witnesses
(a) Under such regulations as the Attorney General may
prescribe, an employee as defined by section 2105 of this title
(except an individual whose pay is disbursed by the Secretary
of the Senate or the Chief Administrative Officer of the House
of Representatives) summoned, or assigned by his agency, to
testify or produce official records on behalf of the United
States is entitled to travel expenses under subchapter I of
this chapter. If the case involves the activity in connection
with which he is employed, the travel expenses are paid from
the appropriation otherwise available for travel expenses of
the employee under proper certification by a certifying
official of the agency concerned. If the case does not involve
its activity, the employing agency may advance or pay the
travel expenses of the employee, and later obtain reimbursement
from the agency properly chargeable with the travel expenses.
(b) An employee as defined by section 2105 of this title
(except an individual whose pay is disbursed by the Secretary
of the Senate or the Chief Administrative Officer of the House
of Representatives) summoned, or assigned by his agency, to
testify in his official capacity or produce official records,
on behalf of a party other than the United States, is entitled
to travel expenses under subchapter I of this chapter, except
to the extent that travel expenses are paid to the employee for
his appearance by the court, authority, or party which caused
him to be summoned.
Sec. 5752. Travel expenses of Senior Executive Service candidates
Employing agencies may pay candidates for Senior Executive
Service positions travel expenses incurred incident to
preemployment interviews requested by the employing agency.
Sec. 5753. Recruitment and relocation bonuses
(a) The Office of Personnel Management may authorize the
head of an agency to pay a bonus to an employee who is newly
appointed to a position under the General Schedule, or to an
employee under the General Schedule or under any other pay
authority in the executive, legislative, or judicial branch who
must relocate to accept a position under the General Schedule,
if the Office determines that the agency would be likely, in
the absence of such a bonus, to encounter difficulty in filling
the position.
(b)(1)(A) The amount of a bonus under this section shall be
determined by regulations of the Office, but may not exceed 25
percent of the annual rate of basic pay of the position to
which the employee is being appointed or relocated.
(B) For purposes of computing a percentage of a rate of
basic pay under subparagraph (A), the rate of basic pay used
shall be determined without taking into account any
comparability payment under section 5304.
(2) Payment of a bonus under this section shall be
contingent upon the employee entering into an agreement with
the agency to complete a period of employment with the agency,
with the required period determined pursuant to regulations of
the Office. If the employee voluntarily fails to complete such
period of service or is separated from the service before
completion of such period of service for cause on charges of
misconduct or delinquency, the employee shall repay the bonus
on a pro rata basis.
(3) A bonus under this section shall be paid as a lump sum,
and may not be considered to be part of the basic pay of an
employee.
(4) Under regulations of the Office, a recruitment bonus
may be paid to a newly-hired employee before the employee
enters on duty.
(c) For the purposes of this section--
(1) the terms ``agency'' and ``employee'' have the
meanings given them by section 5102; and
(2) any reference to ``a position under the General
Schedule'' or ``an employee under the General
Schedule'' shall be considered to be a reference to any
position or employee to which subchapter III of chapter
53 applies.
(d) The Office shall prescribe such regulations as it
considers necessary for the administration of subsections (a)
through (c).
(e) At the request of the head of an Executive agency, the
President may authorize the application of the preceding
provisions of this section with respect to 1 or more categories
of employees within such agency who would not otherwise be
covered by this section (including authority under subsection
(d) to prescribe any necessary regulations).
Sec. 5754. Retention allowances
(a) The Office of Personnel Management may authorize the
head of an agency to pay an allowance to an employee under the
General Schedule if--
(1) the unusually high or unique qualifications of
the employee or a special need of the agency for the
employee's services makes it essential to retain the
employee; and
(2) the agency determines that the employee would
be likely to leave in the absence of a retention
allowance.
(b)(1) A retention allowance, which shall be stated as a
percentage of the rate of basic pay (excluding any
comparability payments under section 5304) of the employee, may
not exceed 25 percent of such rate of basic pay.
(2) A retention allowance may not be considered to be part
of the basic pay of an employee, and the reduction or
elimination of a retention allowance may not be appealed. The
preceding sentence shall not be construed to extinguish or
lessen any right or remedy under subchapter II of chapter 12 or
under any of the laws referred to in section 2302(d).
(3) A retention allowance shall be paid at the same time
and in the same manner as the employee's basic pay is paid.
(c) For the purpose of this section--
(1) the terms ``agency'' and ``employee'' have the
meanings given them by section 5102; and
(2) any reference to ``an employee under the
General Schedule'' shall be considered to be a
reference to any employee holding a position to which
subchapter III of chapter 53 applies.
(d) The Office shall prescribe such regulations as it
considers necessary for the administration of subsections (a)
through (c).
(e) At the request of the head of an Executive agency, the
President may authorize the application of the preceding
provisions of this section with respect to 1 or more categories
of employees within such agency who would not otherwise be
covered by this section (including authority under subsection
(d) to prescribe any necessary regulations).
Sec. 5755. Supervisory differentials
(a)(1) The Office of Personnel Management may authorize the
head of an agency to pay a differential to an employee under
the General Schedule who has supervisory responsibility for 1
or more employees not under the General Schedule, if 1 or more
of the subordinate employees would, in the absence of such a
differential, be paid more than the supervisory employee.
(2) For the purposes of comparing the pay of a supervisory
employee under the General Schedule with the pay of a
subordinate employee not under the General Schedule,
comparability payments under section 5304, differentials, and
allowances that are not a part of basic pay may be taken into
consideration, as provided by regulations of the Office.
(b)(1) A supervisory differential, which shall be stated as
a percentage of the supervisory employee's rate of basic pay
(excluding any comparability payments under section 5304) or as
a dollar amount, may not cause the supervisory employee's pay
to exceed the pay of the highest paid subordinate employee by
more than 3 percent.
(2) A supervisory differential may not be considered to be
part of the basic pay of an employee, and the reduction or
elimination of a supervisory differential may not be appealed.
The preceding sentence shall not be construed to extinguish or
lessen any right or remedy under subchapter II of chapter 12 or
under any of the laws referred to in section 2302(d).
(3) A supervisory differential shall be paid in the same
manner and at the same time as the employee's basic pay is
paid.
(c) For the purpose of this section--
(1) the terms ``agency'' and ``employee'' have the
meanings given them by section 5102; and
(2) any reference to ``an employee under the
General Schedule'' shall be considered to be a
reference to any employee holding a position to which
subchapter III of chapter 53 applies.
(d) The Office shall prescribe such regulations as it
considers necessary for the administration of this section.
Sec. 5756. Home marketing incentive payment
(a) Under regulations prescribed under subsection (b), an
agency may pay to an employee who transfers in the interest of
the Government an amount to encourage the employee to
aggressively market the employee's residence at the official
station from which transferred when--
(1) the residence is entered into a relocation
services program established under a contract in
accordance with section 5724c of this title to arrange
for the purchase of the residence;
(2) the employee finds a buyer who completes the
purchase of the residence through the program; and
(3) the sale of the residence results in a reduced
cost to the Government.
(b)(1) The Administrator of General Services shall
prescribe regulations to carry out this section.
(2) The regulations shall include a limitation on the
maximum amount payable with respect to an employee's residence.
The Administrator shall establish the limitation in
consultation with the Director of the Office of Management and
Budget. For fiscal years 1997 and 1998, the maximum amount
shall be the amount equal to five percent of the sale price of
the residence.
CHAPTER 59--ALLOWANCES
SUBCHAPTER I--UNIFORMS
Sec.
5901. Uniform allowances.
5902. Increase in maximum uniform allowance.
5903. Regulations.
SUBCHAPTER II--QUARTERS
5911. Quarters and facilities; employees in the United States.
5912. Quarters in Government owned or rented buildings; employees in
foreign countries.
5913. Official residence expenses.
SUBCHAPTER III--OVERSEAS DIFFERENTIALS AND ALLOWANCES
5921. Definitions.
5922. General provisions.
5923. Quarters allowances.
5924. Cost-of-living allowances.
5925. Post differentials.
5926. Compensatory time off at certain posts in foreign areas.
5927. Advances of pay.
5928. Danger pay allowance.
SUBCHAPTER IV--MISCELLANEOUS ALLOWANCES
5941. Allowances based on living costs and conditions of environment;
employees stationed outside continental United States or in
Alaska.
5942. Allowance based on duty at remote worksites.
5942a. Separate maintenance allowance for duty at Johnston Island.
5943. Foreign currency appreciation allowances.
[5944. Repealed.]
5945. Notary public commission expenses.
5946. Membership fees; expenses of attendance at meetings;
limitations.
5947. Quarters, subsistence, and allowances for employees of the
Corps of Engineers, Department of the Army, engaged in
floating plant operations.
5948. Physicians comparability allowances.
SUBCHAPTER I--UNIFORMS
Sec. 5901. Uniform allowances
(a) There is authorized to be appropriated annually to each
agency of the Government of the United States, including a
Government owned corporation, and of the government of the
District of Columbia, on a showing of necessity or
desirability, such sums as may be necessary to carry out this
subchapter. The head of the agency concerned, out of funds made
available by the appropriation, shall--
(1) furnish to each of these employees a uniform at
a cost not to exceed $400 a year (or such higher
maximum amount as the Office of Personnel Management
may establish under section 5902); or
(2) pay to each of these employees an allowance for
a uniform not to exceed $400 a year (or such higher
maximum amount as the Office of Personnel Management
may establish under section 5902).
The allowance may be paid only at the times and in the amounts
authorized by the regulations prescribed under section 5903 of
this title. When the agency pays direct to the uniform vendor,
the head of the agency may deduct a service charge of not more
than 4 percent.
(b) When the furnishing of a uniform or the payment of a
uniform allowance is authorized under another statute or
regulation existing on September 1, 1954, the head of the
agency concerned may continue the furnishing of the uniform or
the payment of the uniform allowance under that statute or
regulation, but in that event a uniform may not be furnished or
allowance paid under this section.
(c) An allowance paid under this section is not wages
within the meaning of section 409 of title 42 or chapters 21
and 24 of title 26.
Sec. 5902. Increase in maximum uniform allowance
The Office of Personnel Management may, from time to time,
by regulation adjust the maximum amount for the cost of
uniforms and the maximum allowance for uniforms under section
5901.
Sec. 5903. Regulations
The Office of Personnel Management may prescribe such
regulations as it considers necessary for the administration of
this subchapter.
SUBCHAPTER II--QUARTERS
Sec. 5911. Quarters and facilities; employees in the United States
(a) For the purpose of this section--
(1) ``Government'' means the Government of the
United States;
(2) ``agency'' means an Executive agency, but does
not include the Tennessee Valley Authority;
(3) ``employee'' means an employee of an agency;
(4) ``United States'' means the several States, the
District of Columbia, and the territories and
possessions of the United States including the
Commonwealth of Puerto Rico;
(5) ``quarters'' means quarters owned or leased by
the Government; and
(6) ``facilities'' means household furniture and
equipment, garage space, utilities, subsistence, and
laundry service.
(b) The head of an agency may provide, directly or by
contract, an employee stationed in the United States with
quarters and facilities, when conditions of employment or of
availability of quarters warrant the action.
(c) Rental rates for quarters provided for an employee
under subsection (b) of this section or occupied on a rental
basis by an employee or member of a uniformed service under any
other provision of statute, and charges for facilities made
available in connection with the occupancy of the quarters,
shall be based on the reasonable value of the quarters and
facilities to the employee or member concerned, in the
circumstances under which the quarters and facilities are
provided, occupied, or made available. The amounts of the rates
and charges shall be paid by, or deducted from the pay of, the
employee or member of a uniformed service, or otherwise charged
against him in accordance with law. The amounts of payroll
deductions for the rates and charges shall remain in the
applicable appropriation or fund. When payment of the rates and
charges is made by other than payroll deductions, the amounts
of payment shall be credited to the Government as provided by
law.
(d) When, as an incidental service in support of a program
of the Government, quarters and facilities are provided by
appropriate authority of the Government to an individual other
than an employee or member of a uniformed service, the rates
and charges therefor shall be determined in accordance with
this section. The amounts of payment of the rates and charges
shall be credited to the Government as provided by law.
(e) The head of an agency may not require an employee or
member of a uniformed service to occupy quarters on a rental
basis, unless the agency head determines that necessary service
cannot be rendered, or that property of the Government cannot
adequately be protected, otherwise.
(f) The President may prescribe regulations governing the
provision, occupancy, and availability of quarters and
facilities, the determination of rates and charges therefor,
and other related matters, necessary and appropriate to carry
out this section. The head of each agency may prescribe
regulations, not inconsistent with the regulations of the
President, necessary and appropriate to carry out the functions
of the agency head under this section.
(g) Subsection (c) of this section does not repeal or
modify any provision of statute authorizing the provision of
quarters or facilities, either without charge or at rates or
charges specifically fixed by statute.
(h) A member of the uniformed service on a permanent change
of duty station or temporary duty orders and occupying
unaccompanied personnel housing--
(1) is exempt from the requirement of subsection
(c) to pay a rental rate or charge based on the
reasonable value of the quarters and facilities
provided; and
(2) shall pay such lesser rate or charge as the
Secretary of Defense establishes by regulation.
Sec. 5912. Quarters in Government owned or rented buildings; employees
in foreign countries
Under regulations prescribed by the head of the agency
concerned and approved by the President, an employee who is a
citizen of the United States permanently stationed in a foreign
country may be furnished, without cost to him, living quarters,
including heat, fuel, and light, in a Government owned or
rented building. The rented quarters may be furnished only
within the limits of appropriations made therefor.
Sec. 5913. Official residence expenses
(a) For the purpose of this section, ``agency'' has the
meaning given it by section 5721 of this title.
(b) Under such regulations as the President may prescribe,
funds available to an agency for administrative expenses may be
allotted to posts in foreign countries to defray the unusual
expenses incident to the operation and maintenance of official
residences suitable for--
(1) the chief representatives of the United States
at the posts; and
(2) such other senior officials of the Government
of the United States as the President may designate.
SUBCHAPTER III--OVERSEAS DIFFERENTIALS AND ALLOWANCES
Sec. 5921. Definitions
For the purpose of this subchapter--
(1) ``Government'' means the Government of the
United States;
(2) ``agency'' means an Executive agency and the
Library of Congress, but does not include a Government
controlled corporation;
(3) ``employee'' means an employee in or under an
agency and more specifically defined by regulations
prescribed by the President;
(4) ``United States'', when used in a geographical
sense, means the several States and the District of
Columbia;
(5) ``continental United States'' means the several
States and the District of Columbia, but does not
include Alaska or Hawaii; and
(6) ``foreign area'' means--
(A) the Trust Territory of the Pacific
Islands; and
(B) any other area outside the United
States, the Commonwealth of Puerto Rico, the
Canal Zone, and territories and possessions of
the United States.
Sec. 5922. General provisions
(a) Notwithstanding section 5536 of this title and except
as otherwise provided by this subchapter, the allowances and
differentials authorized by this subchapter may be granted to
an employee officially stationed in a foreign area--
(1) who is a citizen of the United States; and
(2) whose rate of basic pay is fixed by statute or,
without taking into consideration the allowances and
differentials provided by this subchapter, is fixed by
administrative action pursuant to law or is fixed
administratively in conformity with rates paid by the
Government for work of a comparable level of difficulty
and responsibility in the continental United States.
To the extent authorized by a provision of statute other than
this subchapter, the allowances and differentials provided by
this subchapter may be paid to an employee officially stationed
in a foreign area who is not a citizen of the United States.
(b) Allowances granted under this subchapter may be paid in
advance, or advance of funds may be made therefor, through the
proper disbursing official in such sums as are considered
advisable in consideration of the need and the period of time
during which expenditures must be made in advance by the
employee. An advance of funds not subsequently covered by
allowances accrued to the employee under this subchapter is
recoverable by the Government by--
(1) setoff against accrued pay, compensation,
amount of retirement credit, or other amount due the
employee from the Government; and
(2) such other method as is provided by law for the
recovery of amounts owing to the Government.
The head of the agency concerned, under regulations of the
President, may waive in whole or in part a right of recovery
under this subsection, if it is shown that the recovery would
be against equity and good conscience or against the public
interest.
(c) The allowances and differentials authorized by this
subchapter shall be paid under regulations prescribed by the
President governing--
(1) payments of the allowances and differentials
and the respective rates at which the payments are
made;
(2) the foreign areas, the groups of positions, and
the categories of employees to which the rates apply;
and
(3) other related matters.
(d) When a quarters allowance or allowance related to
education under this subchapter, or quarters furnished in
Government-owned or controlled buildings under section 5912,
would be furnished to an employee but for the death of the
employee, such allowances or quarters may be furnished or
continued for the purpose of allowing any child of the employee
to complete the current school year at post or away from post
notwithstanding the employee's death.
(e) When an allowance related to education away from post
under this subchapter would be authorized with respect to an
employee but for the evacuation or authorized departure status
of the post, such an allowance may be furnished or continued
for the purpose of allowing any dependent children of such
employee to complete the current school year.
(f)(1) If an employee dies at post in a foreign area, a
transfer allowance under section 5924(2)(B) may be granted to
the spouse or dependents of such employee (or both) for the
purpose of providing for their return to the United States.
(2) A transfer allowance under this subsection may not be
granted with respect to the spouse or a dependent of the
employee unless, at the time of death, such spouse or dependent
was residing--
(A) at the employee's post of assignment; or
(B) at a place, outside the United States, for
which a separate maintenance allowance was being
furnished under section 5924(3).
(3) The President may prescribe any regulations necessary
to carry out this subsection.
Sec. 5923. Quarters allowances
(a) When Government owned or rented quarters are not
provided without charge for an employee in a foreign area, one
or more of the following quarters allowances may be granted
when applicable:
(1) A temporary subsistence allowance for the
reasonable cost of temporary quarters (including meals
and laundry expenses) incurred by the employee and his
family--
(A) for a period not in excess of 90 days
after first arrival at a new post of assignment
in a foreign area or a period ending with the
occupation of residence quarters, whichever is
shorter; and
(B) for a period of not more than 30 days
immediately before final departure from the
post after the necessary evacuation of
residence quarters.
(2) A living quarters allowance for rent, heat,
light, fuel, gas, electricity, and water, without
regard to section 3324(a) and (b) of title 31.
(3) Under unusual circumstances, payment or
reimbursement for extraordinary, necessary, and
reasonable expenses, not otherwise compensated for,
incurred in initial repairs, alterations, and
improvements to the privately leased residence of an
employee at a post of assignment in a foreign area,
if--
(A) the expenses are administratively
approved in advance; and
(B) the duration and terms of the lease
justify payment of the expenses by the
Government.
(b) The 90-day period under subsection (a)(1)(A) and the
30-day period under subsection (a)(1)(B) may each be extended
for not more than 60 additional days if the head of the agency
concerned or his designee determines that there are compelling
reasons beyond the control of the employee for the continued
occupancy of temporary quarters.
Sec. 5924. Cost-of-living allowances
The following cost-of-living allowances may be granted,
when applicable, to an employee in a foreign area:
(1) A post allowance to offset the difference
between the cost of living at the post of assignment of
the employee in a foreign area and the cost of living
in the District of Columbia, except that employees
receiving the temporary subsistence allowance under
section 5923(1) are ineligible for a post allowance
under this paragraph.
(2) A transfer allowance for extraordinary,
necessary, and reasonable subsistence and other
relocation expenses (including unavoidable lease
penalties), not otherwise compensated for, incurred by
an employee incident to establishing himself at a post
of assignment in--
(A) a foreign area (including costs
incurred in the United States, its territories
or possessions, the Commonwealth of Puerto
Rico, the Commonwealth of the Northern Mariana
Islands, or the areas and installations in the
Republic of Panama made available to the United
States pursuant to the Panama Canal Treaty of
1977 and related agreements prior to departure
for a post of assignment in a foreign area); or
(B) the United States after the employee
agrees in writing to remain in Government
service for 12 months after transfer, unless
separated for reasons beyond the control of the
employee that are acceptable to the agency
concerned.
(3) A separate maintenance allowance to assist an
employee who is compelled or authorized, because of
dangerous, notably unhealthful, or excessively adverse
living conditions at the employee's post of assignment
in a foreign area, or for the convenience of the
Government, or who requests such an allowance because
of special needs or hardship involving the employee or
the employee's spouse or dependents, to meet the
additional expenses of maintaining, elsewhere than at
the post, the employee's spouse or dependents, or both.
(4) An education allowance or payment of travel
costs to assist an employee with the extraordinary and
necessary expenses, not otherwise compensated for,
incurred because of his service in a foreign area or
foreign areas in providing adequate education for his
dependents (or, to the extent education away from post
is involved, official assignment to service in such
area or areas), as follows:
(A) An allowance not to exceed the cost of
obtaining such kindergarten, elementary and
secondary educational services as are
ordinarily provided without charge by the
public schools in the United States (including
such educational services as are provided by
the States under the Individuals with
Disabilities Education Act), plus, in those
cases when adequate schools are not available
at the post of the employee, board and room,
and periodic transportation between that post
and the school chosen by the employee, not to
exceed the total cost to the Government of the
dependent attending an adequate school in the
nearest locality where an adequate school is
available, without regard to section 3324(a)
and (b) of title 31. When travel from school to
post is infeasible, travel may be allowed
between the school attended and the home of a
designated relative or family friend or to join
a parent at any location, with the allowable
travel expense not to exceed the cost of travel
between the school and the post. The amount of
the allowance granted shall be determined on
the basis of the educational facility used.
(B) The travel expenses of dependents of an
employee to and from a school in the United
States (or to and from a school outside the
United States if the dependent is attending
that school for less than one year under a
program approved by the school in the United
States at which the dependent is enrolled, with
the allowable travel expense not to exceed the
cost of travel to and from the school in the
United States) to obtain an American secondary
or postsecondary educational institution
education (other than a program of post-
baccalaureate education), not to exceed one
annual trip each way for each dependent. An
allowance payment under subparagraph (A) of
this paragraph (4) may not be made for a
dependent during the 12 months following his
arrival in the United States for secondary
education under authority contained in this
subparagraph (B). Notwithstanding section
5921(6) of this title, travel expenses, for the
purpose of obtaining postsecondary educational
institution education (other than a program of
post-baccalaureate education), may be
authorized under this subparagraph (B), under
such regulations as the President may
prescribe, for dependents of employees who are
citizens of the United States stationed in the
Canal Zone. For the purposes of this
subparagraph, the term ``educational
institution'' has the meaning defined under
section 1701(a)(6) of title 38.
(C) In those cases in which an adequate
school is available at the post of the
employee, if the employee chooses to educate
the dependent at a school away from post, the
education allowance which includes board and
room, and periodic travel between the post and
the school chosen, shall not exceed the total
cost to the Government of the dependent
attending an adequate school at the post of the
employee.
Sec. 5925. Post differentials
(a) A post differential may be granted on the basis of
conditions of environment which differ substantially from
conditions of environment in the continental United States and
warrant additional pay as a recruitment and retention
incentive. A post differential may be granted to an employee
officially stationed in the United States who is on extended
detail in a foreign area. A post differential under this
subsection may not exceed 25 percent of the rate of basic pay.
(b) Any employee granted a differential under subsection
(a) of this section may be granted an additional differential
for an assignment to a post determined to have especially
adverse conditions of environment which warrant additional pay
as a recruitment and retention incentive for the filling of
positions at that post. An additional differential for any
employee under this subsection--
(1) may be paid for each assignment to a post
determined to have such conditions;
(2) may be paid periodically or in a lump sum; and
(3) may not exceed 15 percent of the rate of basic
pay of that employee for the period served under that
assignment.
Sec. 5926. Compensatory time off at certain posts in foreign areas
(a) Under regulations prescribed pursuant to this
subchapter, and notwithstanding subchapter V of chapter 55 of
this title or any other law, the head of an agency may, on
request of an employee serving in a foreign area--
(1) at an isolated post performing functions
required to be maintained on a substantially continuous
basis, grant the employee compensatory time off for an
equal amount of time spent in regularly scheduled
overtime work; or
(2) at a post in a locality that customarily
observes irregular hours of work or where other special
conditions are present, in order to cope with those
special circumstances, grant the employee compensatory
time off for an equal amount of time spent in regularly
scheduled overtime work for use during the pay period
in which it is earned.
Credit for compensatory time off earned under paragraph (2)
shall not form the basis for any additional compensation.
(b) Compensatory time earned under this section shall be
for use only while the employee is assigned to the post where
it is earned. Any such compensatory time not used at the time
the employee is reassigned to another post shall be forfeited.
Sec. 5927. Advances of pay
(a) Up to three months' pay may be paid in advance--
(1) to an employee upon the assignment of the
employee to a post in a foreign area;
(2) to an employee, other than an employee
appointed under section 303 of the Foreign Service Act
of 1980 (and employed under section 311 of such Act),
who--
(A) is a citizen of the United States;
(B) is officially stationed or located
outside the United States pursuant to
Government authorization; and
(C) requires (or has a family member who
requires) medical treatment outside the United
States, in circumstances specified by the
President in regulations; and
(3) to a foreign national employee appointed under
section 303 of the Foreign Service Act of 1980, or a
nonfamily member United States citizen appointed under
such section 303 (and employed under section 311 of
such Act) for service at such nonfamily member's post
of residence, who--
(A) is located outside the country of
employment of such foreign national employee or
nonfamily member (as the case may be) pursuant
to Government authorization; and
(B) requires medical treatment outside the
country of employment of such foreign national
employee or nonfamily member (as the case may
be), in circumstances specified by the
President in regulations.
(b) For the purpose of this section, the term ``country of
employment'', as used with respect to an individual under
subsection (a)(3), means the country (or other area) outside
the United States where such individual is appointed (as
described in subsection (a)(3)) by the Government.
Sec. 5928. Danger pay allowance
An employee serving in a foreign area may be granted a
danger pay allowance on the basis of civil insurrection, civil
war, terrorism, or wartime conditions which threaten physical
harm or imminent danger to the health or well-being of the
employee. A danger pay allowance may not exceed 25 percent of
the basic pay of the employee, except that if an employee is
granted an additional differential under section 5925(b) of
this title with respect to an assignment, the sum of that
additional differential and any danger pay allowance granted to
the employee with respect to that assignment may not exceed 25
percent of the basic pay of the employee.
The presence of nonessential personnel or dependents shall not
preclude payment of an allowance under this section. In each
instance where an allowance under this section is initiated or
terminated, the Secretary of State shall inform the Speaker of
the House of Representatives and the Committee on Foreign
Relations of the Senate of the action taken and the
circumstances justifying it.
SUBCHAPTER IV--MISCELLANEOUS ALLOWANCES
Sec. 5941. Allowances based on living costs and conditions of
environment; employees stationed outside
continental United States or in Alaska
(a) Appropriations or funds available to an Executive
agency, except a Government controlled corporation, for pay of
employees stationed outside the continental United States or in
Alaska whose rates of basic pay are fixed by statute, are
available for allowances to these employees. The allowance is
based on--
(1) living costs substantially higher than in the
District of Columbia;
(2) conditions of environment which differ
substantially from conditions of environment in the
continental United States and warrant an allowance as a
recruitment incentive; or
(3) both of these factors.
The allowance may not exceed 25 percent of the rate of basic
pay. Except as otherwise specifically authorized by statute,
the allowance is paid only in accordance with regulations
prescribed by the President establishing the rates and defining
the area, groups of positions, and classes of employees to
which each rate applies.
(b) An employee entitled to a cost-of-living allowance
under section 5924 of this title may not be paid an allowance
under subsection (a) of this section based on living costs
substantially higher than in the District of Columbia.
Sec. 5942. Allowance based on duty at remote worksites
(a) Notwithstanding section 5536 of this title, an employee
of an Executive department or an independent establishment who
is assigned to duty, except temporary duty, at a site so remote
from the nearest established communities or suitable places of
residence as to require an appreciable degree of expense,
hardship, and inconvenience, beyond that normally encountered
in metropolitan commuting, on the part of the employee in
commuting to and from his residence and such worksite, is
entitled, in addition to pay otherwise due him, to an allowance
of not to exceed $10 a day. The allowance shall be paid under
regulations prescribed by the President establishing the rates
at which the allowance will be paid and defining and
designating those sites, areas, and groups of positions to
which the rates apply.
(b) Under procedures prescribed by the President, the
maximum allowance specified in subsection (a) may be adjusted
from time to time in the interest of recruiting and retaining
employees for performance of duty at remote worksites.
Sec. 5942a. Separate maintenance allowance for duty at Johnston Island
(a) Notwithstanding section 5536 of this title, and under
regulations prescribed by the President, an employee of an
Executive agency (other than a Government corporation) who is
assigned to a post of duty at Johnston Island, a possession of
the United States in the Pacific Ocean, is entitled to receive
a separate maintenance allowance if the head of the employing
agency finds that--
(1) it is necessary for the employee to maintain
the employee's spouse or dependents, or both, at a
location other than Johnston Island--
(A) by reason of dangerous or adverse
living conditions at Johnston Island; or
(B) for the convenience of the Federal
Government; and
(2) the allowance is needed to help the employee
meet the additional expenses involved in maintaining
the employee's spouse or dependents, or both, at such
other location rather than at the post.
(b) The regulations prescribed by the President shall
include provisions for determining the rate at which an
allowance under this section shall be paid.
Sec. 5943. Foreign currency appreciation allowances
(a) The President, under such regulations as he may
prescribe, may meet losses sustained by employees and members
of the uniformed services while serving in a foreign country
due to the appreciation of foreign currency in its relation to
the American dollar. Allowances and expenditures under this
section are not subject to income taxes.
(b) Annual appropriations are authorized to carry out
subsection (a) of this section and to cover any deficiency in
the accounts of the Secretary of the Treasury, including
interest, arising out of the arrangement approved by the
President on July 27, 1933, for the conversion into foreign
currency of checks and drafts of employees and members of the
uniformed services for pay and expenses.
(c) Payment under subsection (a) of this section may not be
made to an employee or member of a uniformed service for a
period during which his check or draft was converted into
foreign currency under the arrangement referred to by
subsection (b) of this section.
(d) The President shall report annually to Congress all
expenditures made under this section.
Sec. 5944. [Repealed. Pub. L. 98-164, title I, Sec. 127(b)(1), Nov. 22,
1983, 97 Stat. 1027.]
Sec. 5945. Notary public commission expenses
An employee as defined by section 2105 of this title or an
individual employed by the government of the District of
Columbia who is required to serve as a notary public in
connection with the performance of official business is
entitled to an allowance, established by the agency concerned,
not in excess of the expense required to obtain the commission.
Funds available to an agency concerned for personal services or
general administrative expenses are available to carry out this
section.
Sec. 5946. Membership fees; expenses of attendance at meetings;
limitations
Except as authorized by a specific appropriation, by
express terms in a general appropriation, or by sections 4109
and 4110 of this title, appropriated funds may not be used for
payment of--
(1) membership fees or dues of an employee as
defined by section 2105 of this title or an individual
employed by the government of the District of Columbia
in a society or association; or
(2) expenses of attendance of an individual at
meetings or conventions of members of a society or
association.
This section does not prevent the use of appropriations for the
Department of Agriculture for expenses incident to the delivery
of lectures, the giving of instructions, or the acquiring of
information at meetings by its employees on subjects relating
to the authorized work of the Department.
Sec. 5947. Quarters, subsistence, and allowances for employees of the
Corps of Engineers, Department of the Army, engaged
in floating plant operations
(a) An employee of the Corps of Engineers, Department of
the Army, engaged in floating plant operations may be furnished
quarters or subsistence, or both, on vessels, without charge,
when the furnishing of the quarters or subsistence, or both, is
determined to be equitable to the employee concerned, and
necessary in the public interest, in connection with such
operations.
(b) Notwithstanding section 5536 of this title, an employee
entitled to the benefits of subsection (a) of this section
while on a vessel, may be paid, in place of these benefits, an
allowance for quarters or subsistence, or both, when--
(1) adverse weather conditions or similar
circumstances beyond the control of the employee or the
Corps of Engineers prevent transportation of the
employee from shore to the vessel; or
(2) quarters or subsistence, or both, are not
available on the vessel while it is undergoing repairs.
(c) The quarters or subsistence, or both, or allowance in
place thereof, may be furnished or paid only under regulations
prescribed by the Secretary of the Army.
Sec. 5948. Physicians comparability allowances
(a) Notwithstanding any other provision of law, and in
order to recruit and retain highly qualified Government
physicians, the head of an agency, subject to the provisions of
this section, section 5307, and such regulations as the
President or his designee may prescribe, may enter into a
service agreement with a Government physician which provides
for such physician to complete a specified period of service in
such agency in return for an allowance for the duration of such
agreement in an amount to be determined by the agency head and
specified in the agreement, but not to exceed--
(1) $14,000 per annum if, at the time the agreement
is entered into, the Government physician has served as
a Government physician for twenty-four months or less,
or
(2) $30,000 per annum if the Government physician
has served as a Government physician for more than
twenty-four months.
For the purpose of determining length of service as a
Government physician, service as a physician under section 4104
or 4114 of title 38 or active service as a medical officer in
the commissioned corps of the Public Health Service under Title
II of the Public Health Service Act (42 U.S.C. ch. 6A) shall be
deemed service as a Government physician.
(b) An allowance may not be paid pursuant to this section
to any physician who--
(1) is employed on less than a half-time or
intermittent basis,
(2) occupies an internship or residency training
position,
(3) is a reemployed annuitant, or
(4) is fulfilling a scholarship obligation.
(c) The head of an agency, pursuant to such regulations,
criteria, and conditions as the President or his designee may
prescribe, shall determine categories of positions applicable
to physicians in such agency with respect to which there is a
significant recruitment and retention problem. Only physicians
serving in such positions shall be eligible for an allowance
pursuant to this section. The amounts of each such allowance
shall be determined by the agency head, subject to such
regulations, criteria, and conditions as the President or his
designee may prescribe, and shall be the minimum amount
necessary to deal with the recruitment and retention problem
for each such category of physicians.
(d) Any agreement entered into by a physician under this
section shall be for a period of one year of service in the
agency involved unless the physician requests an agreement for
a longer period of service.
(e) Unless otherwise provided for in the agreement under
subsection (f) of this section, an agreement under this section
shall provide that the physician, in the event that such
physician voluntarily, or because of misconduct, fails to
complete at least one year of service pursuant to such
agreement, shall be required to refund the total amount
received under this section, unless the head of the agency,
pursuant to such regulations as may be prescribed under this
section by the President or his designee, determines that such
failure is necessitated by circumstances beyond the control of
the physician.
(f) Any agreement under this section shall specify, subject
to such regulations as the President or his designee may
prescribe, the terms under which the head of the agency and the
physician may elect to terminate such agreement, and the
amounts, if any, required to be refunded by the physician for
each reason for termination.
(g) For the purpose of this section--
(1) ``Government physician'' means any individual
employed as a physician or dentist who is paid under--
(A) section 5332 of this title, relating to
the General Schedule;
(B) Subchapter \1\ VIII of chapter 53 of
this title, relating to the Senior Executive
Service;
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\1\ The first letter of the word ``Subchapter'' probably should be
lowercase.
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(C) section 5371, relating to certain
health care positions;
(D) section 3 of the Tennessee Valley
Authority Act of 1933 (16 U.S.C. 831b),
relating to the Tennessee Valley Authority;
(E) chapter 4 of title I of the Foreign
Service Act of 1980 (22 U.S.C. 3961 and
following), relating to the Foreign Service;
(F) section 10 of the Central Intelligence
Agency Act of 1949 (50 U.S.C. 403j), relating
to the Central Intelligence Agency;
(G) section 1202 of the Panama Canal Act of
1979, relating to the Panama Canal Commission;
(H) section 2 of the Act of May 29, 1959
(Public Law 86-36, as amended, 50 U.S.C. 402
note), relating to the National Security
Agency;
(I) section 5376, relating to certain
senior-level positions;
(J) section 5377, relating to critical
positions; or
(K) subchapter IX of chapter 53, relating
to special occupational pay systems; and
(2) ``agency'' means an Executive agency, as
defined in section 105 of this title, the Library of
Congress, and the District of Columbia government.
(h)(1) Any allowance paid under this section shall not be
considered as basic pay for the purposes of subchapter VI and
section 5595 of chapter 55, chapter 81 or 87 of this title, or
other benefits related to basic pay.
(2) Any allowance under this section for a Government
physician shall be paid in the same manner and at the same time
as the physician's basic pay is paid.
(i) Any regulations, criteria, or conditions that may be
prescribed under this section by the President or his designee
shall not be applicable to the Tennessee Valley Authority, and
the Tennessee Valley Authority shall have sole responsibility
for administering the provisions of this section with respect
to Government physicians employed by the Authority.
(j) Not later than June 30 of each year, the President
shall submit to each House of Congress a written report on the
operation of this section. Each report shall include, with
respect to the year covered by such report, information as to--
(1) which agencies entered into agreements under
this section;
(2) the nature and extent of the recruitment or
retention problems justifying the use of authority by
each agency under this section;
(3) the number of physicians with whom agreements
were entered into by each agency;
(4) the size of the allowances and the duration of
the agreements entered into; and
(5) the degree to which the recruitment or
retention problems referred to in paragraph (2) were
alleviated under this section.
Subpart E--Attendance and Leave
CHAPTER 61--HOURS OF WORK
SUBCHAPTER I--GENERAL PROVISIONS
Sec.
6101. Basic 40-hour workweek; work schedules; regulations.
[6102. Repealed.]
6103. Holidays.
6104. Holidays; daily, hourly, and piece-work basis employees.
6105. Closing of Executive departments.
6106. Time clocks; restrictions.
SUBCHAPTER II--FLEXIBLE AND COMPRESSED WORK SCHEDULES
6120. Purpose.
6121. Definitions.
6122. Flexible schedules; agencies authorized to use.
6123. Flexible schedules; computation of premium pay.
6124. Flexible schedules; holidays.
6125. Flexible schedules; time-recording devices.
6126. Flexible schedules; credit hours; accumulation and
compensation.
6127. Compressed schedules; agencies authorized to use.
6128. Compressed schedules; computation of premium pay.
6129. Administration of leave and retirement provisions.
6130. Application of programs in the case of collective bargaining
agreements.
6131. Criteria and review.
6132. Prohibition of coercion.
6133. Regulations; technical assistance; program review.
SUBCHAPTER I--GENERAL PROVISIONS
Sec. 6101. Basic 40-hour workweek; work schedules; regulations
(a)(1) For the purpose of this subsection, ``employee''
includes an employee of the government of the District of
Columbia and an employee whose pay is fixed and adjusted from
time to time under section 5343 or 5349 of this title, or by a
wage board or similar administrative authority serving the same
purpose, but does not include an employee or individual
excluded from the definition of employee in section 5541(2) of
this title, except as specifically provided under this
paragraph.
(2) The head of each Executive agency, military department,
and of the government of the District of Columbia shall--
(A) establish a basic administrative workweek of 40
hours for each full-time employee in his organization;
and
(B) require that the hours of work within that
workweek be performed within a period of not more than
6 of any 7 consecutive days.
(3) Except when the head of an Executive agency, a military
department, or of the government of the District of Columbia
determines that his organization would be seriously handicapped
in carrying out its functions or that costs would be
substantially increased, he shall provide, with respect to each
employee in his organization, that--
(A) assignments to tours of duty are scheduled in
advance over periods of not less than 1 week
(B) the basic 40-hour workweek is scheduled on 5
days, Monday through Friday when possible, and the 2
days outside the basic workweek are consecutive;
(C) the working hours in each day in the basic
workweek are the same;
(D) the basic nonovertime workday may not exceed 8
hours;
(E) the occurrence of holidays may not affect the
designation of the basic workweek; and
(F) breaks in working hours of more than 1 hour may
not be scheduled in a basic workday.
(4) Notwithstanding paragraph (3) of this subsection, the
head of an Executive agency, a military department, or of the
government of the District of Columbia may establish special
tours of duty, of not less than 40 hours, to enable employees
to take courses in nearby colleges, universities, or other
educational institutions that will equip them for more
effective work in the agency. Premium pay may not be paid to an
employee solely because his special tour of duty established
under this paragraph results in his working on a day or at a
time of day for which premium pay is otherwise authorized.
(5) The Architect of the Capitol may apply this subsection
to employees under the Office of the Architect of the Capitol
or the Botanic Garden. The Librarian of Congress may apply this
subsection to employees under the Library of Congress.
(b)(1) For the purpose of this subsection, ``agency'' and
``employee'' have the meanings given them by section 5541 of
this title.
(2) To the maximum extent practicable, the head of an
agency shall schedule the time to be spent by an employee in a
travel status away from his official duty station within the
regularly scheduled workweek of the employee.
(c) The Office of Personnel Management may prescribe
regulations, subject to the approval of the President,
necessary for the administration of this section insofar as
this section affects employees in or under an Executive agency.
[Sec. 6102. Repealed. Pub. L. 92-392, Sec. 7(a), Aug. 19, 1972, 86
Stat. 573.]
Sec. 6103. Holidays
(a) The following are legal public holidays:
New Year's Day, January 1.
Birthday of Martin Luther King, Jr., the third
Monday in January.
Washington's Birthday, the third Monday in
February.
Memorial Day, the last Monday in May.
Independence Day, July 4.
Labor Day, the first Monday in September.
Columbus Day, the second Monday in October.
Veterans Day, November 11.
Thanksgiving Day, the fourth Thursday in November.
Christmas Day, December 25.
(b) For the purpose of statutes relating to pay and leave
of employees, with respect to a legal public holiday and any
other day declared to be a holiday by Federal statute or
Executive order, the following rules apply:
(1) Instead of a holiday that occurs on a Saturday,
the Friday immediately before is a legal holiday for--
(A) employees whose basic workweek is
Monday through Friday; and
(B) the purpose of section 6309 of this
title.\1\
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\1\ Section 6309 of this title was repealed by section 2(26) of
Public Law 94-183 (89 Stat. 1058).
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(2) Instead of a holiday that occurs on a regular
weekly non-workday of an employee whose basic workweek
is other than Monday through Friday, except the regular
weekly non-workday administratively scheduled for the
employee instead of Sunday, the workday immediately
before that regular weekly nonworkday is a legal public
holiday for the employee.
(3) Instead of a holiday that is designated under
subsection (a) to occur on a Monday, for an employee at
a duty post outside the United States whose basic
workweek is other than Monday through Friday, and for
whom Monday is a regularly scheduled workday, the legal
public holiday is the first workday of the workweek in
which the Monday designated for the observance of such
holiday under subsection (a) occurs.
This subsection, except subparagraph (B) of paragraph (1), does
not apply to an employee whose basic workweek is Monday through
Saturday.
(c) January 20 of each fourth year after 1965, Inauguration
Day, is a legal public holiday for the purpose of statutes
relating to pay and leave of employees as defined by section
2105 of this title and individuals employed by the government
of the District of Columbia employed in the District of
Columbia, Montgomery and Prince Georges Counties in Maryland,
Arlington and Fairfax Counties in Virginia, and the cities of
Alexandria and Falls Church in Virginia. When January 20 of any
fourth year after 1965 falls on Sunday, the next succeeding day
selected for the public observance of the inauguration of the
President is a legal public holiday for the purpose of this
subsection.
(d)(1) For purposes of this subsection--
(A) the term ``compressed schedule'' has the
meaning given such term by section 6121(5); and
(B) the term ``adverse agency impact'' has the
meaning given such term by section 6131(b).
(2) An agency may prescribe rules under which employees on
a compressed schedule may, in the case of a holiday that occurs
on a regularly scheduled non-workday for such employees, and
notwithstanding any other provision of law or the terms of any
collective bargaining agreement, be required to observe such
holiday on a workday other than as provided by subsection (b),
if the agency head determines that it is necessary to do so in
order to prevent an adverse agency impact.
Sec. 6104. Holidays; daily, hourly, and piece-work basis employees
When a regular employee as defined by section 2105 of this
title or an individual employed regularly by the government of
the District of Columbia, whose pay is fixed at a daily or
hourly rate, or on a piece-work basis, is relieved or prevented
from working on a day--
(1) on which agencies are closed by Executive
order, or, for individuals employed by the government
of the District of Columbia, by order of the Mayor;
(2) by administrative order under regulations
issued by the President, or, for individuals employed
by the government of the District of Columbia, by the
Council of the District of Columbia; or
(3) solely because of the occurrence of a legal
public holiday under section 6103 of this title, or a
day declared a holiday by Federal statute, Executive
order, or, for individuals employed by the government
of the District of Columbia, by order of the Mayor;
he is entitled to the same pay for that day as for a day on
which an ordinary day's work is performed.
Sec. 6105. Closing of Executive departments
An Executive department may not be closed as a mark to the
memory of a deceased former official of the United States.
Sec. 6106. Time clocks; restrictions
A recording clock may not be used to record time of an
employee of an Executive department in the District of
Columbia, except that the Bureau of Engraving and Printing may
use such recording clocks.
SUBCHAPTER II--FLEXIBLE AND COMPRESSED WORK SCHEDULES
Sec. 6120. Purpose
The Congress finds that the use of flexible and compressed
work schedules has the potential to improve productivity in the
Federal Government and provide greater service to the public.
Sec. 6121. Definitions
For purposes of this subchapter--
(1) ``agency'' means any Executive agency, any
military department, the Government Printing Office,
and the Library of Congress;
(2) ``employee'' has the meaning given the term in
subsection (a) of section 2105 of this title, except
that such term also includes an employee described in
subsection (c) of that section;
(3) ``basic work requirement'' means the number of
hours, excluding overtime hours, which an employee is
required to work or is required to account for by leave
or otherwise;
(4) ``credit hours'' means any hours, within a
flexible schedule established under section 6122 of
this title, which are in excess of an employee's basic
work requirement and which the employee elects to work
so as to vary the length of a workweek or a workday;
(5) ``compressed schedule'' means--
(A) in the case of a full-time employee, an
80-hour biweekly basic work requirement which
is scheduled for less than 10 workdays, and
(B) in the case of a part-time employee, a
biweekly basic work requirement of less than 80
hours which is scheduled for less than 10
workdays;
(6) ``overtime hours'', when used with respect to
flexible schedule programs under sections 6122 through
6126 of this title, means all hours in excess of 8
hours in a day or 40 hours in a week which are
officially ordered in advance, but does not include
credit hours;
(7) ``overtime hours'', when used with respect to
compressed schedule programs under sections 6127 and
6128 of this title, means any hours in excess of those
specified hours which constitute the compressed
schedule; and
(8) ``collective bargaining'', ``collective
bargaining agreement'', and ``exclusive
representative'' have the same meanings given such
terms--
(A) by section 7103(a)(12), (8), and (16)
of this title, respectively, in the case of any
unit covered by chapter 71 of this title; and
(B) in the case of any other unit, by the
corresponding provisions applicable under the
personnel system covering this unit.
Sec. 6122. Flexible schedules; agencies authorized to use
(a) Notwithstanding section 6101 of this title, each agency
may establish, in accordance with this subchapter, programs
which allow the use of flexible schedules which include--
(1) designated hours and days during which an
employee on such a schedule must be present for work;
and
(2) designated hours during which an employee on
such a schedule may elect the time of such employee's
arrival at and departure from work, solely for such
purpose or, if and to the extent permitted, for the
purpose of accumulating credit hours to reduce the
length of the workweek or another workday.
An election by an employee referred to in paragraph (2) shall
be subject to limitations generally prescribed to ensure that
the duties and requirements of the employee's position are
fulfilled.
(b) Notwithstanding any other provision of this subchapter,
but subject to the terms of any written agreement referred to
in section 6130(a) of this title, if the head of an agency
determines that any organization within the agency which is
participating in a program under subsection (a) is being
substantially disrupted in carrying out its functions or is
incurring additional costs because of such participation, such
agency head may--
(1) restrict the employees' choice of arrival and
departure time,
(2) restrict the use of credit hours, or
(3) exclude from such program any employee or group
of employees.
Sec. 6123. Flexible schedules; computation of premium pay
(a) For purposes of determining compensation for overtime
hours in the case of an employee participating in a program
under section 6122 of this title--
(1) the head of an agency may, on request of the
employee, grant the employee compensatory time off in
lieu of payment for such overtime hours, whether or not
irregular or occasional in nature and notwithstanding
the provisions of sections 5542(a), 5543(a)(1) and
section 5544(a) of this title, section 7453(e) of title
38, section 7 of the Fair Labor Standards Act (29
U.S.C. 207), or any other provision of law; or
(2) the employee shall be compensated for such
overtime hours in accordance with such provisions, as
applicable.
(b) Notwithstanding the provisions of law referred to in
subsection (a)(1) of this section, an employee shall not be
entitled to be compensated for credit hours worked except to
the extent authorized under section 6126 of this title or to
the extent such employee is allowed to have such hours taken
into account with respect to the employee's basic work
requirement.
(c)(1) Notwithstanding section 5545(a) of this title,
premium pay for nightwork will not be paid to an employee
otherwise subject to such section solely because the employee
elects to work credit hours, or elects a time of arrival or
departure, at a time of day for which such premium pay is
otherwise authorized, except that--
(A) if an employee is on a flexible schedule under
which--
(i) the number of hours during which such
employee must be present for work, plus
(ii) the number of hours during which such
employee may elect to work credit hours or
elect the time of arrival at and departure from
work,
which occur outside of the nightwork hours designated
in or under such section 5545(a) total less than 8
hours, such premium pay shall be paid for those hours
which, when combined with such total, do not exceed 8
hours, and
(B) if an employee is on a flexible schedule under
which the hours that such employee must be present for
work include any hours designated in or under such
section 5545(a), such premium pay shall be paid for
such hours so designated.
(2) Notwithstanding section 5343(f) of this title, and
section 7453(b) of title 38, night differential will not be
paid to any employee otherwise subject to either of such
sections solely because such employee elects to work credit
hours, or elects a time of arrival or departure, at a time of
day for which night differential is otherwise authorized,
except that such differential shall be paid to an employee on a
flexible schedule under this subchapter--
(A) in the case of an employee subject to
subsection (f) of such section 5343, for which all or a
majority of the hours of such schedule for any day fall
between the hours specified in such subsection, or
(B) in the case of an employee subject to
subsection (b) of such section 7453, for which 4 hours
of such schedule fall between the hours specified in
such subsection.
Sec. 6124. Flexible schedules; holidays
Notwithstanding sections 6103 and 6104 of this title, if
any employee on a flexible schedule under section 6122 of this
title is relieved or prevented from working on a day designated
as a holiday by Federal statute or Executive order, such
employee is entitled to pay with respect to that day for 8
hours (or, in the case of a part-time employee, an appropriate
portion of the employee's biweekly basic work requirement as
determined under regulations prescribed by the Office of
Personnel Management).
Sec. 6125. Flexible schedules; time-recording devices
Notwithstanding section 6106 of this title, the Office of
Personnel Management or any agency may use recording clocks as
part of programs under section 6122 of this title.
Sec. 6126. Flexible schedules; credit hours; accumulation and
compensation
(a) Subject to any limitation prescribed by the Office of
Personnel Management or the agency, a full-time employee on a
flexible schedule can accumulate not more than 24 credit hours,
and a part-time employee can accumulate not more than one-
fourth of the hours in such employee's biweekly basic work
requirement, for carryover from a biweekly pay period to a
succeeding biweekly pay period for credit to the basic work
requirement for such period.
(b) Any employee who is on a flexible schedule program
under section 6122 of this title and who is no longer subject
to such a program shall be paid at such employee's then current
rate of basic pay for--
(1) in the case of a full-time employee, not more
than 24 credit hours accumulated by such employee, or
(2) in the case of a part-time employee, the number
of credit hours (not in excess of one-fourth of the
hours in such employee's biweekly basic work
requirement) accumulated by such employee.
Sec. 6127. Compressed schedules; agencies authorized to use
(a) Notwithstanding section 6101 of this title, each agency
may establish programs which use a 4-day workweek or other
compressed schedule.
(b)(1) An employee in a unit with respect to which an
organization of Government employees has not been accorded
exclusive recognition shall not be required to participate in
any program under subsection (a) unless a majority of the
employees in such unit who, but for this paragraph, would be
included in such program have voted to be so included.
(2) Upon written request to any agency by an employee, the
agency, if it determines that participation in a program under
subsection (a) would impose a personal hardship on such
employee, shall--
(A) except such employee from such program; or
(B) reassign such employee to the first position
within the agency--
(i) which becomes vacant after such
determination,
(ii) which is not included within such
program,
(iii) for which such employee is qualified,
and
(iv) which is acceptable to the employee.
A determination by an agency under this paragraph shall be made
not later than 10 days after the day on which a written request
for such determination is received by the agency.
Sec. 6128. Compressed schedules; computation of premium pay
(a) The provisions of sections 5542(a) and 5544(a) of this
title, section 7453(e) of title 38, section 7 of the Fair Labor
Standards Act (29 U.S.C. 207), or any other law, which relate
to premium pay for overtime work, shall not apply to the hours
which constitute a compressed schedule.
(b) In the case of any full-time employee, hours worked in
excess of the compressed schedule shall be overtime hours and
shall be paid for as provided by the applicable provisions
referred to in subsection (a) of this section. In the case of
any part-time employee on a compressed schedule, overtime pay
shall begin to be paid after the same number of hours of work
after which a full-time employee on a similar schedule would
begin to receive overtime pay.
(c) Notwithstanding section 5544(a) or 5546(a) of this
title, or any other applicable provision of law, in the case of
any full-time employee on a compressed schedule who performs
work (other than overtime work) on a tour of duty for any
workday a part of which is performed on a Sunday, such employee
is entitled to pay for work performed during the entire tour of
duty at the rate of such employee's basic pay, plus premium pay
at a rate equal to 25 percent of such basic pay rate.
(d) Notwithstanding section 5546(b) of this title, an
employee on a compressed schedule who performs work on a
holiday designated by Federal statute or Executive order is
entitled to pay at the rate of such employee's basic pay, plus
premium pay at a rate equal to such basic pay rate, for such
work which is not in excess of the basic work requirement of
such employee for such day. For hours worked on such a holiday
in excess of the basic work requirement for such day, the
employee is entitled to premium pay in accordance with the
provisions of section 5542(a) or 5544(a) of this title, as
applicable, or the provisions of section 7 of the Fair Labor
Standards Act (29 U.S.C. 207) whichever provisions are more
beneficial to the employee.
Sec. 6129. Administration of leave and retirement provisions
For purposes of administering sections 6303(a), 6304,
6307(a) and (c) \1\, 6323, 6326, 6327, and 8339(m) of this
title, in the case of an employee who is in any program under
this subchapter, references to a day or workday (or to
multiples or parts thereof) contained in such sections shall be
considered to be references to 8 hours (or to the respective
multiples or parts thereof).
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\1\ Section 629(b)(2) of Public Law 103-329 (108 Stat. 2423)
amended this section by striking ``6307 (a) and (c),'' and inserting
``6307 (a) and (d)''. The amendment was unexecutable because there
appeared a space between ``6307'' and ``(a)''.
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Sec. 6130. Application of programs in the case of collective bargaining
agreements
(a)(1) In the case of employees in a unit represented by an
exclusive representative, any flexible or compressed work
schedule, and the establishment and termination of any such
schedule, shall be subject to the provisions of this subchapter
and the terms of a collective bargaining agreement between the
agency and the exclusive representative.
(2) Employees within a unit represented by an exclusive
representative shall not be included within any program under
this subchapter except to the extent expressly provided under a
collective bargaining agreement between the agency and the
exclusive representative.
(b) An agency may not participate in a flexible or
compressed schedule program under a collective bargaining
agreement which contains premium pay provisions which are
inconsistent with the provisions of section 6123 or 6128 of
this title, as applicable.
Sec. 6131. Criteria and review
(a) Notwithstanding the preceding provisions of this
subchapter or any collective bargaining agreement and subject
to subsection (c) of this section, if the head of an agency
finds that a particular flexible or compressed schedule under
this subchapter has had or would have an adverse agency impact,
the agency shall promptly determine not to--
(1) establish such schedule; or
(2) continue such schedule, if the schedule has
already been established.
(b) For purposes of this section, ``adverse agency impact''
means--
(1) a reduction of the productivity of the agency;
(2) a diminished level of services furnished to the
public by the agency; or
(3) an increase in the cost of agency operations
(other than a reasonable administrative cost relating
to the process of establishing a flexible or compressed
schedule).
(c)(1) This subsection shall apply in the case of any
schedule covering employees in a unit represented by an
exclusive representative.
(2)(A) If an agency and an exclusive representative reach
an impasse in collective bargaining with respect to an agency
determination under subsection (a)(1) not to establish a
flexible or compressed schedule, the impasse shall be presented
to the Federal Service Impasses Panel (hereinafter in this
section referred to as the ``Panel'').
(B) The Panel shall promptly consider any case presented
under subparagraph (A), and shall take final action in favor of
the agency's determination if the finding on which it is based
is supported by evidence that the schedule is likely to cause
an adverse agency impact.
(3)(A) If an agency and an exclusive representative have
entered into a collective bargaining agreement providing for
use of a flexible or compressed schedule under this subchapter
and the head of the agency determines under subsection (a)(2)
to terminate a flexible or compressed schedule, the agency may
reopen the agreement to seek termination of the schedule
involved.
(B) If the agency and exclusive representative reach an
impasse in collective bargaining with respect to terminating
such schedule, the impasse shall be presented to the Panel.
(C) The Panel shall promptly consider any case presented
under subparagraph (B), and shall rule on such impasse not
later than 60 days after the date the Panel is presented the
impasse. The Panel shall take final action in favor of the
agency's determination to terminate a schedule if the finding
on which the determination is based is supported by evidence
that the schedule has caused an adverse agency impact.
(D) Any such schedule may not be terminated until--
(i) the agreement covering such schedule is
renegotiated or expires or terminates pursuant to the
terms of that agreement; or
(ii) the date of the Panel's final decision, if an
impasse arose in the reopening of the agreement under
subparagraph (A) of this paragraph.
(d) This section shall not apply with respect to flexible
schedules that may be established without regard to the
authority provided under this subchapter.
Sec. 6132. Prohibition of coercion
(a) An employee may not directly or indirectly intimidate,
threaten, or coerce, or attempt to intimidate, threaten, or
coerce, any other employee for the purpose of interfering
with--
(1) such employee's rights under sections 6122
through 6126 of this title to elect a time of arrival
or departure, to work or not to work credit hours, or
to request or not to request compensatory time off in
lieu of payment for overtime hours; or
(2) such employee's right under section 6127(b)(1)
of this title to vote whether or not to be included
within a compressed schedule program or such employee's
right to request an agency determination under section
6127(b)(2) of this title.
(b) For the purpose of subsection (a), the term
``intimidate, threaten, or coerce'' includes, but is not
limited to, promising to confer or conferring any benefit (such
as appointment, promotion, or compensation), or effecting or
threatening to effect any reprisal (such as deprivation of
appointment, promotion, or compensation).
Sec. 6133. Regulations; technical assistance; program review
(a) The Office of Personnel Management shall prescribe
regulations necessary for the administration of the programs
established under this subchapter.
(b)(1) The Office shall provide educational material, and
technical aids and assistance, for use by an agency in
connection with establishing and maintaining programs under
this subchapter.
(2) In order to provide the most effective materials, aids,
and assistance under paragraph (1), the Office shall conduct
periodic reviews of programs established by agencies under this
subchapter particularly insofar as such programs may affect--
(A) the efficiency of Government operations;
(B) mass transit facilities and traffic;
(C) levels of energy consumption;
(D) service to the public;
(E) increased opportunities for full-time and part-
time employment; and
(F) employees' job satisfaction and nonworklife.
(c)(1) With respect to employees in the Library of
Congress, the authority granted to the Office of Personnel
Management under this subchapter shall be exercised by the
Librarian of Congress.
(2) With respect to employees in the Government Printing
Office, the authority granted to the Office of Personnel
Management under this subchapter shall be exercised by the
Public Printer.
CHAPTER 63--LEAVE
SUBCHAPTER I--ANNUAL AND SICK LEAVE
Sec.
6301. Definitions.
6302. General provisions.
6303. Annual leave; accrual.
6304. Annual leave; accumulation.
6305. Home leave; leave for Chiefs of Missions; leave for crews of
vessels.
6306. Annual leave; refund of lump-sum payment; recredit of annual
leave.
6307. Sick leave; accrual and accumulation.
6308. Transfers between positions under different leave systems.
[6309. Repealed.]
6310. Leave of absence; aliens.
6311. Regulations.
6312. Accrual and accumulation for former ASCS county office and
nonappropriated fund employees.
SUBCHAPTER II--OTHER PAID LEAVE
6321. Absence of veterans to attend funeral services.
6322. Leave for jury or witness service; official duty status for
certain witness service.
6323. Military leave; Reserves and National Guardsmen.
6324. Absence of certain police and firemen.
6325. Absence resulting from hostile action abroad.
6326. Absence in connection with funerals of immediate relatives in
the Armed Forces.
6327. Absence in connection with serving as a bone-marrow or organ
donor.
6328. Absence in connection with funerals of fellow Federal law
enforcement officers.
SUBCHAPTER III--VOLUNTARY TRANSFERS OF LEAVE
6331. Definitions.
6332. General authority.
6333. Receipt and use of transferred leave.
6334. Donations of leave.
6335. Termination of medical emergency.
6336. Restoration of transferred leave.
6337. Accrual of leave.
6338. Prohibition of coercion.
6339. Additional leave transfer programs.
6340. Inapplicability of certain provisions.
SUBCHAPTER IV--VOLUNTARY LEAVE BANK PROGRAM
6361. Definitions.
6362. General authority.
6363. Establishment of leave banks.
6364. Establishment of Leave Bank Boards.
6365. Contributions of annual leave.
6366. Eligibility for leave recipients.
6367. Receipt and use of leave from a leave bank.
6368. Termination of medical emergency.
6369. Restoration of transferred leave.
6370. Prohibition of coercion.
6371. Accrual of leave.
6372. Additional leave bank programs.
6373. Authority to participate in both programs.
SUBCHAPTER V--FAMILY AND MEDICAL LEAVE
6381. Definitions.
6382. Leave requirement.
6383. Certification.
6384. Employment and benefits protection.
6385. Prohibition of coercion.
6386. Health insurance.
6387. Regulations.
SUBCHAPTER VI--LEAVE TRANSFER IN DISASTERS AND EMERGENCIES
6391. Authority for leave transfer program in disasters and
emergencies.
SUBCHAPTER I--ANNUAL AND SICK LEAVE
Sec. 6301. Definitions
For the purpose of this subchapter--
(1) ``United States'', when used in a geographical
sense means the several States and the District of
Columbia; and
(2) ``employee'' means--
(A) an employee as defined by section 2105
of this title; and
(B) an individual first employed by the
government of the District of Columbia before
October 1, 1987; \1\
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\1\ Section 207(c) of Public Law 99-335 (June 6, 1986), as amended
by section 201 of Public Law 99-556 (October 27, 1986), provides as
follows:
(c)(1) Amendment to Section 6301.--Section 6301(2)(B) of title 5,
United States Code, is amended to read as follows:
---------------------------------------------------------------------------
``(B) an individual first employed by the government of the
District of Columbia before October 1, 1987;''.
---------------------------------------------------------------------------
(2) The amendment made by paragraph (1) shall not result in the
coverage, under subchapter I of chapter 63 of title 5, United States
Code, of any individual (or class of individuals) employed by the
government of the District of Columbia who would not have been covered
under such subchapter if such amendment had not been made.
---------------------------------------------------------------------------
but does not include--
(i) a teacher or librarian of the public
schools of the District of Columbia;
(ii) a part-time employee who does not have
an established regular tour of duty during the
administrative workweek;
(iii) a temporary employee engaged in
construction work at an hourly rate;
(iv) an employee of the Panama Canal
Commission when employed on the Isthmus of
Panama;
(v) a physician, dentist, or nurse in the
Veterans Health Administration of the
Department of Veterans Affairs;
(vi) an employee of either House of
Congress or of the two Houses;
(vii) an employee of a corporation
supervised by the Farm Credit Administration if
private interests elect or appoint a member of
the board of directors;
(viii) an alien employee who occupies a
position outside the United States, except as
provided by section 6310 of this title;
(ix) a ``teacher'' or an individual holding
a ``teaching position'' as defined by section
901 of title 20;
(x) an officer in the executive branch or
in the government of the District of Columbia
who is appointed by the President and whose
rate of basic pay exceeds the highest rate
payable under section 5332 of this title;
(xi) an officer in the executive branch or
in the government of the District of Columbia
who is designated by the President, except a
postmaster, United States attorney, or United
States marshal;
(xii) a chief of mission (as defined in
section 102(a)(3) of the Foreign Service Act of
1980); or
(xiii) an officer in the legislative or
judicial branch who is appointed by the
President.
Notwithstanding clauses (x)-(xii) of paragraph (2), the term
``employee'' includes any member of the Senior Foreign Service
or any Foreign Service officer (other than a member or officer
serving as chief of mission or in a position which requires
appointment by and with the advice and consent of the Senate)
and any member of the Foreign Service commissioned as a
diplomatic or consular officer, or both, under section 312 of
the Foreign Service Act of 1980.
Sec. 6302. General provisions
(a) The days of leave provided by this subchapter are days
on which an employee would otherwise work and receive pay and
are exclusive of holidays and nonworkdays established by
Federal statute, Executive order, or administrative order.
(b) For the purpose of this subchapter an employee is
deemed employed for a full biweekly pay period if he is
employed during the days within that period, exclusive of
holidays and nonworkdays established by Federal statute,
Executive order, or administrative order, which fall within his
basic administrative workweek.
(c) A part-time employee, unless otherwise excepted, is
entitled to the benefits provided by subsection (d) of this
section and sections 6303, 6304(a), (b), 6305(a), 6307, and
6310 of this title on a pro rata basis.
(d) The annual leave provided by this subchapter, including
annual leave that will accrue to an employee during the year,
may be granted at any time during the year as the head of the
agency concerned may prescribe.
(e) If an officer excepted from this subchapter by section
6301(2)(x)-(xiii) of this title, without a break in service,
again becomes subject to this subchapter on completion of his
service as an excepted officer, the unused annual and sick
leave standing to his credit when he was excepted from this
subchapter is deemed to have remained to his credit.
(f) An employee who uses excess annual leave credited
because of administrative error may elect to refund the amount
received for the days of excess leave by lump-sum or
installment payments or to have the excess leave carried
forward as a charge against later-accruing annual leave, unless
repayment is waived under section 5584 of this title.
(g) An employee who is being involuntarily separated from
an agency due to a reduction in force or transfer of function
under subchapter I of chapter 35 or section 3595 may elect to
use annual leave to the employee's credit to remain on the
agency's rolls after the date the employee would otherwise have
been separated if, and only to the extent that, such additional
time in a pay status will enable the employee to qualify for an
immediate annuity under section 8336, 8412, 8414, or to qualify
to carry health benefits coverage into retirement under section
8905(b).
Sec. 6303. Annual leave; accrual
(a) An employee is entitled to annual leave with pay which
accrues as follows--
(1) one-half day for each full biweekly pay period
for an employee with less than 3 years of service;
(2) three-fourths day for each full biweekly pay
period, except that the accrual for the last full
biweekly pay period in the year is one and one-fourth
days, for an employee with 3 but less than 15 years of
service; and
(3) one day for each full biweekly pay period for
an employee with 15 or more years of service.
In determining years of service, an employee is entitled to
credit for all service of a type that would be creditable under
section 8332, regardless of whether or not the employee is
covered by subchapter III of chapter 83. However, an employee
who is a retired member of a uniformed service as defined by
section 3501 of this title is entitled to credit for active
military service only if--
(A) his retirement was based on disability--
(i) resulting from injury or disease
received in line of duty as a direct result of
armed conflict; or
(ii) caused by an instrumentality of war
and incurred in line of duty during a period of
war as defined by sections 101 and 301 of title
38;
(B) that service was performed in the armed forces
during a war, or in a campaign or expedition for which
a campaign badge has been authorized; or
(C) on November 30, 1964, he was employed in a
position to which this subchapter applies and
thereafter he continued to be so employed without a
break in service of more than 30 days.
The determination of years of service may be made on the basis
of an affidavit of the employee. Leave provided by this
subchapter accrues to an employee who is not paid on the basis
of biweekly pay periods on the same basis as it would accrue if
the employee were paid on the basis of biweekly pay periods.
(b) Notwithstanding subsection (a) of this section, an
employee whose current employment is limited to less than 90
days is entitled to annual leave under this subchapter only
after being currently employed for a continuous period of 90
days under successive appointments without a break in service.
After completing the 90-day period, the employee is entitled to
be credited with the leave that would have accrued to him under
subsection (a) of this section except for this subsection.
(c) A change in the rate of accrual of annual leave by an
employee under this section takes effect at the beginning of
the pay period after the pay period, or corresponding period
for an employee who is not paid on the basis of biweekly pay
periods, in which the employee completed the prescribed period
of service.
(d) Leave granted under this subchapter is exclusive of
time actually and necessarily occupied in going to or from a
post of duty and time necessarily occupied awaiting
transportation, in the case of an employee--
(1) to whom section 6304(b) of this title applies;
(2) whose post of duty is outside the United
States; and
(3) who returns on leave to the United States, or
to his place of residence, which is outside the area of
employment, in its territories or possessions including
the Commonwealth of Puerto Rico.
This subsection does not apply to more than one period of leave
in a prescribed tour of duty at a post outside the United
States.
Sec. 6304. Annual leave; accumulation
(a) Except as provided by subsections (b), (d), (e), (f),
and (g) of this section, annual leave provided by section 6303
of this title, which is not used by an employee, accumulates
for use in succeeding years until it totals not more than 30
days at the beginning of the first full bi-weekly pay period,
or corresponding period for an employee who is not paid on the
basis of biweekly pay periods, occurring in a year.
(b) Annual leave not used by an employee of the Government
of the United States in one of the following classes of
employees stationed outside the United States accumulates for
use in succeeding years until it totals not more than 45 days
at the beginning of the first full biweekly pay period, or
corresponding period for an employee who is not paid on the
basis of biweekly pay periods, occurring in a year:
(1) Individuals directly recruited or transferred
by the Government of the United States from the United
States or its territories or possessions including the
Commonwealth of Puerto Rico for employment outside the
area of recruitment or from which transferred.
(2) Individuals employed locally but--
(A)(i) who were originally recruited from
the United States or its territories or
possessions including the Commonwealth of
Puerto Rico but outside the area of employment;
(ii) who have been in substantially
continuous employment by other agencies of the
United States, United States firms, interests,
or organizations, international organizations
in which the United States participates, or
foreign governments; and
(iii) whose conditions of employment
provide for their return transportation to the
United States or its territories or possessions
including the Commonwealth of Puerto Rico; or
(B)(i) who were at the time of employment
temporarily absent, for the purpose of travel
or formal study, from the United States, or
from their respective places of residence in
its territories or possessions including the
Commonwealth of Puerto Rico; and
(ii) who, during the temporary absence,
have maintained residence in the United States
or its territories or possessions including the
Commonwealth of Puerto Rico but outside the
area of employment.
(3) Individuals who are not normally residents of
the area concerned and who are discharged from service
in the armed forces to accept employment with an agency
of the Government of the United States.
(c) Annual leave in excess of the amount allowable--
(1) under subsection (a) or (b) of this section
which was accumulated under earlier statute; or
(2) under subsection (a) of this section which was
accumulated under subsection (b) of this section by an
employee who becomes subject to subsection (a) of this
section;
remains to the credit of the employee until used. The excess
annual leave is reduced at the beginning of the first full
biweekly pay period, or corresponding period for an employee
who is not paid on the basis of biweekly pay periods, occurring
in a year, by the amount of annual leave the employee used
during the preceding year in excess of the amount which accrued
during that year, until the employee's accumulated leave does
not exceed the amount allowed under subsection (a) or (b) of
this section, as appropriate.
(d)(1) Annual leave which is lost by operation of this
section because of--
(A) administrative error when the error causes a
loss of annual leave otherwise accruable after June 30,
1960;
(B) exigencies of the public business when the
annual leave was scheduled in advance; or
(C) sickness of the employee when the annual leave
was scheduled in advance;
shall be restored to the employee.
(2) Annual leave restored under paragraph (1) of this
subsection, or under clause (2) of section 5562(a) of this
title, which is in excess of the maximum leave accumulation
permitted by law shall be credited to a separate leave account
for the employee and shall be available for use by the employee
within the time limits prescribed by regulations of the Office
of Personnel Management. Leave credited under this paragraph
but unused and still available to the employee under the
regulations prescribed by the Office shall be included in the
lump-sum payment under section 5551 or 5552(1) of this title
but may not be retained to the credit of the employee under
section 5552(2) of this title.
(3)(A) For the purpose of this subsection, the closure of,
and any realignment with respect to, an installation of the
Department of Defense pursuant to the Defense Base Closure and
Realignment Act of 1990 (part A of title XXIX of Public Law
101-510; 10 U.S.C. 2687 note) during any period, the closure of
an installation of the Department of Defense in the Republic of
Panama in accordance with the Panama Canal Treaty of 1977, and
the closure of any other installation of the Department of
Defense, during the period beginning on October 1, 1992, and
ending on December 31, 1997, shall be deemed to create an
exigency of the public business and any leave that is lost by
an employee of such installation by operation of this section
(regardless of whether such leave was scheduled) shall be
restored to the employee and shall be credited and available in
accordance with paragraph (2).
(B) For the purpose of subparagraph (A), the term
``realignment'' means a base realignment (as defined in
subsection (e)(3) of section 2687 of title 10) that meets the
requirements of subsection (a)(2) of such section.
(4)(A) For the purpose of this subsection, service of a
Department of Defense emergency essential employee in a combat
zone is an exigency of the public business for that employee.
Any leave that, by reason of such service, is lost by the
employee by operation of this section (regardless of whether
such leave was scheduled) shall be restored to the employee and
shall be credited and available in accordance with paragraph
(2).
(B) As used in subparagraph (A)--
(i) the term ``Department of Defense emergency
essential employee'' means an employee of the
Department of Defense who is designated under section
1580 of title 10 as an emergency essential employee;
and
(ii) the term ``combat zone'' has the meaning given
such term in section 112(c)(2) of the Internal Revenue
Code of 1986.
(e) Annual leave otherwise accruable after June 30, 1960,
which is lost by operation of this section because of
administrative error and which is not credited under subsection
(d)(2) of this section because the employee is separated before
the error is discovered, is subject to credit and liquidation
by lump-sum payment only if a claim therefor is filed within 3
years immediately following the date of discovery of the error.
Payment shall be made by the agency of employment when the
lump-sum payment provisions of section 5551 of this title last
became applicable to the employee at the rate of basic pay in
effect on the date the lump-sum provisions became applicable.
(f)(1) This subsection applies with respect to annual leave
accrued by an individual while serving in a position in--
(A) the Senior Executive Service;
(B) the Senior Foreign Service;
(C) the Defense Intelligence Senior Executive
Service;
(D) the Senior Cryptologic Executive Service; or
(E) the Federal Bureau of Investigation and Drug
Enforcement Administration Senior Executive Service.
(2) For purposes of applying any limitation on accumulation
under this section with respect to any annual leave described
in paragraph (1)--
(A) ``30 days'' in subsection (a) shall be deemed
to read ``90 days''; and
(B) ``45 days'' in subsection (b) shall be deemed
to read ``90 days''.
Sec. 6305. Home leave; leave for Chiefs of Missions; leave for crews of
vessels
(a) After 24 months of continuous service outside the
United States (or after a shorter period of such service if the
employee's assignment is terminated for the convenience of the
Government), an employee may be granted leave of absence, under
regulations of the President, at a rate not to exceed 1 week
for each 4 months of that service without regard to other leave
provided by this subchapter. Leave so granted--
(1) is for use in the United States, or if the
employee's place of residence is outside the area of
employment, in its territories or possessions including
the Commonwealth of Puerto Rico;
(2) accumulates for future use without regard to
the limitation in section 6304(b) of this title; and
(3) may not be made the basis for terminal leave or
for a lump-sum payment.
(b) The President may authorize leave of absence to a chief
of mission excepted from this subchapter by section
6301(2)(xii) of this title for use in the United States and its
territories or possessions. Leave so authorized does not
constitute a leave system and may not be made the basis for a
lump-sum payment.
(c) An officer, crewmember, or other employee serving
aboard an oceangoing vessel on an extended voyage may be
granted leave of absence, under regulations of the Office of
Personnel Management, at a rate not to exceed 2 days for each
30 calendar days of that service without regard to other leave
provided by this subchapter. Leave so granted--
(1) accumulates for future use without regard to
the limitation in section 6304(b) of this title;
(2) may not be made the basis for a lump-sum
payment, except that civil service mariners of the
Military Sealift Command on temporary promotion aboard
ship may be paid the difference between their temporary
and permanent rates of pay for leave accrued under this
section and section 6303 and not otherwise used during
the temporary promotion upon the expiration or
termination of the temporary promotion; and
(3) may not be made the basis for terminal leave
except under such special or emergency circumstances as
may be prescribed under the regulations of the Office.
Sec. 6306. Annual leave; refund of lump-sum payment; recredit of annual
leave
(a) When an individual who received a lump-sum payment for
leave under section 5551 of this title is reemployed before the
end of the period covered by the lump-sum payment in or under
the Government of the United States or the government of the
District of Columbia, except in a position excepted from this
subchapter by section 6301(2)(ii), (iii), (vi), or (vii) of
this title, he shall refund to the employing agency an amount
equal to the pay covering the period between the date of
reemployment and the expiration of the lump-sum period.
(b) An amount refunded under subsection (a) of this section
shall be deposited in the Treasury of the United States to the
credit of the employing agency. When an individual is
reemployed under the same leave system, an amount of leave
equal to the leave represented by the refund shall be
recredited to him in the employing agency. When an individual
is reemployed under a different leave system, an amount of
leave equal to the leave represented by the refund shall be
recredited to him in the employing agency on an adjusted basis
under regulations prescribed by the Office of Personnel
Management. When an individual is reemployed in a position
excepted from this subchapter by section 6301(2)(x)-(xiii) of
this title, an amount of leave equal to the leave represented
by the refund is deemed, on separation from the service, death,
or transfer to another position in the service, to have
remained to his credit.
Sec. 6307. Sick leave; accrual and accumulation
(a) An employee is entitled to sick leave with pay which
accrues on the basis of one-half day for each full biweekly pay
period, except that sick leave with pay accrues to a member of
the Firefighting Division of the Fire Department of the
District of Columbia on the basis of two-fifths of a day for
each full biweekly pay period.
(b) Sick leave provided by this section, which is not used
by an employee, accumulates for use in succeeding years.
(c) Sick leave provided by this section may be used for
purposes relating to the adoption of a child.
(d) When required by the exigencies of the situation, a
maximum of 30 days sick leave with pay may be advanced for
serious disability or ailment, or for purposes relating to the
adoption of a child, except that a maximum of 24 days sick
leave with pay may be advanced to a member of the Firefighting
Division of the Fire Department of the District of Columbia.
(d)(1) \1\ For the purpose of this subsection, the term
``family member'' shall have such meaning as the Office of
Personnel Management shall by regulation prescribe, except that
such term shall include any individual who meets the definition
given that term, for purposes of the leave transfer program
under subchapter III, under regulations prescribed by the
Office (as in effect on January 1, 1993).
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\1\ So in original. Public Law 103-329 redesignated section 6307(c)
as (d) and added a new subsection (c). Public Law 103-388 amended
section 6307 by adding a new subsection (d); probably should be
redesignated as subsection (e).
---------------------------------------------------------------------------
(2) Subject to paragraph (3) and in addition to any other
allowable purpose, sick leave may be used by an employee--
(A) to give care or otherwise attend to a family
member having an illness, injury, or other condition
which, if an employee had such condition, would justify
the use of sick leave by such an employee; or
(B) for purposes relating to the death of a family
member, including to make arrangements for or attend
the funeral of such family member.
(3)(A) Sick leave may be used by an employee for the
purposes provided under paragraph (2) only to the extent the
amount used for such purposes does not exceed--
(i) 40 hours in any year, plus
(ii) up to an additional 64 hours in any year, but
only to the extent the use of such additional hours
does not cause the amount of sick leave to the
employee's credit to fall below 80 hours.
(B) In the case of a part-time employee or an employee on
an uncommon tour of duty, the Office of Personnel Management
shall establish limitations that are proportional to those
prescribed under subparagraph (A).
(4)(A) This subsection shall be effective during the 3-year
period that begins upon the expiration of the 2-month period
that begins on the date of the enactment of this subsection.
(B) Not later than 6 months before the date on which this
subsection is scheduled to cease to be effective, the Office
shall submit a report to Congress in which it shall evaluate
the operation of this subsection and make recommendations as to
whether or not this subsection should be continued beyond such
date.
Sec. 6308. Transfers between positions under different leave systems
(a) The annual and sick leave to the credit of an employee
who transfers between positions under different leave systems
without a break in service shall be transferred to his credit
in the employing agency on an adjusted basis under regulations
prescribed by the Office of Personnel Management, unless the
individual is excepted from this subchapter by section
6301(2)(ii), (iii), (vi), or (vii) of this title. However, when
a former member receiving a retirement annuity under sections
521-535 of title 4, District of Columbia Code, is reemployed in
a position to which this subchapter applies, his sick leave
balance may not be recredited to his account on the later
reemployment.
(b) The annual leave, sick leave, and home leave to the
credit of a nonappropriated fund employee of the Department of
Defense or the Coast Guard described in section 2105(c) who
moves without a break in service of more than 3 days to a
position in the Department of Defense or the Coast Guard,
respectively, that is subject to this subchapter shall be
transferred to the employee's credit. The annual leave, sick
leave, and home leave to the credit of an employee of the
Department of Defense or the Coast Guard who is subject to this
subchapter and who moves without a break in service of more
than 3 days to a position under a nonappropriated fund
instrumentality of the Department of Defense or the Coast
Guard, respectively, described in section 2105(c), shall be
transferred to the employee's credit under the nonappropriated
fund instrumentality. The Secretary of Defense or the Secretary
of Transportation, as appropriate, may provide for a transfer
of funds in an amount equal to the value of the transferred
annual leave to compensate the gaining entity for the cost of a
transfer of annual leave under this subsection.
[Sec. 6309. Repealed. Pub. L. 94-183, Sec. 2(26), Dec. 31, 1975, 89
Stat. 1058.]
Sec. 6310. Leave of absence; aliens
The head of the agency concerned may grant leave of absence
with pay, not in excess of the amount of annual and sick leave
allowable to citizen employees under this subchapter, to alien
employees who occupy positions outside the United States.
Sec. 6311. Regulations
The Office of Personnel Management may prescribe
regulations necessary for the administration of this
subchapter.
Sec. 6312. Accrual and accumulation for former ASCS county office and
nonappropriated fund employees
(a) Credit shall be given in determining years of service
for the purpose of section 6303(a) for--
(1) service as an employee of a county committee
established pursuant to section 8(b) of the Soil
Conservation and Allotment Act or of a committee or an
association of producers described in section 10(b) of
the Agricultural Adjustment Act; and
(2) service under a nonappropriated fund
instrumentality of the Department of Defense or the
Coast Guard described in section 2105(c) by an employee
who has moved without a break in service of more than 3
days to a position subject to this subchapter in the
Department of Defense or the Coast Guard, respectively.
(b) The provisions of subsections (a) and (b) of section
6308 for transfer of leave between leave systems shall apply to
the leave systems established for such county office employees
and employees of such Department of Defense and Coast Guard
nonappropriated fund instrumentalities, respectively.
SUBCHAPTER II--OTHER PAID LEAVE
Sec. 6321. Absence of veterans to attend funeral services
An employee in or under an Executive agency who is a
veteran of a war, or of a campaign or expedition for which a
campaign badge has been authorized, or a member of an honor or
ceremonial group of an organization of those veterans, may be
excused from duty without loss of pay or deduction from annual
leave for the time necessary, not to exceed 4 hours in any one
day, to enable him to participate as an active pallbearer or as
a member of a firing squad or a guard of honor in a funeral
ceremony for a member of the armed forces whose remains are
returned from abroad for final interment in the United States.
Sec. 6322. Leave for jury or witness service; official duty status for
certain witness service
(a) An employee as defined by section 2105 of this title
(except an individual whose pay is disbursed by the Secretary
of the Senate or the Chief Administrative Officer of the House
of Representatives) or an individual employed by the government
of the District of Columbia is entitled to leave, without loss
of, or reduction in, pay, leave to which he otherwise is
entitled, credit for time or service, or performance of
efficiency rating, during a period of absence with respect to
which he is summoned, in connection with a judicial proceeding,
by a court or authority responsible for the conduct of that
proceeding, to serve--
(1) as a juror; or
(2) other than as provided in subsection (b) of
this section, as a witness on behalf of any party in
connection with any judicial proceeding to which the
United States, the District of Columbia, or a State or
local government is a party;
in the District of Columbia, a State, territory, or possession
of the United States including the Commonwealth of Puerto Rico
or the Trust Territory of the Pacific Islands. For the purpose
of this subsection, ``judicial proceeding'' means any action,
suit, or other judicial proceeding, including any condemnation,
preliminary, informational, or other proceeding of a judicial
nature, but does not include an administrative proceeding.
(b) An employee as defined by section 2105 of this title
(except an individual whose pay is disbursed by the Secretary
of the Senate or the Chief Administrative Officer of the House
of Representatives) or an individual employed by the government
of the District of Columbia is performing official duty during
the period with respect to which he is summoned, or assigned by
his agency, to--
(1) testify or produce official records on behalf
of the United States or the District of Columbia; or
(2) testify in his official capacity or produce
official records on behalf of a party other than the
United States or the District of Columbia.
(c) The Office of Personnel Management may prescribe
regulations for the administration of this section.
Sec. 6323. Military leave; Reserves and National Guardsmen
(a)(1) Subject to paragraph (2) of this subsection, an
employee as defined by section 2105 of this title or an
individual employed by the government of the District of
Columbia, permanent or temporary indefinite, is entitled to
leave without loss in pay, time, or performance or efficiency
rating for active duty, inactive-duty training (as defined in
section 101 of title 37), or engaging in field or coast defense
training under sections 502-505 of title 32 as a Reserve of the
armed forces or member of the National Guard. Leave under this
subsection accrues for an employee or individual at the rate of
15 days per fiscal year and, to the extent that it is not used
in a fiscal year, accumulates for use in the succeeding fiscal
year until it totals 15 days at the beginning of a fiscal year.
(2) In the case of an employee or individual employed on a
part-time career employment basis (as defined in section
3401(2) of this title), the rate at which leave accrues under
this subsection shall be a percentage of the rate prescribed
under paragraph (1) which is determined by dividing 40 into the
number of hours in the regularly scheduled workweek of that
employee or individual during that fiscal year.
(3) \1\ The minimum charge for leave under this
subsection is one hour, and additional charges are in
multiples thereof.
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\1\ Margin so in law.
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(b) Except as provided by section 5519 of this title, an
employee as defined by section 2105 of this title or an
individual employed by the government of the District of
Columbia, permanent or temporary indefinite, who--
(1) is a member of a Reserve component of the Armed
Forces, as described in section 10101 of title 10, or
the National Guard, as described in section 101 of
title 32; and
(2) performs, for the purpose of providing military
aid to enforce the law or for the purpose of providing
assistance to civil authorities in the protection or
saving of life or property or the prevention of
injury--
(A) Federal service under section 331, 332,
333, or 12406 of title 10, or other provision
of law, as applicable, or
(B) full-time military service for his
State, the District of Columbia, the
Commonwealth of Puerto Rico, or a territory of
the United States;
is entitled, during and because of such service, to leave
without loss of, or reduction in, pay, leave to which he
otherwise is entitled, credit for time or service, or
performance or efficiency rating. Leave granted by this
subsection shall not exceed 22 work-days in a calendar year.
Upon the request of an employee, the period for which an
employee is absent to perform service described in paragraph
(2) may be charged to the employee's accrued annual leave or to
compensatory time available to the employee instead of being
charged as leave to which the employee is entitled under this
subsection. The period of absence may not be charged to sick
leave.
(c) An employee as defined by section 2105 of this title or
an individual employed by the government of the District of
Columbia, who is a member of the National Guard of the District
of Columbia, is entitled to leave without loss in pay or time
for each day of a parade or encampment ordered or authorized
under title 39, District of Columbia Code. This subsection
covers each day of service the National Guard, or a portion
thereof, is ordered to perform by the commanding general.
(d)(1) A military reserve technician described in section
8401(30) is entitled at such person's request to leave without
loss of, or reduction in, pay, leave to which such person is
otherwise entitled, credit for time or service, or performance
or efficiency rating for each day, not to exceed 44 workdays in
a calendar year, in which such person is on active duty without
pay, as authorized pursuant to section 12315 of title 10, under
section 12301(b) or 12301(d) of title 10 (other than active
duty during a war or national emergency declared by the
President or Congress) for participation in operations outside
the United States, its territories and possessions.
(2) An employee who requests annual leave or compensatory
time to which the employee is otherwise entitled, for a period
during which the employee would have been entitled upon request
to leave under this subsection, may be granted such annual
leave or compensatory time without regard to this section or
section 5519.
Sec. 6324. Absence of certain police and firemen
(a) Sick leave may not be charged to the account of a
member of the Metropolitan Police force or the Fire Department
of the District of Columbia, the United States Park Police
force, or the Executive Protective Service force for an absence
due to injury or illness resulting from the performance of
duty.
(b) The determination of whether an injury or illness
resulted from the performance of duty shall be made under
regulations prescribed by--
(1) the District of Columbia Council for members of
the Metropolitan Police force and the Fire Department
of the District of Columbia;
(2) the Secretary of the Interior for the United
States Park Police force; and
(3) The Secretary of the Treasury for the Executive
Protective Service force.
Sec. 6325. Absence resulting from hostile action abroad
Leave may not be charged to the account of an employee for
absence, not to exceed one year, due to an injury--
(1) incurred while serving abroad and resulting
from war, insurgency, mob violence, or similar hostile
action; and
(2) not due to vicious habits, intemperance, or
willful misconduct on the part of the employee.
The preceding provisions of this section shall apply in the
case of an alien employee referred to in section 6301(2)(viii)
of this title with respect to any leave granted to such alien
employee under section 6310 of this title or section 408 of the
Foreign Service Act of 1980.
Sec. 6326. Absence in connection with funerals of immediate relatives
in the Armed Forces
(a) An employee of an executive agency or an individual
employed by the government of the District of Columbia is
entitled to not more than three days of leave without loss of,
or reduction in, pay, leave to which he is otherwise entitled,
credit for time or service, or performance or efficiency
rating, to make arrangements for, or attend the funeral of, or
memorial service for, an immediate relative who died as a
result of wounds, disease, or injury incurred while serving as
a member of the Armed Forces in a combat zone (as determined by
the President in accordance with section 112 of the Internal
Revenue Code).
(b) The Office of Personnel Management is authorized to
issue regulations for the administration of this section.
(c) This section shall not be considered as affecting the
authority of an Executive agency, except to the extent and
under the conditions covered under this section, to grant
administrative leave excusing an employee from work when it is
in the public interest.
Sec. 6327. Absence in connection with serving as a bone-marrow or organ
donor
(a) An employee in or under an Executive agency is entitled
to leave without loss of or reduction in pay, leave to which
otherwise entitled, credit for time or service, or performance
or efficiency rating, for the time necessary to permit such
employee to serve as a bone-marrow or organ donor.
(b) An employee may, in any calendar year, use--
(1) not to exceed 7 days of leave under this
section to serve as a bone-marrow donor; and
(2) not to exceed 30 days of leave under this
section to serve as an organ donor.
(c) The Office of Personnel Management may prescribe
regulations for the administration of this section.
Sec. 6328. Absence in connection with funerals of fellow Federal law
enforcement officers
A Federal law enforcement officer or a Federal firefighter
may be excused from duty without loss of, or reduction in, pay
or leave to which such officer is otherwise entitled, or credit
for time or service, or performance or efficiency rating, to
attend the funeral of a fellow Federal law enforcement officer
or Federal firefighter, who was killed in the line of duty.
When so excused from duty, attendance at such service shall for
the purposes of section 1345(a) of title 31, be considered to
be an official duty of the officer or firefighter.
SUBCHAPTER III--VOLUNTARY TRANSFERS OF LEAVE
Sec. 6331. Definitions
For the purpose of this subchapter--
(1) the term ``employee'' means an employee as
defined by section 6301(2), excluding an individual
employed by the government of the District of Columbia;
(2) the term ``leave recipient'' means an employee
whose application to receive donations of leave under
this subchapter is approved;
(3) the term ``leave donor'' means an employee
whose application to make 1 or more donations of leave
under this subchapter is approved; and
(4) the term ``medical emergency'' means a medical
condition of an employee or a family member of such
employee that is likely to require the prolonged
absence of such employee from duty and to result in a
substantial loss of income to such employee because of
the unavailability of paid leave (disregarding any
advanced leave).
Sec. 6332. General authority
Notwithstanding any provision of subchapter I, and subject
to the provisions of this subchapter, the Office of Personnel
Management shall establish a program under which annual leave
accrued or accumulated by an employee may be transferred to the
annual leave account of any other employee if such other
employee requires additional leave because of a medical
emergency.
Sec. 6333. Receipt and use of transferred leave
(a)(1) An application to receive donations of leave under
this subchapter, whether submitted by or on behalf of an
employee--
(A) shall be submitted to the employing agency of
the proposed leave recipient; and
(B) shall include--
(i) the name, position title, and grade or
pay level of the proposed leave recipient;
(ii) the reasons why transferred leave is
needed, including a brief description of the
nature, severity, anticipated duration, and, if
it is a recurring one, the approximate
frequency of the medical emergency involved;
(iii) if the employing agency so requires,
certification from 1 or more physicians, or
other appropriate experts, with respect to any
matter under clause (ii); and
(iv) any other information which the
employing agency may reasonably require.
(2) If an agency requires that an employee obtain
certification under paragraph (1)(B)(iii) from 2 or more
sources, the agency shall ensure, either by direct payment to
the expert involved or by reimbursement, that the employee is
not required to pay for the expenses associated with obtaining
certification from more than 1 of such sources.
(3) An employing agency shall approve or disapprove an
application of a proposed leave recipient for leave under this
subchapter, and, to the extent practicable, shall notify the
proposed leave recipient (or other person acting on behalf of
the proposed recipient, if appropriate) of the decision of the
agency, in writing, within 10 days (excluding Saturdays,
Sundays, and legal public holidays) after receiving such
application.
(b) A leave recipient may use annual leave received under
this subchapter in the same manner and for the same purposes as
if such leave recipient had accrued that leave under section
6303, except that any annual leave, and any sick leave, accrued
or accumulated by the leave recipient and available for the
purpose involved must be exhausted before any transferred
annual leave may be used.
(c) Transferred annual leave--
(1) may accumulate without regard to any limitation
under section 6304; and
(2) may be substituted retroactively for any period
of leave without pay, or used to liquidate an
indebtedness for any period of advanced leave, which
began on or after a date fixed by the employing agency
of the employee as the beginning of the medical
emergency involved.
Sec. 6334. Donations of leave
(a) An employee may, by written application to the
employing agency of such employee, request that a specified
number of hours be transferred from the annual leave account of
such employee to the annual leave account of a leave recipient
in accordance with section 6332.
(b)(1) In any one leave year, a leave donor may donate no
more than a total of one-half of the amount of annual leave
such donor would be entitled to accrue during the leave year in
which the donation is made.
(2) A leave donor who is projected to have annual leave
that otherwise would be subject to forfeiture at the end of the
leave year under section 6304(a) may donate no more than the
number of hours remaining in the leave year (as of the date of
the transfer) for which the leave donor is scheduled to work
and receive pay.
(3) The employing agency of a leave donor may waive the
limitation under paragraphs (1) and (2). Any such waiver shall
be made in writing.
(c) The Office of Personnel Management shall prescribe
regulations to include procedures to carry out this subchapter
when the leave donor and the leave recipient are employed by
different agencies.
Sec. 6335. Termination of medical emergency
(a) The medical emergency affecting a leave recipient
shall, for purposes of this subchapter, be considered to have
terminated on the date as of which--
(1) the leave recipient notifies the employing
agency of such leave recipient, in writing, that the
medical emergency no longer exists;
(2) the employing agency of such leave recipient
determines, after written notice and opportunity for
the leave recipient (or, if appropriate, another person
acting on behalf of the leave recipient) to answer
orally or in writing, that the medical emergency no
longer exists; or
(3) the leave recipient is separated from service.
(b)(1) The employing agency of a leave recipient shall,
consistent with guidelines prescribed by the Office of
Personnel Management, establish procedures to ensure that a
leave recipient is not permitted to use or receive any
transferred leave under this subchapter after the medical
emergency terminates.
(2) Nothing in section 5551, 5552, or 6306 shall apply with
respect to any annual leave transferred to a leave recipient
under this subchapter.
Sec. 6336. Restoration of transferred leave
(a)(1) The Office of Personnel Management shall establish
procedures under which, except as provided in paragraph (2),
any transferred leave remaining to the credit of a leave
recipient when the medical emergency affecting the leave
recipient terminates shall be restored on a prorated basis by
transfer to the appropriate accounts of the respective leave
donors.
(2) Nothing in paragraph (1) shall require the restoration
of leave to a leave donor--
(A) if the amount of leave which would be restored
to such donor would be less than 1 hour or any other
shorter period of time which the Office may by
regulation prescribe;
(B) if such donor retires, dies, or is otherwise
separated from service, before the date on which such
restoration would otherwise be made; or
(C) if such restoration is not administratively
feasible, as determined under regulations prescribed by
the Office.
(b) At the election of the leave donor, transferred annual
leave restored to such leave donor under subsection (a) may be
restored by--
(1) crediting such leave to the leave donor's
annual leave account in the then current leave year;
(2) crediting such leave to the leave donor's
annual leave account, effective as of the first day of
the first leave year beginning after the date of the
election; or
(3) donating such leave in whole or part to another
leave recipient; if a leave donor elects to donate only
part of restored leave to another recipient, the donor
may elect to have the remaining leave credited to the
donor's annual leave account in accordance with
paragraph (1) or (2).
(c) The Office shall prescribe regulations under which this
section shall be applied in the case of an employee who is paid
other than on the basis of biweekly pay periods.
(d) Restorations of leave under this section shall be
carried out in a manner consistent with regulations prescribed
to carry out section 6334(c), if applicable.
Sec. 6337. Accrual of leave
(a) For the purpose of this section--
(1) the term ``paid leave status under subchapter
I'', as used with respect to an employee, means the
administrative status of such employee while such
employee is using sick leave, or annual leave, accrued
or accumulated under subchapter I; and
(2) the term ``transferred leave status'', as used
with respect to an employee, means the administrative
status of such employee while such employee is using
transferred leave under this subchapter.
(b)(1) Except as otherwise provided in this section, while
an employee is in transferred leave status, annual leave and
sick leave shall accrue to the credit of such employee at the
same rate as if such employee were then in a paid leave status
under subchapter I, except that--
(A) the maximum amount of annual leave which may be
accrued by an employee while in transferred leave
status in connection with any particular medical
emergency may not exceed 5 days; and
(B) the maximum amount of sick leave which may be
accrued by an employee while in transferred leave
status in connection with any particular medical
emergency may not exceed 5 days.
(2) Any annual or sick leave accrued by an employee under
this section--
(A) shall be credited to an annual leave or sick
leave account, as appropriate, separate from any leave
account of such employee under subchapter I; and
(B) shall not become available for use by such
employee, and may not otherwise be taken into account
under subchapter I, until, in accordance with
subsection (c), it is transferred to the appropriate
leave account of such employee under subchapter I.
(c)(1) Any annual or sick leave accrued by an employee
under this section shall be transferred to the appropriate
leave account of such employee under subchapter I, and shall be
available for use--
(A) as of the beginning of the first applicable pay
period beginning after the date on which the employee's
medical emergency terminates as described in paragraph
(1) or (2) of section 6335(a); or
(B) if the employee's medical emergency has not yet
terminated, once the employee has exhausted all
transferred leave made available to such employee under
this subchapter.
(2) In the event that the employee's medical emergency
terminates as described in section 6335(a)(3)--
(A) any leave accrued but not yet transferred under
this section shall not be credited to such employee; or
(B) if there remains, as of the date the emergency
so terminates, any leave which became available to such
employee under paragraph (1)(B), such leave shall cease
to be available for any purpose.
(d) Nothing in this section shall be considered to prevent,
with respect to a continuing medical emergency, further
transfers of leave for use after leave accrued under this
section has been exhausted by the employee.
Sec. 6338. Prohibition of coercion
(a) An employee may not directly or indirectly intimidate,
threaten, or coerce, or attempt to intimidate, threaten, or
coerce, any other employee for the purpose of interfering with
any right which such employee may have with respect to
contributing, receiving, or using annual leave under this
subchapter.
(b) For the purpose of subsection (a), the term
``intimidate, threaten, or coerce'' includes promising to
confer or conferring any benefit (such as appointment,
promotion, or compensation), or effecting or threatening to
effect any reprisal (such as deprivation of appointment,
promotion, or compensation).
Sec. 6339. Additional leave transfer programs
(a) For the purpose of this section--
(1) the term ``excepted agency'' means--
(A) the Central Intelligence Agency.
(B) the Defense Intelligence Agency;
(C) the National Security Agency;
(D) the Federal Bureau of Investigation;
(E) the National Imagery and Mapping
Agency; and
(F) as determined by the President, any
Executive agency or unit thereof, the principal
function of which is the conduct of foreign
intelligence or counterintelligence activities;
and
(2) the term ``head of an excepted agency'' means--
(A) with respect to the Central
Intelligence Agency, the Director of Central
Intelligence;
(B) with respect to the Defense
Intelligence Agency, the Director of the
Defense Intelligence Agency;
(C) with respect to the National Security
Agency, the Director of the National Security
Agency;
(D) with respect to the Federal Bureau of
Investigation, the Director of the Federal
Bureau of Investigation;
(E) with respect to the National Imagery
and Mapping Agency, the Director of the
National Imagery and Mapping Agency; and
(F) with respect to an Executive agency
designated under paragraph (1)(F), the head of
such Executive agency, and with respect to a
unit of an Executive agency designated under
paragraph (1)(F), such individual as the
President may determine.
(b) Notwithstanding any other provision of this subchapter,
neither an excepted agency nor any individual employed in or
under an excepted agency may be included in a leave transfer
program established under any of the preceding provisions of
this subchapter.
(c)(1) The head of an excepted agency shall, by regulation,
establish a program under which annual leave accrued or
accumulated by an employee of such agency may be transferred to
the annual leave account of any other employee of such agency
if such other employee requires additional leave because of a
medical emergency.
(2) To the extent practicable, and consistent with the
protection of intelligence sources and methods (if applicable),
each program under this section shall be established--
(A) in a manner consistent with the provisions of
this subchapter applicable to the program; and
(B) without regard to any provisions relating to
transfers or restorations of leave between employees in
different agencies.
(d) The Office of Personnel Management shall provide the
head of an excepted agency with such advice and assistance as
the head of such agency may request in order to carry out the
purposes of this section.
Sec. 6340. Inapplicability of certain provisions
Except to the extent that the Office of Personnel
Management may prescribe regulations, nothing in section 7351
shall apply with respect to a solicitation, donation, or
acceptance of leave under this subchapter.
SUBCHAPTER IV--VOLUNTARY LEAVE BANK PROGRAM
Sec. 6361. Definitions
For the purpose of this subchapter the term--
(1) ``employee'' means an employee as defined by
section 6301(2), but shall exclude any individual
employed by the government of the District of Columbia;
(2) ``executive agency'' means any executive agency
or any administrative unit thereof;
(3) ``leave bank'' means a leave bank established
under section 6363;
(4) ``leave contributor'' means an employee who
contributes leave to an agency leave bank under section
6365;
(5) ``leave recipient'' means an employee whose
application under section 6367 to receive contributions
of leave from a leave bank is approved; and
(6) ``medical emergency'' means a medical condition
of an employee or a family member of such employee that
is likely to require the prolonged absence of such
employee from duty and to result in a substantial loss
of income to such employee because of the
unavailability of paid leave (disregarding any advanced
leave).
Sec. 6362. General authority
Notwithstanding any provision of subchapter I, and subject
to the provisions of this subchapter, the Office of Personnel
Management shall establish a program under which--
(1) annual leave accrued or accumulated by an
employee may be contributed to a leave bank established
by the employing agency of such employee; and
(2) leave from such a leave bank may be made
available to an employee who requires such leave
because of a medical emergency.
Sec. 6363. Establishment of leave banks
Each agency that establishes a leave bank program under
section 6362 shall establish 1 or more leave banks in
accordance with regulations prescribed by the Office of
Personnel Management.
Sec. 6364. Establishment of Leave Bank Boards
(a)(1) Each agency that establishes a leave bank shall
establish a Leave Bank Board consisting of 3 members, at least
one of whom shall represent a labor organization or employee
group, to administer the leave bank under the provisions of
this subchapter, in consultation with the Office of Personnel
Management.
(2) An agency may establish more than 1 Leave Bank Board
based upon the administrative units within the agency. No more
than 1 board may be established for each leave bank.
(b) Each such Board shall--
(1) review and approve applications to the leave
bank under section 6367;
(2) monitor each case of a leave recipient;
(3) monitor the amount of leave in the leave bank
and the number of applications for use of leave from
the bank; and
(4) maintain an adequate amount of leave in the
leave bank to the greatest extent practicable.
Sec. 6365. Contributions of annual leave
(a)(1) An employee may, by written application to the Leave
Bank Board, request that a specified number of hours be
transferred from the annual leave account of such employee to
the leave bank established by such agency.
(2) An employee may state a concern and desire to aid a
specified proposed leave recipient or a leave recipient in the
application filed under paragraph (1).
(b)(1) Upon approving an application under subsection (a),
the employing agency of the leave contributor may transfer all
or any part of the number of hours requested for transfer,
except that the number of hours so transferred may not exceed
the limitations under paragraph (2).
(2)(A) In any one leave year, a leave contributor may
contribute no more than a total of one-half of the amount of
annual leave such contributor would be entitled to accrue
during the leave year in which the contribution is made.
(B) A leave contributor who is projected to have annual
leave that otherwise would be subject to forfeiture at the end
of the leave year under section 6304(a) may contribute no more
than the number of hours remaining in the leave year (as of the
date of the contribution) for which the leave contributor is
scheduled to work and receive pay.
(c) The Leave Bank Board of a leave contributor may waive
the limitations under subsection (b)(2). Any such waiver shall
be in writing.
(d) The Office of Personnel Management shall prescribe
regulations establishing an open enrollment period during which
an employee may contribute leave under subsection (a) for a
leave year.
Sec. 6366. Eligibility for leave recipients
(a) An employee is eligible to be a leave recipient if such
em- ployee--
(1) experiences a medical emergency and submits an
application pursuant to section 6367(a); and
(2)(A) contributes the minimum number of hours as
required under subsection (b) of accrued or accumulated
annual leave to the leave bank of the employing agency
of such employee, in the leave year (beginning in and
including any part of a leave year in which such leave
bank is established) that such employee submits an
application to be a leave recipient under section
6367(a); and
(B) such contribution is made before such employee
submits an application under section 6367(a).
(b)(1) An employee shall contribute the minimum number of
hours required under subsection (a)(2)(A), if such employee is
an employee--
(A) for less than 3 years of service and
contributes a minimum of 4 hours;
(B) for between 3 years and less than 15
years of service and contributes a minimum of 6
hours; or
(C) for 15 years or more of service and
contributes a minimum of 8 hours.
(2) Notwithstanding the provisions of paragraph (1), the
Leave Bank Board of an agency, after consultation with the
Office of Personnel Management, may--
(A) reduce the minimum number of hours
required under paragraph (1) for any leave
year, if such Board determines there is a
surplus of leave in the leave bank; and
(B) increase the number of minimum hours
required under paragraph (1) for the succeeding
leave year, in any leave year in which the
Board determines there is a shortage of leave
in the leave bank.
(c) An employee shall meet the requirements of subsection
(a)(2)(A) if such employee contributes the minimum number of
hours as required under subsection (b) of accrued or
accumulated annual leave to the leave bank with which such
employee submits an application to be a leave recipient under
section 6367(a).
(d) The provisions of subsection (a) may not be construed
to limit the amount of the voluntary contribution of annual
leave to a leave bank, which does not exceed the limitations of
section 6365(b).
Sec. 6367. Receipt and use of leave from a leave bank
(a) An application to receive contributions of leave from a
leave bank, whether submitted by or on behalf of an employee--
(1) shall be submitted to the Leave Bank Board of
the employing agency of the proposed leave recipient;
and
(2) shall include--
(A) the name, position title, and grade or
pay level of the proposed leave recipient;
(B) the reasons why leave is needed,
including a brief description of the nature,
severity, anticipated duration, and, if it is a
recurring one, the approximate frequency of the
medical emergency involved;
(C) if such Board so requires,
certification from 1 or more physicians, or
other appropriate experts, with respect to any
matter under subparagraph (B); and
(D) any other information which such Board
may reasonably require.
If a Board requires that an employee obtain
certification under paragraph (2)(C) from 2 or more
sources, the agency shall ensure, either by direct
payment to the expert involved or by reimbursement,
that the employee is not required to pay for the
expenses associated with obtaining certification from
more than 1 of such sources.
(b) The Leave Bank Board of an employing agency may approve
an application submitted under subsection (a).
(c) A leave recipient may use annual leave received from
the leave bank established by the employing agency of such
employee under this subchapter in the same manner and for the
same purposes as if such leave recipient had accrued such leave
under section 6303, except that any annual leave and, if
applicable, any sick leave accrued or accumulated to the leave
recipient shall be used before any leave from the leave bank
may be used.
(d) Transferred annual leave--
(1) may accumulate without regard to any limitation
under section 6304; and
(2) may be substituted retroactively for any period
of leave without pay, or used to liquidate an
indebtedness for any period of advanced leave, which
began on or after a date fixed by the employing agency
of the employee as the beginning of the medical
emergency involved.
(e) Except to the extent that the Office of Personnel
Management may prescribe regulations, nothing in the provisions
of section 7351 shall apply to any solicitation, contribution,
or use of leave to or from a leave bank under this subchapter.
Sec. 6368. Termination of medical emergency
(a) The medical emergency affecting a leave recipient
shall, for purposes of this subchapter, be considered to have
terminated on the date as of which--
(1) the leave recipient notifies the Leave Bank
Board in writing that the medical emergency no longer
exists;
(2) the Leave Bank Board of such leave recipient
determines after written notice and opportunity for the
leave recipient (or, if appropriate, another person
acting on behalf of the leave recipient) to answer
orally or in writing, that the medical emergency no
longer exists; or
(3) the leave recipient is separated from service.
(b)(1) The Leave Bank Board of a recipient shall,
consistent with guidelines prescribed by the Office of
Personnel Management, establish procedures to ensure that a
leave recipient is not permitted to use or receive any
transferred leave under this subchapter after the medical
emergency terminates.
(2) Nothing in section 5551, 5552, or 6306 shall apply with
respect to any annual leave transferred to a leave recipient
under this subchapter.
Sec. 6369. Restoration of transferred leave
The Office of Personnel Management shall establish
procedures under which any transferred leave remaining to the
credit of a leave recipient when the medical emergency
affecting the leave recipient terminates, shall be restored to
the leave bank.
Sec. 6370. Prohibition of coercion
(a) An employee may not directly or indirectly intimidate,
threaten, or coerce, or attempt to intimidate, threaten, or
coerce, any other employee for the purpose of interfering with
any right which such employee may have with respect to
contributing, receiving, or using annual leave under this
subchapter.
(b) For the purpose of subsection (a), the term
``intimidate, threaten, or coerce'' includes promising to
confer or conferring any benefit (such as an appointment,
promotion, or compensation), or effecting or threatening to
effect any reprisal (such as deprivation of appointment,
promotion, or compensation).
Sec. 6371. Accrual of leave
While using leave made available to an employee from a
leave bank, annual and sick leave shall accrue to the credit of
such employee and shall become available for use by such
employee in the same manner as provided for under section 6337.
Sec. 6372. Additional leave bank programs
(a) For the purpose of this section--
(1) the term ``excepted agency'' has the same
meaning as such term is defined under section
6339(a)(1) of this title; and
(2) the term ``head of an excepted agency'' has the
same meaning as such term is defined under section
6339(a)(2) of this title.
(b) Notwithstanding any other provision of this subchapter,
neither an excepted agency nor any individual employed in or
under an excepted agency may be included in a leave bank
program established under any of the preceding provisions of
this subchapter.
(c)(1) The head of an excepted agency may, by regulation,
establish a voluntary leave bank program under which annual
leave accrued or accumulated by an employee of such agency may
be contributed to a leave bank, and any other employee of such
agency may receive additional leave from such leave bank
because of a medical emergency.
(2) To the extent practicable, and consistent with the
protection of intelligence sources and methods (if applicable),
each program under this section shall be established in a
manner consistent with the provisions of this subchapter
applicable to the program.
(d) The Office of Personnel Management shall provide the
head of an excepted agency with such advice and assistance as
the head of such agency may request in order to carry out the
purpose of this section.
Sec. 6373. Authority to participate in both programs
(a) The Office of Personnel Management shall prescribe
regulations under which an employee participating in a leave
bank program under this subchapter may, subject to such terms
or conditions as the Office may establish, also make or receive
donations of leave under subchapter III.
(b) Notwithstanding any provision of section 6337 or 6371,
if an employee uses leave transferred to such employee under
subchapter III and leave made available to such employee under
this subchapter in connection with the same medical emergency,
the maximum number of days of annual leave and sick leave,
respectively, which may accrue to such employee in connection
with such medical emergency shall be the same as if all of that
leave had been made available to such employee under this
subchapter.
SUBCHAPTER V--FAMILY AND MEDICAL LEAVE
Sec. 6381. Definitions
For the purpose of this subchapter--
(1) the term ``employee'' means any individual
who--
(A) is an ``employee'', as defined by
section 6301(2), including any individual
employed in a position referred to in clause
(v) or (ix) of section 6301(2), but excluding
any individual employed by the government of
the District of Columbia \1\ any individual
employed on a temporary or intermittent basis,
and any employee of the General Accounting
Office or the Library of Congress \1\; and
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\1\ Section 202(c)(2) of the Congressional Accountability Act of
1995 (Public Law 104-1) amended section 6381(1)(A) by striking ``and''
after ``District of Columbia'' and inserting before the semicolon the
following: ``, and any employee of the General Accounting Office or the
Library of Congress''.
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(B) has completed at least 12 months of
service as an employee (within the meaning of
subparagraph (A));
(2) the term ``health care provider'' means--
(A) a doctor of medicine or osteopathy who
is authorized to practice medicine or surgery
(as appropriate) by the State in which the
doctor practices; and
(B) any other person determined by the
Director of the Office of Personnel Management
to be capable of providing health care
services;
(3) the term ``parent'' means the biological parent
of an employee or an individual who stood in loco
parentis to an employee when the employee was a son or
daughter;
(4) the term ``reduced leave schedule'' means a
leave schedule that reduces the usual number of hours
per workweek, or hours per workday, of an employee;
(5) the term ``serious health condition'' means an
illness, injury, impairment, or physical or mental
condition that involves--
(A) inpatient care in a hospital, hospice,
or residential medical care facility; or
(B) continuing treatment by a health care
provider; and
(6) the term ``son or daughter'' means a
biological, adopted, or foster child, a stepchild, a
legal ward, or a child of a person standing in loco
parentis, who is--
(A) under 18 years of age; or
(B) 18 years of age or older and incapable
of self-care because of a mental or physical
disability.
Sec. 6382. Leave requirement
(a)(1) Subject to section 6383, an employee shall be
entitled to a total of 12 administrative workweeks of leave
during any 12-month period for one or more of the following:
(A) Because of the birth of a son or daughter of
the employee and in order to care for such son or
daughter.
(B) Because of the placement of a son or daughter
with the employee for adoption or foster care.
(C) In order to care for the spouse, or a son,
daughter, or parent, of the employee, if such spouse,
son, daughter, or parent has a serious health
condition.
(D) Because of a serious health condition that
makes the employee unable to perform the functions of
the employee's position.
(2) The entitlement to leave under subparagraph (A) or (B)
of paragraph (1) based on the birth or placement of a son or
daughter shall expire at the end of the 12-month period
beginning on the date of such birth or placement.
(b)(1) Leave under subparagraph (A) or (B) of subsection
(a)(1) shall not be taken by an employee intermittently or on a
reduced leave schedule unless the employee and the employing
agency of the employee agree otherwise. Subject to paragraph
(2), subsection (e)(2), and section 6383(b)(5), leave under
subparagraph (C) or (D) of subsection (a)(1) may be taken
intermittently or on a reduced leave schedule when medically
necessary. In the case of an employee who takes leave
intermittently or on a reduced leave schedule pursuant to this
paragraph, any hours of leave so taken by such employee shall
be subtracted from the total amount of leave remaining
available to such employee under subsection (a), for purposes
of the 12-month period involved, on an hour-for-hour basis.
(2) If an employee requests intermittent leave, or leave on
a reduced leave schedule, under subparagraph (C) or (D) of
subsection (a)(1), that is foreseeable based on planned medical
treatment, the employing agency may require such employee to
transfer temporarily to an available alternative position
offered by the employing agency for which the employee is
qualified and that--
(A) has equivalent pay and benefits; and
(B) better accommodates recurring periods of leave
than the regular employment position of the employee.
(c) Except as provided in subsection (d), leave granted
under subsection (a) shall be leave without pay.
(d) An employee may elect to substitute for leave under
subparagraph (A), (B), (C), or (D) of subsection (a)(1) any of
the employee's accrued or accumulated annual or sick leave
under subchapter I for any part of the 12-week period of leave
under such subsection, except that nothing in this subchapter
shall require an employing agency to provide paid sick leave in
any situation in which such employing agency would not normally
provide any such paid leave.
(e)(1) In any case in which the necessity for leave under
subparagraph (A) or (B) of subsection (a)(1) is foreseeable
based on an expected birth or placement, the employee shall
provide the employing agency with not less than 30 days'
notice, before the date the leave is to begin, of the
employee's intention to take leave under such subparagraph,
except that if the date of the birth or placement requires
leave to begin in less than 30 days, the employee shall provide
such notice as is practicable.
(2) In any case in which the necessity for leave under
subparagraph (C) or (D) of subsection (a)(1) is foreseeable
based on planned medical treatment, the employee--
(A) shall make a reasonable effort to schedule the
treatment so as not to disrupt unduly the operations of
the employing agency, subject to the approval of the
health care provider of the employee or the health care
provider of the son, daughter, spouse, or parent of the
employee, as appropriate; and
(B) shall provide the employing agency with not
less than 30 days' notice, before the date the leave is
to begin, of the employee's intention to take leave
under such subparagraph, except that if the date of the
treatment requires leave to begin in less than 30 days,
the employee shall provide such notice as is
practicable.
Sec. 6383. Certification
(a) An employing agency may require that a request for
leave under subparagraph (C) or (D) of section 6382(a)(1) be
supported by certification issued by the health care provider
of the employee or of the son, daughter, spouse, or parent of
the employee, as appropriate. The employee shall provide, in a
timely manner, a copy of such certification to the employing
agency.
(b) A certification provided under subsection (a) shall be
sufficient if it states--
(1) the date on which the serious health condition
commenced;
(2) the probable duration of the condition;
(3) the appropriate medical facts within the
knowledge of the health care provider regarding the
condition;
(4)(A) for purposes of leave under section
6382(a)(1)(C), a statement that the employee is needed
to care for the son, daughter, spouse, or parent, and
an estimate of the amount of time that such employee is
needed to care for such son, daughter, spouse, or
parent; and
(B) for purposes of leave under section
6382(a)(1)(D), a statement that the employee is unable
to perform the functions of the position of the
employee; and
(5) in the case of certification for intermittent
leave, or leave on a reduced leave schedule, for
planned medical treatment, the dates on which such
treatment is expected to be given and the duration of
such treatment.
(c)(1) In any case in which the employing agency has reason
to doubt the validity of the certification provided under
subsection (a) for leave under subparagraph (C) or (D) of
section 6382(a)(1), the employing agency may require, at the
expense of the agency, that the employee obtain the opinion of
a second health care provider designated or approved by the
employing agency concerning any information certified under
subsection (b) for such leave.
(2) Any health care provider designated or approved under
paragraph (1) shall not be employed on a regular basis by the
employing agency.
(d)(1) In any case in which the second opinion described in
subsection (c) differs from the original certification provided
under subsection (a), the employing agency may require, at the
expense of the agency, that the employee obtain the opinion of
a third health care provider designated or approved jointly by
the employing agency and the employee concerning the
information certified under subsection (b).
(2) The opinion of the third health care provider
concerning the information certified under subsection (b) shall
be considered to be final and shall be binding on the employing
agency and the employee.
(e) The employing agency may require, at the expense of the
agency, that the employee obtain subsequent recertifications on
a reasonable basis.
Sec. 6384. Employment and benefits protection
(a) Any employee who takes leave under section 6382 for the
intended purpose of the leave shall be entitled, upon return
from such leave--
(1) to be restored by the employing agency to the
position held by the employee when the leave commenced;
or
(2) to be restored to an equivalent position with
equivalent benefits, pay, status, and other terms and
conditions of employment.
(b) The taking of leave under section 6382 shall not result
in the loss of any employment benefit accrued prior to the date
on which the leave commenced.
(c) Except as otherwise provided by or under law, nothing
in this section shall be construed to entitle any restored
employee to--
(1) the accrual of any employment benefits during
any period of leave; or
(2) any right, benefit, or position of employment
other than any right, benefit, or position to which the
employee would have been entitled had the employee not
taken the leave.
(d) As a condition to restoration under subsection (a) for
an employee who takes leave under section 6382(a)(1)(D), the
employing agency may have a uniformly applied practice or
policy that requires each such employee to receive
certification from the health care provider of the employee
that the employee is able to resume work.
(e) Nothing in this section shall be construed to prohibit
an employing agency from requiring an employee on leave under
section 6382 to report periodically to the employing agency on
the status and intention of the employee to return to work.
Sec. 6385. Prohibition of coercion
(a) An employee shall not directly or indirectly
intimidate, threaten, or coerce, or attempt to intimidate,
threaten, or coerce, any other employee for the purpose of
interfering with the exercise of any rights which such other
employee may have under this subchapter.
(b) For the purpose of this section--
(1) the term ``intimidate, threaten, or coerce''
includes promising to confer or conferring any benefit
(such as appointment, promotion, or compensation), or
taking or threatening to take any reprisal (such as
deprivation of appointment, promotion, or
compensation); and
(2) the term ``employee'' means any ``employee'',
as defined by section 2105.
Sec. 6386. Health insurance
An employee enrolled in a health benefits plan under
chapter 89 who is placed in a leave status under section 6382
may elect to continue the health benefits enrollment of the
employee while in such leave status and arrange to pay
currently into the Employees Health Benefits Fund (described in
section 8909), the appropriate employee contributions.
Sec. 6387. Regulations
The Office of Personnel Management shall prescribe
regulations necessary for the administration of this
subchapter. The regulations prescribed under this subchapter
shall, to the extent appropriate, be consistent with the
regulations prescribed by the Secretary of Labor to carry out
title I of the Family and Medical Leave Act of 1993.
SUBCHAPTER VI--LEAVE TRANSFER IN DISASTERS AND EMERGENCIES
Sec. 6391. Authority for leave transfer program in disasters and
emergencies
(a) For the purpose of this section--
(1) ``employee'' means an employee as defined in
section 6331(1); and
(2) ``agency'' means an Executive agency.
(b) In the event of a major disaster or emergency, as
declared by the President, that results in severe adverse
effects for a substantial number of employees, the President
may direct the Office of Personnel Management to establish an
emergency leave transfer program under which any employee in
any agency may donate unused annual leave for transfer to
employees of the same or other agencies who are adversely
affected by such disaster or emergency.
(c) The Office shall establish appropriate requirements for
the operation of the emergency leave transfer program under
subsection (b), including appropriate limitations on the
donation and use of annual leave under the program. An employee
may receive and use leave under the program without regard to
any requirement that any annual leave and sick leave to a leave
recipient's credit must be exhausted before any transferred
annual leave may be used.
(d) A leave bank established under subchapter IV may, to
the extent provided in regulations prescribed by the Office,
donate annual leave to the emergency leave transfer program
established under subsection (b).
(e) Except to the extent that the Office may prescribe by
regulation, nothing in section 7351 shall apply to any
solicitation, donation, or acceptance of leave under this
section.
(f) The Office shall prescribe regulations necessary for
the administration of this section.
Subpart F--Labor-Management and Employee Relations
CHAPTER 71--LABOR-MANAGEMENT RELATIONS
SUBCHAPTER I--GENERAL PROVISIONS
Sec.
7101. Findings and purpose.
7102. Employees' rights.
7103. Definitions; application.
7104. Federal Labor Relations Authority.
7105. Powers and duties of the Authority.
7106. Management rights.
SUBCHAPTER II--RIGHTS AND DUTIES OF AGENCIES AND LABOR ORGANIZATIONS
7111. Exclusive recognition of labor organizations.
7112. Determination of appropriate units for labor organization
representation.
7113. National consultation rights.
7114. Representation rights and duties.
7115. Allotments to representatives.
7116. Unfair labor practices.
7117. Duty to bargain in good faith; compelling need; duty to
consult.
7118. Prevention of unfair labor practices.
7119. Negotiation impasses; Federal Service Impasses Panel.
7120. Standards of conduct for labor organizations.
SUBCHAPTER III--GRIEVANCES, APPEALS, AND REVIEW
7121. Grievance procedures.
7122. Exceptions to arbitral awards.
7123. Judicial review; enforcement.
SUBCHAPTER IV--ADMINISTRATIVE AND OTHER PROVISIONS
7131. Official time.
7132. Subpenas.
7133. Compilation and publication of data.
7134. Regulations.
7135. Continuation of existing laws, recognitions, agreements, and
procedures.
SUBCHAPTER I--GENERAL PROVISIONS
Sec. 7101. Findings and purpose
(a) The Congress finds that--
(1) experience in both private and public
employment indicates that the statutory protection of
the right of employees to organize, bargain
collectively, and participate through labor
organizations of their own choosing in decisions which
affect them--
(A) safeguards the public interest,
(B) contributes to the effective conduct of
public business, and
(C) facilitates and encourages the amicable
settlements of disputes between employees and
their employers involving conditions of
employment; and
(2) the public interest demands the highest
standards of employee performance and the continued
development and implementation of modern and
progressive work practices to facilitate and improve
employee performance and the efficient accomplishment
of the operations of the Government.
Therefore, labor organizations and collective bargaining in the
civil service are in the public interest.
(b) It is the purpose of this chapter to prescribe certain
rights and obligations of the employees of the Federal
Government and to establish procedures which are designed to
meet the special requirements and needs of the Government. The
provisions of this chapter should be interpreted in a manner
consistent with the requirement of an effective and efficient
Government.
Sec. 7102. Employees' rights
Each employee shall have the right to form, join, or assist
any labor organization, or to refrain from any such activity,
freely and without fear of penalty or reprisal, and each
employee shall be protected in the exercise of such right.
Except as otherwise provided under this chapter, such right
includes the right--
(1) to act for a labor organization in the capacity
of a representative and the right, in that capacity, to
present the views of the labor organization to heads of
agencies and other officials of the executive branch of
the Government, the Congress, or other appropriate
authorities, and
(2) to engage in collective bargaining with respect
to conditions of employment through representatives
chosen by employees under this chapter.
Sec. 7103. Definitions; application
(a) For the purpose of this chapter--
(1) ``person'' means an individual, labor
organization, or agency;
(2) ``employee'' means an individual--
(A) employed in an agency; or
(B) whose employment in an agency has
ceased because of any unfair labor practice
under section 7116 of this title and who has
not obtained any other regular and
substantially equivalent employment, as
determined under regulations prescribed by the
Federal Labor Relations Authority;
but does not include--
(i) an alien or noncitizen of the United
States who occupies a position outside the
United States;
(ii) a member of the uniformed services;
(iii) a supervisor or a management
official;
(iv) an officer or employee in the Foreign
Service of the United States employed in the
Department of State, the International
Communication Agency, the Agency for
International Development, the Department of
Agriculture, or the Department of Commerce; or
(v) any person who participates in a strike
in violation of section 7311 of this title;
(3) ``agency'' means an Executive agency (including
a nonappropriated fund instrumentality described in
section 2105(c) of this title and the Veterans' Canteen
Service, Department of Veterans Affairs), the Library
of Congress, the Government Printing Office, and the
Smithsonian Institution \1\ but does not include--
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\1\ So in law. There probably should be a comma.
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(A) the General Accounting Office;
(B) the Federal Bureau of Investigation;
(C) the Central Intelligence Agency;
(D) the National Security Agency;
(E) the Tennessee Valley Authority;
(F) the Federal Labor Relations Authority;
(G) the Federal Service Impasses Panel; or
(H) the United States Secret Service and
the United States Secret Service Uniformed
Division.
(4) ``labor organization'' means an organization
composed in whole or in part of employees, in which
employees participate and pay dues, and which has as a
purpose the dealing with an agency concerning
grievances and conditions of employment, but does not
include--
(A) an organization which, by its
constitution, bylaws, tacit agreement among its
members, or otherwise, denies membership
because of race, color, creed, national origin,
sex, age, preferential or nonpreferential civil
service status, political affiliation, marital
status, or handicapping condition;
(B) an organization which advocates the
overthrow of the constitutional form of
government of the United States;
(C) an organization sponsored by an agency;
or
(D) an organization which participates in
the conduct of a strike against the Government
or any agency thereof or imposes a duty or
obligation to conduct, assist, or participate
in such a strike;
(5) ``dues'' means dues, fees, and assessments;
(6) ``Authority'' means the Federal Labor Relations
Authority described in section 7104(a) of this title;
(7) ``Panel'' means the Federal Service Impasses
Panel described in section 7119(c) of this title;
(8) ``collective bargaining agreement'' means an
agreement entered into as a result of collective
bargaining pursuant to the provisions of this chapter;
(9) ``grievance'' means any complaint--
(A) by any employee concerning any matter
relating to the employment of the employee;
(B) by any labor organization concerning
any matter relating to the employment of any
employee; or
(C) by any employee labor organization, or
agency concerning--
(i) the effect or interpretation,
or a claim of breach, of a collective
bargaining agreement; or
(ii) any claimed violation,
misinterpretation, or misapplication of
any law, rule, or regulation affecting
conditions of employment;
(10) ``supervisor'' means an individual employed by
an agency having authority in the interest of the
agency to hire, direct, assign, promote, reward,
transfer, furlough, layoff, recall, suspend,
discipline, or remove employees, to adjust their
grievances, or to effectively recommend such action, if
the exercise of the authority is not merely routine or
clerical in nature but requires the consistent exercise
of independent judgment, except that, with respect to
any unit which includes firefighters or nurses, the
term ``supervisor'' includes only those individuals who
devote a preponderance of their employment time to
exercising such authority;
(11) ``management official'' means an individual
employed by an agency in a position the duties and
responsibilities of which require or authorize the
individual to formulate, determine, or influence the
policies of the agency;
(12) ``collective bargaining'' means the
performance of the mutual obligation of the
representative of an agency and the exclusive
representative of employees in an appropriate unit in
the agency to meet at reasonable times and to consult
and bargain in a good-faith effort to reach agreement
with respect to the conditions of employment affecting
such employees and to execute, if requested by either
party, a written document incorporating any collective
bargaining agreement reached, but the obligation
referred to in this paragraph does not compel either
party to agree to a proposal or to make a concession;
(13) ``confidential employee'' means an employee
who acts in a confidential capacity with respect to an
individual who formulates or effectuates management
policies in the field of labor-management relations;
(14) ``conditions of employment'' means personnel
policies, practices, and matters, whether established
by rule, regulation, or otherwise, affecting working
conditions, except that such term does not include
policies, practices, and matters--
(A) relating to political activities
prohibited under subchapter III of chapter 73
of this title;
(B) relating to the classification of any
position; or
(C) to the extent such matters are
specifically provided for by Federal statute;
(15) ``professional employee'' means--
(A) an employee engaged in the performance
of work--
(i) requiring knowledge of an
advanced type in a field of science or
learning customarily acquired by a
prolonged course of specialized
intellectual instruction and study in
an institution of higher learning or a
hospital (as distinguished from
knowledge acquired by a general
academic education, or from an
apprenticeship, or from training in the
performance of routine mental, manual,
mechanical, or physical activities);
(ii) requiring the consistent
exercise of discretion and judgment in
its performance;
(iii) which is predominantly
intellectual and varied in character
(as distinguished from routine mental,
manual, mechanical, or physical work);
and
(iv) which is of such character
that the output produced or the result
accomplished by such work cannot be
standardized in relation to a given
period of time; or
(B) an employee who has completed the
courses of specialized intellectual instruction
and study described in subparagraph (A)(i) of
this paragraph and is performing related work
under appropriate direction or guidance to
qualify the employee as a professional employee
described in subparagraph (A) of this
paragraph;
(16) ``exclusive representative'' means any labor
organization which--
(A) is certified as the exclusive
representative of employees in an appropriate
unit pursuant to section 7111 of this title; or
(B) was recognized by an agency immediately
before the effective date of this chapter as
the exclusive representative of employees in an
appropriate unit--
(i) on the basis of an election, or
(ii) on any basis other than an
election,
and continues to be so recognized in accordance with
the provisions of this chapter;
(17) ``firefighter'' means any employee engaged in
the performance of work directly connected with the
control and extinguishment of fires or the maintenance
and use of firefighting apparatus and equipment; and
(18) ``United States'' means the 50 States, the
District of Columbia, the Commonwealth of Puerto Rico,
Guam, the Virgin Islands, the Trust Territory of the
Pacific Islands, and any territory or possession of the
United States.
(b)(1) The President may issue an order excluding any
agency or subdivision thereof from coverage under this chapter
if the President determines that--
(A) the agency or subdivision has as a primary
function intelligence, counterintelligence,
investigative, or national security work, and
(B) the provisions of this chapter cannot be
applied to that agency or subdivision in a manner
consistent with national security requirements and
considerations.
(2) The President may issue an order suspending any
provision of this chapter with respect to any agency,
installation, or activity located outside the 50 States and the
District of Columbia, if the President determines that the
suspension is necessary in the interest of national security.
Sec. 7104. Federal Labor Relations Authority
(a) The Federal Labor Relations Authority is composed of
three members, not more than 2 of whom may be adherents of the
same political party. No member shall engage in any other
business or employment or hold another office or position in
the Government of the United States except as otherwise
provided by law.
(b) Members of the Authority shall be appointed by the
President by and with the advice and consent of the Senate, and
may be removed by the President only upon notice and hearing
and only for inefficiency, neglect of duty, or malfeasance in
office. The President shall designate one member to serve as
Chairman of the Authority. The Chairman is the chief executive
and administrative officer of the Authority.
(c) A member of the Authority shall be appointed for a term
of 5 years. An individual chosen to fill a vacancy shall be
appointed for the unexpired term of the member replaced. The
term of any member shall not expire before the earlier of--
(1) the date on which the member's successor takes
office, or
(2) the last day of the Congress beginning after
the date on which the member's term of office would
(but for this paragraph) expire.
(d) A vacancy in the Authority shall not impair the right
of the remaining members to exercise all of the powers of the
Authority.
(e) The Authority shall make an annual report to the
President for transmittal to the Congress which shall include
information as to the cases it has heard and the decisions it
has rendered.
(f)(1) The General Counsel of the Authority shall be
appointed by the President, by and with the advice and consent
of the Senate, for a term of 5 years. The General Counsel may
be removed at any time by the President. The General Counsel
shall hold no other office or position in the Government of the
United States except as provided by law.
(2) The General Counsel may--
(A) investigate alleged unfair labor practices
under this chapter,
(B) file and prosecute complaints under this
chapter, and
(C) exercise such other powers of the Authority as
the Authority may prescribe.
(3) The General Counsel shall have direct authority over,
and responsibility for, all employees in the office of General
Counsel, including employees of the General Counsel in the
regional offices of the Authority.
Sec. 7105. Powers and duties of the Authority
(a)(1) The Authority shall provide leadership in
establishing policies and guidance relating to matters under
this chapter, and, except as otherwise provided, shall be
responsible for carrying out the purpose of this chapter.
(2) The Authority shall, to the extent provided in this
chapter and in accordance with regulations prescribed by the
Authority--
(A) determine the appropriateness of units for
labor organization representation under section 7112 of
this title;
(B) supervise or conduct elections to determine
whether a labor organization has been selected as an
exclusive representative by a majority of the employees
in an appropriate unit and otherwise administer the
provisions of section 7111 of this title relating to
the according of exclusive recognition to labor
organizations;
(C) prescribe criteria and resolve issues relating
to the granting of national consultation rights under
section 7113 of this title;
(D) prescribe criteria and resolve issues relating
to determining compelling need for agency rules or
regulations under section 7117(b) of this title;
(E) resolves issues relating to the duty to bargain
in good faith under section 7117(c) of this title;
(F) prescribe criteria relating to the granting of
consultation rights with respect to conditions of
employment under section 7117(d) of this title;
(G) conduct hearings and resolve complaints of
unfair labor practices under section 7118 of this
title;
(H) resolve exceptions to arbitrator's awards under
section 7122 of this title; and
(I) take such other actions as are necessary and
appropriate to effectively administer the provisions of
this chapter.
(b) The Authority shall adopt an official seal which shall
be judicially noticed.
(c) The principal office of the Authority shall be in or
about the District of Columbia, but the Authority may meet and
exercise any or all of its powers at any time or place. Except
as otherwise expressly provided by law, the Authority may, by
one or more of its members or by such agents as it may
designate, make any appropriate inquiry necessary to carry out
its duties wherever persons subject to this chapter are
located. Any member who participates in the inquiry shall not
be disqualified from later participating in a decision of the
Authority in any case relating to the inquiry.
(d) The Authority shall appoint an Executive Director and
such regional directors, administrative law judges under
section 3105 of this title, and other individuals as it may
from time to time find necessary for the proper performance of
its functions. The Authority may delegate to officers and
employees appointed under this subsection authority to perform
such duties and make such expenditures as may be necessary.
(e)(1) The Authority may delegate to any regional director
its authority under this chapter--
(A) to determine whether a group of employees is an
appropriate unit;
(B) to conduct investigations and to provide for
hearings;
(C) to determine whether a question of
representation exists and to direct an election; and
(D) to supervise or conduct secret ballot elections
and certify the results thereof.
(2) The Authority may delegate to any administrative law
judge appointed under subsection (d) of this section its
authority under section 7118 of this title to determine whether
any person has engaged in or is engaging in an unfair labor
practice.
(f) If the Authority delegates any authority to any
regional director or administrative law judge to take any
action pursuant to subsection (e) of this section, the
Authority may, upon application by any interested person filed
within 60 days after the date of the action, review such
action, but the review shall not, unless specifically ordered
by the Authority, operate as a stay of action. The Authority
may affirm, modify, or reverse any action reviewed under this
subsection. If the Authority does not undertake to grant review
of the action under this subsection within 60 days after the
later of--
(1) the date of the action; or
(2) the date of the filing of any application under
this subsection for review of the action;
the action shall become the action of the Authority at the end
of such 60-day period.
(g) In order to carry out its functions under this chapter,
the Authority may--
(1) hold hearings;
(2) administer oaths, take the testimony or
deposition of any person under oath, and issue subpenas
as provided in section 7132 of this title; and
(3) may require an agency or a labor organization
to cease and desist from violations of this chapter and
require it to take any remedial action it considers
appropriate to carry out the policies of this chapter.
(h) Except as provided in section 518 of title 28, relating
to litigation before the Supreme Court, attorneys designated by
the Authority may appear for the Authority and represent the
Authority in any civil action brought in connection with any
function carried out by the Authority pursuant to this title or
as otherwise authorized by law.
(i) In the exercise of the functions of the Authority under
this title, the Authority may request from the Director of the
Office of Personnel Management an advisory opinion concerning
the proper interpretation of rules, regulations, or policy
directives issued by the Office of Personnel Management in
connection with any matter before the Authority.
Sec. 7106. Management rights
(a) Subject to subsection (b) of this section, nothing in
this chapter shall affect the authority of any management
official of any agency--
(1) to determine the mission, budget, organization,
number of employees, and internal security practices of
the agency; and
(2) in accordance with applicable laws--
(A) to hire, assign, direct, layoff, and
retain employees in the agency, or to suspend,
remove, reduce in grade or pay, or take other
disciplinary action against such employees;
(B) to assign work, to make determinations
with respect to contracting out, and to
determine the personnel by which agency
operations shall be conducted;
(C) with respect to filling positions, to
make selections for appointments from--
(i) among properly ranked and
certified candidates for promotion; or
(ii) any other appropriate source;
and
(D) to take whatever actions may be
necessary to carry out the agency mission
during emergencies.
(b) Nothing in this section shall preclude any agency and
any labor organization from negotiating--
(1) at the election of the agency, on the numbers,
types, and grades of employees or positions assigned to
any organizational subdivision, work project, or tour
of duty, or on the technology, methods, and means of
performing work;
(2) procedures which management officials of the
agency will observe in exercising any authority under
this section; or
(3) appropriate arrangements for employees
adversely affected by the exercise of any authority
under this section by such management officials.
SUBCHAPTER II--RIGHTS AND DUTIES OF AGENCIES AND LABOR ORGANIZATIONS
Sec. 7111. Exclusive recognition of labor organizations
(a) An agency shall accord exclusive recognition to a labor
organization if the organization has been selected as the
representative, in a secret ballot election, by a majority of
the employees in an appropriate unit who cast valid ballots in
the election.
(b) If a petition is filed with the Authority--
(1) by any person alleging--
(A) in the case of an appropriate unit for
which there is no exclusive representative,
that 30 percent of the employees in the
appropriate unit wish to be represented for the
purpose of collective bargaining by an
exclusive representative, or
(B) in the case of an appropriate unit for
which there is an exclusive representative,
that 30 percent of the employees in the unit
allege that the exclusive representative is no
longer the representative of the majority of
the employees in the unit; or
(2) by any person seeking clarification of, or an
amendment to, a certification then in effect or a
matter relating to representation;
the Authority shall investigate the petition, and if it has
reasonable cause to believe that a question of representation
exists, it shall provide an opportunity for a hearing (for
which a transcript shall be kept) after a reasonable notice. If
the Authority finds on the record of the hearing that a
question of representation exists, the Authority shall
supervise or conduct an election on the question by secret
ballot and shall certify the results thereof. An election under
this subsection shall not be conducted in any appropriate unit
or in any subdivision thereof within which, in the preceding 12
calendar months, a valid election under this subsection has
been held.
(c) A labor organization which--
(1) has been designated by at least 10 percent of
the employees in the unit specified in any petition
filed pursuant to subsection (b) of this section;
(2) has submitted a valid copy of a current or
recently expired collective bargaining agreement for
the unit; or
(3) has submitted other evidence that it is the
exclusive representative of the employees involved;
may intervene with respect to a petition filed pursuant to
subsection (b) of this section and shall be placed on the
ballot of any election under such subsection (b) with respect
to the petition.
(d) The Authority shall determine who is eligible to vote
in any election under this section and shall establish rules
governing any such election, which shall include rules allowing
employees eligible to vote the opportunity to choose--
(1) from labor organizations on the ballot, that
labor organization which the employees wish to have
represent them; or
(2) not to be represented by a labor organization.
In any election in which no choice on the ballot receives a
majority of the votes cast, a runoff election shall be
conducted between the two choices receiving the highest number
of votes. A labor organization which receives the majority of
the votes cast in an election shall be certified by the
Authority as the exclusive representative.
(e) A labor organization seeking exclusive recognition
shall submit to the Authority and the agency involved a roster
of its officers and representatives, a copy of its constitution
and bylaws, and a statement of its objectives.
(f) Exclusive recognition shall not be accorded to a labor
organization--
(1) if the Authority determines that the labor
organization is subject to corrupt influences or
influences opposed to democratic principles;
(2) in the case of a petition filed pursuant to
subsection (b)(1)(A) of this section, if there is not
credible evidence that at least 30 percent of the
employees in the unit specified in the petition wish to
be represented for the purpose of collective bargaining
by the labor organization seeking exclusive
recognition;
(3) if there is then in effect a lawful written
collective bargaining agreement between the agency
involved and an exclusive representative (other than
the labor organization seeking exclusive recognition)
covering any employees included in the unit specified
in the petition, unless--
(A) the collective bargaining agreement has
been in effect for more than 3 years, or
(B) the petition for exclusive recognition
is filed not more than 105 days and not less
than 60 days before the expiration date of the
collective bargaining agreement; or
(4) if the Authority has, within the previous 12
calendar months, conducted a secret ballot election for
the unit described in any petition under this section
and in such election a majority of the employees voting
chose a labor organization for certification as the
unit's exclusive representative.
(g) Nothing in this section shall be construed to prohibit
the waiving of hearings by stipulation for the purpose of a
consent election in conformity with regulations and rules or
decisions of the Authority.
Sec. 7112. Determination of appropriate units for labor organization
representation
(a) The Authority shall determine the appropriateness of
any unit. The Authority shall determine in each case whether,
in order to ensure employees the fullest freedom in exercising
the rights guaranteed under this chapter, the appropriate unit
should be established on an agency, plant, installation,
functional, or other basis and shall determine any unit to be
an appropriate unit only if the determination will ensure a
clear and identifiable community of interest among the
employees in the unit and will promote effective dealings with,
and efficiency of the operations of the agency involved.
(b) A unit shall not be determined to be appropriate under
this section solely on the basis of the extent to which
employees in the proposed unit have organized, nor shall a unit
be determined to be appropriate if it includes--
(1) except as provided under section 7135(a)(2) of
this title, any management official or supervisor;
(2) a confidential employee;
(3) an employee engaged in personnel work in other
than a purely clerical capacity;
(4) an employee engaged in administering the
provisions of this chapter;
(5) both professional employees and other
employees, unless a majority of the professional
employees vote for inclusion in the unit;
(6) any employee engaged in intelligence,
counterintelligence, investigative, or security work
which directly affects national security; or
(7) any employee primarily engaged in investigation
or audit functions relating to the work of individuals
employed by an agency whose duties directly affect the
internal security of the agency, but only if the
functions are undertaken to ensure that the duties are
discharged honestly and with integrity.
(c) Any employee who is engaged in administering any
provision of law relating to labor-management relations may not
be represented by a labor organization--
(1) which represents other individuals to whom such
provision applies; or
(2) which is affiliated directly or indirectly with
an organization which represents other individuals to
whom such provision applies.
(d) Two or more units which are in an agency and for which
a labor organization is the exclusive representative may, upon
petition by the agency or labor organization, be consolidated
with or without an election into a single larger unit if the
Authority considers the larger unit to be appropriate. The
Authority shall certify the labor organization as the exclusive
representative of the new larger unit.
Sec. 7113. National consultation rights
(a) If, in connection with any agency, no labor
organization has been accorded exclusive recognition on an
agency basis, a labor organization which is the exclusive
representative of a substantial number of the employees of the
agency, as determined in accordance with criteria prescribed by
the Authority, shall be granted national consultation rights by
the agency. National consultation rights shall terminate when
the labor organization no longer meets the criteria prescribed
by the Authority. Any issue relating to any labor
organization's eligibility for, or continuation of, national
consultation rights shall be subject to determination by the
Authority.
(b)(1) Any labor organization having national consultation
rights in connection with any agency under subsection (a) of
this section shall--
(A) be informed of any substantive change in
conditions of employment proposed by the agency, and
(B) be permitted reasonable time to present its
views and recommendations regarding the changes.
(2) If any views or recommendations are presented under
paragraph (1) of this subsection to an agency by any labor
organization--
(A) the agency shall consider the views or
recommendations before taking final action on any
matter with respect to which the views or
recommendations are presented; and
(B) the agency shall provide the labor organization
a written statement of the reasons for taking the final
action.
(c) Nothing in this section shall be construed to limit the
right of any agency or exclusive representative to engage in
collective bargaining.
Sec. 7114. Representation rights and duties
(a)(1) A labor organization which has been accorded
exclusive recognition is the exclusive representative of the
employees in the unit it represents and is entitled to act for,
and negotiate collective bargaining agreements covering, all
employees in the unit. An exclusive representative is
responsible for representing the interests of all employees in
the unit it represents without discrimination and without
regard to labor organization membership.
(2) An exclusive representative of an appropriate unit in
an agency shall be given the opportunity to be represented at--
(A) any formal discussion between one or more
representatives of the agency and one or more employees
in the unit or their representatives concerning any
grievance or any personnel policy or practices or other
general condition of employment; or
(B) any examination of an employee in the unit by a
representative of the agency in connection with an
investigation if--
(i) the employee reasonably believes that
the examination may result in disciplinary
action against the employee; and
(ii) the employee requests representation.
(3) Each agency shall annually inform its employees of
their rights under paragraph (2)(B) of this subsection.
(4) Any agency and any exclusive representative in any
appropriate unit in the agency, through appropriate
representatives, shall meet and negotiate in good faith for the
purposes of arriving at a collective bargaining agreement. In
addition, the agency and the exclusive representative may
determine appropriate techniques, consistent with the
provisions of section 7119 of this title, to assist in any
negotiation.
(5) The rights of an exclusive representative under the
provisions of this subsection shall not be construed to
preclude an employee from--
(A) being represented by an attorney or other
representative, other than the exclusive
representative, of the employee's own choosing in any
grievance or appeal action; or
(B) exercising grievance or appellate rights
established by law, rule, or regulation;
except in the case of grievance or appeal procedures negotiated
under this chapter.
(b) The duty of an agency and an exclusive representative
to negotiate in good faith under subsection (a) of this section
shall include the obligation--
(1) to approach the negotiations with a sincere
resolve to reach a collective bargaining agreement;
(2) to be represented at the negotiations by duly
authorized representatives prepared to discuss and
negotiate on any condition of employment;
(3) to meet at reasonable times and convenient
places as frequently as may be necessary, and to avoid
unnecessary delays;
(4) in the case of an agency, to furnish to the
exclusive representative involved, or its authorized
representative, upon request and, to the extent not
prohibited by law, data--
(A) which is normally maintained by the
agency in the regular course of business;
(B) which is reasonably available and
necessary for full and proper discussion,
understanding, and negotiation of subjects
within the scope of collective bargaining; and
(C) which does not constitute guidance,
advice, counsel, or training provided for
management officials or supervisors, relating
to collective bargaining; and
(5) if agreement is reached, to execute on the
request of any party to the negotiation a written
document embodying the agreed terms, and to take such
steps as are necessary to implement such agreement.
(c)(1) An agreement between any agency and an exclusive
representative shall be subject to approval by the head of the
agency.
(2) The head of the agency shall approve the agreement
within 30 days from the date the agreement is executed if the
agreement is in accordance with the provisions of this chapter
and any other applicable law, rule, or regulation (unless the
agency has granted an exception to the provision).
(3) If the head of the agency does not approve or
disapprove the agreement within the 30-day period, the
agreement shall take effect and shall be binding on the agency
and the exclusive representative subject to the provisions of
this chapter and any other applicable law, rule, or regulation.
(4) A local agreement subject to a national or other
controlling agreement at a higher level shall be approved under
the procedures of the controlling agreement or, if none, under
regulations prescribed by the agency.
Sec. 7115. Allotments to representatives
(a) If an agency has received from an employee in an
appropriate unit a written assignment which authorizes the
agency to deduct from the pay of the employee amounts for the
payment of regular and periodic dues of the exclusive
representative of the unit, the agency shall honor the
assignment and make an appropriate allotment pursuant to the
assignment. Any such allotment shall be made at no cost to the
exclusive representative or the employee. Except as provided
under subsection (b) of this section, any such assignment may
not be revoked for a period of 1 year.
(b) An allotment under subsection (a) of this section for
the deduction of dues with respect to any employee shall
terminate when--
(1) the agreement between the agency and the
exclusive representative involved ceases to be
applicable to the employee; or
(2) the employee is suspended or expelled from
membership in the exclusive representative.
(c)(1) Subject to paragraph (2) of this subsection, if a
petition has been filed with the Authority by a labor
organization alleging that 10 percent of the employees in an
appropriate unit in an agency have membership in the labor
organization, the Authority shall investigate the petition to
determine its validity. Upon certification by the Authority of
the validity of the petition, the agency shall have a duty to
negotiate with the labor organization solely concerning the
deduction of dues of the labor organization from the pay of the
members of the labor organization who are employees in the unit
and who make a voluntary allotment for such purpose.
(2)(A) The provisions of paragraph (1) of this subsection
shall not apply in the case of any appropriate unit for which
there is an exclusive representative.
(B) Any agreement under paragraph (1) of this subsection
between a labor organization and an agency with respect to an
appropriate unit shall be null and void upon the certification
of an exclusive representative of the unit.
Sec. 7116. Unfair labor practices
(a) For the purpose of this chapter, it shall be an unfair
labor practice for an agency--
(1) to interfere with, restrain, or coerce any
employee in the exercise by the employee of any right
under this chapter;
(2) to encourage or discourage membership in any
labor organization by discrimination in connection with
hiring, tenure, promotion, or other conditions of
employment;
(3) to sponsor, control, or otherwise assist any
labor organization, other than to furnish, upon
request, customary and routine services and facilities
if the services and facilities are also furnished on an
impartial basis to other labor organizations having
equivalent status;
(4) to discipline or otherwise discriminate against
an employee because the employee has filed a complaint,
affidavit, or petition, or has given any information or
testimony under this chapter;
(5) to refuse to consult or negotiate in good faith
with a labor organization as required by this chapter;
(6) to fail or refuse to cooperate in impasse
procedures and impasse decisions as required by this
chapter;
(7) to enforce any rule or regulation (other than a
rule or regulation implementing section 2302 of this
title) which is in conflict with any applicable
collective bargaining agreement if the agreement was in
effect before the date the rule or regulation was
prescribed; or
(8) to otherwise fail or refuse to comply with any
provision of this chapter.
(b) For the purpose of this chapter, it shall be an unfair
labor practice for a labor organization--
(1) to interfere with, restrain, or coerce any
employee in the exercise by the employee of any right
under this chapter;
(2) to cause or attempt to cause an agency to
discriminate against any employee in the exercise by
the employee of any right under this chapter;
(3) to coerce, discipline, fine, or attempt to
coerce a member of the labor organization as
punishment, reprisal, or for the purpose of hindering
or impeding the member's work performance or
productivity as an employee or the discharge of the
member's duties as an employee;
(4) to discriminate against an employee with regard
to the terms or conditions of membership in the labor
organization on the basis of race, color, creed,
national origin, sex, age, preferential or
nonpreferential civil service status, political
affiliation, marital status, or handicapping condition;
(5) to refuse to consult or negotiate in good faith
with an agency as required by this chapter;
(6) to fail or refuse to cooperate in impasse
procedures and impasse decisions as required by this
chapter;
(7)(A) to call, or participate in, a strike, work
stoppage, or slowdown, or picketing of an agency in a
labor-management dispute if such picketing interferes
with an agency's operations, or
(B) to condone any activity described in
subparagraph (A) of this paragraph by failing to take
action to prevent or stop such activity; or
(8) to otherwise fail or refuse to comply with any
provision of this chapter.
Nothing in paragraph (7) of this subsection shall result in any
informational picketing which does not interfere with an
agency's operations being considered as an unfair labor
practice.
(c) For the purpose of this chapter it shall be an unfair
labor practice for an exclusive representative to deny
membership to any employee in the appropriate unit represented
by such exclusive representative except for failure--
(1) to meet reasonable occupational standards
uniformly required for admission, or
(2) to tender dues uniformly required as a
condition of acquiring and retaining membership.
This subsection does not preclude any labor organization from
enforcing discipline in accordance with procedures under its
constitution or bylaws to the extent consistent with the
provisions of this chapter.
(d) Issues which can properly be raised under an appeals
procedure may not be raised as unfair labor practices
prohibited under this section. Except for matters wherein,
under section 7121(e) and (f) of this title, an employee has an
option of using the negotiated grievance procedure or an
appeals procedure, issues which can be raised under a grievance
procedure may, in the discretion of the aggrieved party, be
raised under the grievance procedure or as an unfair labor
practice under this section, but not under both procedures.
(e) The expression of any personal view, argument, opinion
or the making of any statement which--
(1) publicizes the fact of a representational
election and encourages employees to exercise their
right to vote in such election,
(2) corrects the record with respect to any false
or misleading statement made by any person, or
(3) informs employees of the Government's policy
relating to labor-management relations and
representation,
shall not, if the expression contains no threat of reprisal or
force or promise of benefit or was not made under coercive
conditions, (A) constitute an unfair labor practice under any
provision of this chapter, or (B) constitute grounds for the
setting aside of any election conducted under any provisions of
this chapter.
Sec. 7117. Duty to bargain in good faith; compelling need; duty to
consult
(a)(1) Subject to paragraph (2) of this subsection, the
duty to bargain in good faith shall, to the extent not
inconsistent with any Federal law or any Government-wide rule
or regulation, extend to matters which are the subject of any
rule or regulation only if the rule or regulation is not a
Government-wide rule or regulation.
(2) The duty to bargain in good faith shall, to the extent
not inconsistent with Federal law or any Government-wide rule
or regulation, extend to matters which are the subject of any
agency rule or regulation referred to in paragraph (3) of this
subsection only if the Authority has determined under
subsection (b) of this section that no compelling need (as
determined under regulations prescribed by the Authority)
exists for the rule or regulation.
(3) Paragraph (2) of the subsection applies to any rule or
regulation issued by any agency or issued by any primary
national subdivision of such agency, unless an exclusive
representative represents an appropriate unit including not
less than a majority of the employees in the issuing agency or
primary national subdivision, as the case may be, to whom the
rule or regulation is applicable.
(b)(1) In any case of collective bargaining in which an
exclusive representative alleges that no compelling need exists
for any rule or regulation referred to in subsection (a)(3) of
this section which is then in effect and which governs any
matter at issue in such collective bargaining, the Authority
shall determine under paragraph (2) of this subsection, in
accordance with regulations prescribed by the Authority,
whether such a compelling need exists.
(2) For the purpose of this section, a compelling need
shall be determined not to exist for any rule or regulation
only if--
(A) the agency, or primary national subdivision, as
the case may be, which issued the rule or regulation
informs the Authority in writing that a compelling need
for the rule or regulation does not exist; or
(B) the Authority determines that a compelling need
for a rule or regulation does not exist.
(3) A hearing may be held, in the discretion of the
Authority, before a determination is made under this
subsection. If a hearing is held, it shall be expedited to the
extent practicable and shall not include the General Counsel as
a party.
(4) The agency, or primary national subdivision, as the
case may be, which issued the rule or regulation shall be a
necessary party at any hearing under this subsection.
(c)(1) Except in any case to which subsection (b) of this
section applies, if an agency involved in collective bargaining
with an exclusive representative alleges that the duty to
bargain in good faith does not extend to any matter, the
exclusive representative may appeal the allegation to the
Authority in accordance with the provisions of this subsection.
(2) The exclusive representative may, on or before the 15th
day after the date on which the agency first makes the
allegation referred to in paragraph (1) of this subsection,
institute an appeal under this subsection by--
(A) filing a petition with the Authority; and
(B) furnishing a copy of the petition to the head
of the agency.
(3) On or before the 30th day after the date of the receipt
by the head of the agency of the copy of the petition under
paragraph (2)(B) of this subsection, the agency shall--
(A) file with the Authority a statement--
(i) withdrawing the allegation; or
(ii) setting forth in full its reasons
supporting the allegation; and
(B) furnish a copy of such statement to the
exclusive representative.
(4) On or before the 15th day after the date of the receipt
by the exclusive representative of a copy of a statement under
paragraph (3)(B) of this subsection, the exclusive
representative shall file with the Authority its response to
the statement.
(5) A hearing may be held in the discretion of the
Authority, before a determination is made under this
subsection. If a hearing is held, it shall not include the
General Counsel as a party.
(6) The Authority shall expedite proceedings under this
subsection to the extent practicable and shall issue to the
exclusive representative and to the agency a written decision
on the allegation and specific reasons therefore at the
earliest practicable date.
(d)(1) A labor organization which is the exclusive
representative of a substantial number of employees, determined
in accordance with criteria prescribed by the Authority, shall
be granted consultation rights by any agency with respect to
any Government-wide rule or regulation issued by the agency
effecting any substantive change in any condition of
employment. Such consultation rights shall terminate when the
labor organization no longer meets the criteria prescribed by
the Authority. Any issue relating to a labor organization's
eligibility for, or continuation of, such consultation rights
shall be subject to determination by the Authority.
(2) A labor organization having consultation rights under
paragraph (1) of this subsection shall--
(A) be informed of any substantive change in
conditions of employment proposed by the agency, and
(B) shall be permitted reasonable time to present
its views and recommendations regarding the changes.
(3) If any views or recommendations are presented under
paragraph (2) of this subsection to an agency by any labor
organization--
(A) the agency shall consider the views or
recommendations before taking final action on any
matter with respect to which the views or
recommendations are presented; and
(B) the agency shall provide the labor organization
a written statement of the reasons for taking the final
action.
Sec. 7118. Prevention of unfair labor practices
(a)(1) If any agency or labor organization is charged by
any person with having engaged in or engaging in an unfair
labor practice, the General Counsel shall investigate the
charge and may issue and cause to be served upon the agency or
labor organization a complaint. In any case in which the
General Counsel does not issue a complaint because the charge
fails to state an unfair labor practice, the General Counsel
shall provide the person making the charge a written statement
of the reasons for not issuing a complaint.
(2) Any complaint under paragraph (1) of this subsection
shall contain a notice--
(A) of the charge;
(B) that a hearing will be held before the
Authority (or any member thereof or before an
individual employed by the authority and designated for
such purpose); and
(C) of the time and place fixed for the hearing.
(3) The labor organization or agency involved shall have
the right to file an answer to the original and any amended
complaint and to appear in person or otherwise and give
testimony at the time and place fixed in the complaint for the
hearing.
(4)(A) Except as provided in subparagraph (B) of this
paragraph, no complaint shall be issued based on any alleged
unfair labor practice which occurred more than 6 months before
the filing of the charge with the Authority.
(B) If the General Counsel determines that the person
filing any charge was prevented from filing the charge during
the 6-month period referred to in subparagraph (A) of this
paragraph by reason of--
(i) any failure of the agency or labor organization
against which the charge is made to perform a duty owed
to the person, or
(ii) any concealment which prevented discovery of
the alleged unfair labor practice during the 6-month
period,
the General Counsel may issue a complaint based on the charge
if the charge was filed during the 6-month period beginning on
the day of the discovery by the person of the alleged unfair
labor practice.
(5) The General Counsel may prescribe regulations providing
for informal methods by which the alleged unfair labor practice
may be resolved prior to the issuance of a complaint.
(6) The Authority (or any member thereof or any individual
employed by the Authority and designated for such purpose)
shall conduct a hearing on the complaint not earlier than 5
days after the date on which the complaint is served. In the
discretion of the individual or individuals conducting the
hearing, any person involved may be allowed to intervene in the
hearing and to present testimony. Any such hearing shall, to
the extent practicable, be conducted in accordance with the
provisions of subchapter II of chapter 5 of this title, except
that the parties shall not be bound by rules of evidence,
whether statutory, common law, or adopted by a court. A
transcript shall be kept of the hearing. After such a hearing
the Authority, in its discretion, may upon notice receive
further evidence or hear argument.
(7) If the Authority (or any member thereof or any
individual employed by the Authority and designated for such
purpose) determines after any hearing on a complaint under
paragraph (5) of this subsection that the preponderance of the
evidence received demonstrates that the agency or labor
organization named in the complaint has engaged in or is
engaging in an unfair labor practice, then the individual or
individuals conducting the hearing shall state in writing their
findings of fact and shall issue and cause to be served on the
agency or labor organization an order--
(A) to cease and desist from any such unfair labor
practice in which the agency or labor organization is
engaged;
(B) requiring the parties to renegotiate a
collective bargaining agreement in accordance with the
order of the Authority and requiring that the
agreement, as amended, be given retroactive effect;
(C) requiring reinstatement of an employee with
backpay in accordance with section 5596 of this title;
or
(D) including any combination of the actions
described in subparagraphs (A) through (C) of this
paragraph or such other action as will carry out the
purpose of this chapter.
If any such order requires reinstatement of an employee with
backpay, backpay may be required of the agency (as provided in
section 5596 of this title) or of the labor organization, as
the case may be, which is found to have engaged in the unfair
labor practice involved.
(8) If the individual or individuals conducting the hearing
determine that the preponderance of the evidence received fails
to demonstrate that the agency or labor organization named in
the complaint has engaged in or is engaging in an unfair labor
practice, the individual or individuals shall state in writing
their findings of fact and shall issue an order dismissing the
complaint.
(b) In connection with any matter before the Authority in
any proceeding under this section, the Authority may request,
in accordance with the provisions of section 7105(i) of this
title, from the Director of the Office of Personnel Management
an advisory opinion concerning the proper interpretation of
rules, regulations, or other policy directives issued by the
Office of Personnel Management.
Sec. 7119. Negotiation impasses; Federal Service Impasses Panel
(a) The Federal Mediation and Conciliation Service shall
provide services and assistance to agencies and exclusive
representatives in the resolution of negotiation impasses. The
Service shall determine under what circumstances and in what
manner it shall provide services and assistance.
(b) If voluntary arrangements, including the services of
the Federal Mediation and Conciliation Service or any other
third-party mediation, fail to resolve a negotiation impasse--
(1) either party may request the Federal Service
Impasses Panel to consider the matter, or
(2) the parties may agree to adopt a procedure for
binding arbitration of the negotiation impasse, but
only if the procedure is approved by the Panel.
(c)(1) The Federal Service Impasses Panel is an entity
within the Authority, the function of which is to provide
assistance in resolving negotiation impasses between agencies
and exclusive representatives.
(2) The Panel shall be composed of a Chairman and at least
six other members, who shall be appointed by the President,
solely on the basis of fitness to perform the duties and
functions involved, from among individuals who are familiar
with Government operations and knowledgeable in labor-
management relations.
(3) Of the original members of the Panel, 2 members shall
be appointed for a term of 1 year, 2 members shall be appointed
for a term of 3 years, and the Chairman and the remaining
members shall be appointed for a term of 5 years. Thereafter
each member shall be appointed for a term of 5 years, except
that an individual chosen to fill a vacancy shall be appointed
for the unexpired term of the member replaced. Any member of
the Panel may be removed by the President.
(4) The Panel may appoint an Executive Director and any
other individuals it may from time to time find necessary for
the proper performance of its duties. Each member of the Panel
who is not an employee (as defined in section 2105 of this
title) is entitled to pay at a rate equal to the daily
equivalent of the maximum annual rate of basic pay then
currently paid under the General Schedule for each day he is
engaged in the performance of official business of the Panel,
including travel time, and is entitled to travel expenses as
provided under section 5703 of this title.
(5)(A) The Panel or its designee shall promptly investigate
any impasse presented to it under subsection (b) of this
section. The Panel shall consider the impasse and shall
either--
(i) recommend to the parties procedures for the
resolution of the impasse; or
(ii) assist the parties in resolving the impasse
through whatever methods and procedures, including
factfinding and recommendations, it may consider
appropriate to accomplish the purpose of this section.
(B) If the parties do not arrive at a settlement after
assistance by the Panel under subparagraph (A) of this
paragraph, the Panel may--
(i) hold hearings;
(ii) administer oaths, take the testimony or
deposition of any person under oath, and issue subpenas
as provided in section 7132 of this title; and
(iii) take whatever action is necessary and not
inconsistent with this chapter to resolve the impasse.
(C) Notice of any final action of the Panel under this
section shall be promptly served upon the parties, and the
action shall be binding on such parties during the term of the
agreement, unless the parties agree otherwise.
Sec. 7120. Standards of conduct for labor organizations
(a) An agency shall only accord recognition to a labor
organization that is free from corrupt influences and
influences opposed to basic democratic principles. Except as
provided in subsection (b) of this section, an organization is
not required to prove that it is free from such influences if
it is subject to governing requirements adopted by the
organization or by a national or international labor
organization or federation of labor organizations with which it
is affiliated, or in which it participates, containing explicit
and detailed provisions to which it subscribes calling for--
(1) the maintenance of democratic procedures and
practices including provisions for periodic elections
to be conducted subject to recognized safeguards and
provisions defining and securing the right of
individual members to participate in the affairs of the
organization, to receive fair and equal treatment under
the governing rules of the organization, and to receive
fair process in disciplinary proceedings;
(2) the exclusion from office in the organization
of persons affiliated with communist or other
totalitarian movements and persons identified with
corrupt influences;
(3) the prohibition of business or financial
interests on the part of organization officers and
agents which conflict with their duty to the
organization and its members; and
(4) the maintenance of fiscal integrity in the
conduct of the affairs of the organization, including
provisions for accounting and financial controls and
regular financial reports or summaries to be made
available to members.
(b) Notwithstanding the fact that a labor organization has
adopted or subscribed to standards of conduct as provided in
subsection (a) of this section, the organization is required to
furnish evidence of its freedom from corrupt influences or
influences opposed to basic democratic principles if there is
reasonable cause to believe that--
(1) the organization has been suspended or expelled
from, or is subject to other sanction, by a parent
labor organization, or federation of organizations with
which it had been affiliated, because it has
demonstrated an unwillingness or inability to comply
with governing requirements comparable in purpose to
those required by subsection (a) of this section; or
(2) the organization is in fact subject to
influences that would preclude recognition under this
chapter.
(c) A labor organization which has or seeks recognition as
a representative of employees under this chapter shall file
financial and other reports with the Assistant Secretary of
Labor for Labor Management Relations, provide for bonding of
officials and employees of the organization, and comply with
trusteeship and election standards.
(d) The Assistant Secretary shall prescribe such
regulations as are necessary to carry out the purposes of this
section. Such regulations shall conform generally to the
principles applied to labor organizations in the private
sector. Complaints of violations of this section shall be filed
with the Assistant Secretary. In any matter arising under this
section, the Assistant Secretary may require a labor
organization to cease and desist from violations of this
section and require it to take such actions as he considers
appropriate to carry out the policies of this section.
(e) This chapter does not authorize participation in the
management of a labor organization or acting as a
representative of a labor organization by a management
official, a supervisor, or a confidential employee, except as
specifically provided in this chapter, or by an employee if the
participation or activity would result in a conflict or
apparent conflict of interest or would otherwise be
incompatible with law or with the official duties of the
employee.
(f) In the case of any labor organization which by omission
or commission has willfully and intentionally, with regard to
any strike, work stoppage, or slowdown, violated section
7116(b)(7) of this title, the Authority shall, upon an
appropriate finding by the Authority of such violation--
(1) revoke the exclusive recognition status of the
labor organization, which shall then immediately cease
to be legally entitled and obligated to represent
employees in the unit; or
(2) take any other appropriate disciplinary action.
SUBCHAPTER III--GRIEVANCES, APPEALS, AND REVIEW
Sec. 7121. Grievance procedures
(a)(1) Except as provided in paragraph (2) of this
subsection, any collective bargaining agreement shall provide
procedures for the settlement of grievances, including
questions of arbitrability. Except as provided in subsections
(d), (e), and (g) of this section, the procedures shall be the
exclusive administrative procedures for resolving grievances
which fall within its coverage.
(2) Any collective bargaining agreement may exclude any
matter from the application of the grievance procedures which
are provided for in the agreement.
(b)(1) Any negotiated grievance procedure referred to in
subsection (a) of this section shall--
(A) be fair and simple,
(B) provide for expeditious processing, and
(C) include procedures that--
(i) assure an exclusive representative the
right, in its own behalf or on behalf of any
employee in the unit represented by the
exclusive representative, to present and
process grievances;
(ii) assure such an employee the right to
present a grievance on the employee's own
behalf, and assure the exclusive representative
the right to be present during the grievance
proceeding; and
(iii) provide that any grievance not
satisfactorily settled under the negotiated
grievance procedure shall be subject to binding
arbitration which may be invoked by either the
exclusive representative or the agency.
(2)(A) The provisions of a negotiated grievance procedure
providing for binding arbitration in accordance with paragraph
(1)(C)(iii) shall, if or to the extent that an alleged
prohibited personnel practice is involved, allow the arbitrator
to order--
(i) a stay of any personnel action in a manner
similar to the manner described in section 1221(c) with
respect to the Merit Systems Protection Board; and
(ii) the taking, by an agency, of any disciplinary
action identified under section 1215(a)(3) that is
otherwise within the authority of such agency to take.
(B) Any employee who is the subject of any disciplinary
action ordered under subparagraph (A)(ii) may appeal such
action to the same extent and in the same manner as if the
agency had taken the disciplinary action absent arbitration.
(c) The preceding subsections of this section shall not
apply with respect to any grievance concerning--
(1) any claimed violation of subchapter III of
chapter 73 of this title (relating to prohibited
political activities);
(2) retirement, life insurance, or health
insurance;
(3) a suspension or removal under section 7532 of
this title;
(4) any examination, certification, or appointment;
or
(5) the classification of any position which does
not result in the reduction in grade or pay of an
employee.
(d) An aggrieved employee affected by a prohibited
personnel practice under section 2302(b)(1) of this title which
also falls under the coverage of the negotiated grievance
procedure may raise the matter under a statutory procedure or
the negotiated procedure, but not both. An employee shall be
deemed to have exercised his option under this subsection to
raise the matter under either a statutory procedure or the
negotiated procedure at such time as the employee timely
initiates an action under the applicable statutory procedure or
timely files a grievance in writing, in accordance with the
provisions of the parties' negotiated procedure, whichever
event occurs first. Selection of the negotiated procedure in no
manner prejudices the right of an aggrieved employee to request
the Merit Systems Protection Board to review the final decision
pursuant to section 7702 of this title in the case of any
personnel action that could have been appealed to the Board,
or, where applicable, to request the Equal Employment
Opportunity Commission to review a final decision in any other
matter involving a complaint of discrimination of the type
prohibited by any law administered by the Equal Employment
Opportunity Commission.
(e)(1) Matters covered under sections 4303 and 7512 of this
title which also fall within the coverage of the negotiated
grievance procedure may, in the discretion of the aggrieved
employee, be raised either under the appellate procedures of
section 7701 of this title or under the negotiated grievance
procedure, but not both. Similar matters which arise under
other personnel systems applicable to employees covered by this
chapter may, in the discretion of the aggrieved employee, be
raised either under the appellate procedures, if any,
applicable to those matters, or under the negotiated grievance
procedure, but not both. An employee shall be deemed to have
exercised his option under this subsection to raise a matter
either under the applicable appellate procedures or under the
negotiated grievance procedure at such time as the employee
timely files a notice of appeal under the applicable appellate
procedures or timely files a grievance in writing in accordance
with the provisions of the parties' negotiated grievance
procedure, whichever event occurs first.
(2) In matters covered under sections 4303 and 7512 of this
title which have been raised under the negotiated grievance
procedure in accordance with this section, an arbitrator shall
be governed by section 7701(c)(1) of this title, as applicable.
(f) In matters covered under sections 4303 and 7512 of this
title which have been raised under the negotiated grievance
procedure in accordance with this section, section 7703 of this
title pertaining to judicial review shall apply to the award of
an arbitrator in the same manner and under the same conditions
as if the matter had been decided by the Board. In matters
similar to those covered under sections 4303 and 7512 of this
title which arise under other personnel systems and which an
aggrieved employee has raised under the negotiated grievance
procedure, judicial review of an arbitrator's award may be
obtained in the same manner and on the same basis as could be
obtained of a final decision in such matters raised under
applicable appellate procedures.
(g)(1) This subsection applies with respect to a prohibited
personnel practice other than a prohibited personnel practice
to which subsection (d) applies.
(2) An aggrieved employee affected by a prohibited
personnel practice described in paragraph (1) may elect not
more than one of the remedies described in paragraph (3) with
respect thereto. For purposes of the preceding sentence, a
determination as to whether a particular remedy has been
elected shall be made as set forth under paragraph (4).
(3) The remedies described in this paragraph are as
follows:
(A) An appeal to the Merit Systems Protection Board
under section 7701.
(B) A negotiated grievance procedure under this
section.
(C) Procedures for seeking corrective action under
subchapters II and III of chapter 12.
(4) For the purpose of this subsection, a person shall be
considered to have elected--
(A) the remedy described in paragraph (3)(A) if
such person has timely filed a notice of appeal under
the applicable appellate procedures;
(B) the remedy described in paragraph (3)(B) if
such person has timely filed a grievance in writing, in
accordance with the provisions of the parties'
negotiated procedure; or
(C) the remedy described in paragraph (3)(C) if
such person has sought corrective action from the
Office of Special Counsel by making an allegation under
section 1214(a)(1).
(h) Settlements and awards under this chapter shall be
subject to the limitations in section 5596(b)(4) of this title.
Sec. 7122. Exceptions to arbitral awards
(a) Either party to arbitration under this chapter may file
with the Authority an exception to any arbitrator's award
pursuant to the arbitration (other than an award relating to a
matter described in section 7121(f) of this title). If upon
review the Authority finds that the award is deficient--
(1) because it is contrary to any law, rule, or
regulation; or
(2) on other grounds similar to those applied by
Federal courts in private sector labor-management
relations;
the Authority may take such action and make such
recommendations concerning the award as it considers necessary,
consistent with applicable laws, rules, or regulations.
(b) If no exception to an arbitrator's award is filed under
subsection (a) of this section during the 30-day period
beginning on the date the award is served on the party, the
award shall be final and binding. An agency shall take the
actions required by an arbitrator's final award. The award may
include the payment of backpay (as provided in section 5596 of
this title).
Sec. 7123. Judicial review; enforcement
(a) Any person aggrieved by any final order of the
Authority other than an order under--
(1) section 7122 of this title (involving an award
by an arbitrator), unless the order involves an unfair
labor practice under section 7118 of this title, or
(2) section 7112 of this title (involving an
appropriate unit determination),
may, during the 60-day period beginning on the date on which
the order was issued, institute an action for judicial review
of the Authority's order in the United States court of appeals
in the circuit in which the person resides or transacts
business or in the United States Court of Appeals for the
District of Columbia.
(b) The Authority may petition any appropriate United
States court of appeals for the enforcement of any order of the
Authority and for appropriate temporary relief or restraining
order.
(c) Upon the filing of a petition under subsection (a) of
this section for judicial review or under subsection (b) of
this section for enforcement, the Authority shall file in the
court the record in the proceedings, as provided in section
2112 of title 28. Upon the filing of the petition, the court
shall cause notice thereof to be served to the parties
involved, and thereupon shall have jurisdiction of the
proceeding and of the question determined therein and may grant
any temporary relief (including a temporary restraining order)
it considers just and proper, and may make and enter a decree
affirming and enforcing, modifying and enforcing as so
modified, or setting aside in whole or in part the order of the
Authority. The filing of a petition under subsection (a) or (b)
of this section shall not operate as a stay of the Authority's
order unless the court specifically orders the stay. Review of
the Authority's order shall be on the record in accordance with
section 706 of this title. No objection that has not been urged
before the Authority, or its designee, shall be considered by
the court, unless the failure or neglect to urge the objection
is excused because of extraordinary circumstances. The findings
of the Authority with respect to questions of fact, if
supported by substantial evidence on the record considered as a
whole, shall be conclusive. If any person applies to the court
for leave to adduce additional evidence and shows to the
satisfaction of the court that the additional evidence is
material and that there were reasonable grounds for the failure
to adduce the evidence in the hearing before the Authority, or
its designee, the court may order the additional evidence to be
taken before the Authority, or its designee, and to be made a
part of the record. The Authority may modify its findings as to
the facts, or make new findings by reason of additional
evidence so taken and filed. The Authority shall file its
modified or new findings, which, with respect to questions of
fact, if supported by substantial evidence on the record
considered as a whole, shall be conclusive. The Authority shall
file its recommendations, if any, for the modification or
setting aside of its original order. Upon the filing of the
record with the court, the jurisdiction of the court shall be
exclusive and its judgment and decree shall be final, except
that the judgment and decree shall be subject to review by the
Supreme Court of the United States upon writ of certiorari or
certification as provided in section 1254 of title 28.
(d) The Authority may, upon issuance of a complaint as
provided in section 7118 of this title charging that any person
has engaged in or is engaging in an unfair labor practice,
petition any United States district court within any district
in which the unfair labor practice in question is alleged to
have occurred or in which such person resides or transacts
business for appropriate temporary relief (including a
restraining order). Upon the filing of the petition, the court
shall cause notice thereof to be served upon the person, and
thereupon shall have jurisdiction to grant any temporary relief
(including a temporary restraining order) it considers just and
proper. A court shall not grant any temporary relief under this
section if it would interfere with the ability of the agency to
carry out its essential functions or if the Authority fails to
establish probable cause that an unfair labor practice is being
committed.
SUBCHAPTER IV--ADMINISTRATIVE AND OTHER PROVISIONS
Sec. 7131. Official time
(a) Any employee representing an exclusive representative
in the negotiation of a collective bargaining agreement under
this chapter shall be authorized official time for such
purposes, including attendance at impasse proceeding, during
the time the employee otherwise would be in a duty status. The
number of employees for whom official time is authorized under
this subsection shall not exceed the number of individuals
designated as representing the agency for such purposes.
(b) Any activities performed by any employee relating to
the internal business of a labor organization (including the
solicitation of membership, elections of labor organization
officials, and collection of dues) shall be performed during
the time the employee is in a non-duty status.
(c) Except as provided in subsection (a) of this section,
the Authority shall determine whether any employee
participating for, or on behalf of, a labor organization in any
phase of proceedings before the Authority shall be authorized
official time for such purpose during the time the employee
otherwise would be in a duty status.
(d) Except as provided in the preceding subsections of this
section--
(1) any employee representing an exclusive
representative, or
(2) in connection with any other matter covered by
this chapter, any employee in an appropriate unit
represented by an exclusive representative,
shall be granted official time in any amount the agency and the
exclusive representative involved agree to be reasonable,
necessary, and in the public interest.
Sec. 7132. Subpenas
(a) Any member of the Authority, the General Counsel, or
the Panel, any administrative law judge appointed by the
Authority under section 3105 of this title, and any employee of
the Authority designated by the Authority may--
(1) issue subpenas requiring the attendance and
testimony of witnesses and the production of
documentary or other evidence from any place in the
United States; and
(2) administer oaths, take or order the taking of
depositions, order responses to written
interrogatories, examine witnesses, and receive
evidence.
No subpena shall be issued under this section which requires
the disclosure of intramanagement guidance, advice, counsel, or
training within an agency or between an agency and the Office
of Personnel Management.
(b) In the case of contumacy or failure to obey a subpena
issued under subsection (a)(1) of this section, the United
States district court for the judicial district in which the
person to whom the subpena is addressed resides or is served
may issue an order requiring such person to appear at any
designated place to testify or to produce documentary or other
evidence. Any failure to obey the order of the court may be
punished by the court as a contempt thereof.
(c) Witnesses (whether appearing voluntarily or under
subpena) shall be paid the same fee and mileage allowances
which are paid subpenaed witnesses in the courts of the United
States.
Sec. 7133. Compilation and publication of data
(a) The Authority shall maintain a file of its proceedings
and copies of all available agreements and arbitration
decisions, and shall publish the texts of its decisions and the
actions taken by the Panel under section 7119 of this title.
(b) All files maintained under subsection (a) of this
section shall be open to inspection and reproduction in
accordance with the provisions of sections 552 and 552a of this
title.
Sec. 7134. Regulations
The Authority, the General Counsel, the Federal Mediation
and Conciliation Service, the Assistant Secretary of Labor for
Labor Management Relations, and the Panel shall each prescribe
rules and regulations to carry out the provisions of this
chapter applicable to each of them, respectively. Provisions of
subchapter II of chapter 5 of this title shall be applicable to
the issuance, revision, or repeal of any such rule or
regulation.
Sec. 7135. Continuation of existing laws, recognitions, agreements, and
procedures
(a) Nothing contained in this chapter shall preclude--
(1) the renewal or continuation of an exclusive
recognition, certification of an exclusive
representative, or a lawful agreement between an agency
and an exclusive representative of its employees, which
is entered into before the effective date of this
chapter; or
(2) the renewal, continuation, or initial according
of recognition for units of management officials or
supervisors represented by labor organizations which
historically or traditionally represent management
officials or supervisors in private industry and which
hold exclusive recognition for units of such officials
or supervisors in any agency on the effective date of
this chapter.
(b) Policies, regulations, and procedures established under
and decisions issued under Executive Orders 11491, 11616,
11636, 11787, and 11838, or under any other Executive order, as
in effect on the effective date of this chapter, shall remain
in full force and effect until revised or revoked by the
President, or unless superseded by specific provisions of this
chapter or by regulations or decisions issued pursuant to this
chapter.
CHAPTER 72--ANTIDISCRIMINATION; RIGHT TO PETITION CONGRESS
SUBCHAPTER I--ANTIDISCRIMINATION IN EMPLOYMENT
Sec.
7201. Antidiscrimination policy; minority recruitment program.
7202. Marital status.
7203. Handicapping condition.
7204. Other prohibitions.
SUBCHAPTER II--EMPLOYEES' RIGHT TO PETITION CONGRESS
7211. Employees' right to petition Congress
SUBCHAPTER I--ANTIDISCRIMINATION IN EMPLOYMENT
Sec. 7201. Antidiscrimination policy; minority recruitment program
(a) For the purpose of this section--
(1) ``underrepresentation'' means a situation in
which the number of members of a minority group
designation (determined by the Equal Employment
Opportunity Commission in consultation with the Office
of Personnel Management, on the basis of the policy set
forth in subsection (b) of this section) within a
category of civil service employment constitutes a
lower percentage of the total number of employees
within the employment category than the percentage that
the minority constituted within the labor force of the
United States, as determined under the most recent
decennial or mid-decade census, or current population
survey, under title 13, and
(2) ``category of civil service employment''
means--
(A) each grade of the General Schedule
described in section 5104 of this title;
(B) each position subject to subchapter IV
of chapter 53 of this title;
(C) such occupational, professional, or
other groupings (including occupational series)
within the categories established under
subparagraphs (A) and (B) of this paragraph as
the Office determines appropriate.
(b) It is the policy of the United States to insure equal
employment opportunities for employees without discrimination
because of race, color, religion, sex, or national origin. The
President shall use his existing authority to carry out this
policy.
(c) Not later than 180 days after the date of the enactment
of the Civil Service Reform Act of 1978, the Office of
Personnel Management shall, by regulation, implement a minority
recruitment program which shall provide, to the maximum extent
practicable--
(1) that each Executive agency conduct a continuing
program for the recruitment of members of minorities
for positions in the agency to carry out the policy set
forth in subsection (b) in a manner designed to
eliminate underrepresentation of minorities in the
various categories of civil service employment within
the Federal service, with special efforts directed at
recruiting in minority communities, in educational
institutions, and from other sources from which
minorities can be recruited; and
(2) that the Office conduct a continuing program
of--
(A) assistance to agencies in carrying out
programs under paragraph (1) of this
subsection, and
(B) evaluation and oversight and such
recruitment programs to determine their
effectiveness in eliminating such minority
underrepresentation.
(d) Not later than 60 days after the date of the enactment
of the Civil Service Reform Act of 1978, the Equal Employment
Opportunity Commission shall--
(1) establish the guidelines proposed to be used in
carrying out the program required under subsection (c)
of this section; and
(2) make determinations of underrepresentation
which are proposed to be used initially under such
program; and
(3) transmit to the Executive agencies involved, to
the Office of Personnel Management, and to the Congress
the determinations made under paragraph (2) of this
subsection.
(e) Not later than January 31 of each year, the Office
shall prepare and transmit to each House of the Congress a
report on the activities of the Office and of Executive
agencies under subsection (c) of this section, including the
affirmative action plans submitted under section 717 of the
Civil Rights Act of 1964 (42 U.S.C. 2000e-16), the personnel
data file maintained by the Office of Personnel Management, and
any other data necessary to evaluate the effectiveness of the
program for each category of civil service employment and for
each minority group designation, for the preceding fiscal year,
together with recommendations for administrative or legislative
action the Office considers appropriate.
Sec. 7202. Marital status
(a) The President may prescribe rules which shall prohibit,
as nearly as conditions of good administration warrant,
discrimination because of marital status in an Executive agency
or in the competitive service.
(b) Regulations prescribed under any provision of this
title, or under any other provision of law, granting benefits
to employees, shall provide the same benefits for a married
female employee and her spouse and children as are provided for
a married male employee and his spouse and children.
(c) Notwithstanding any other provision of law, any
provision of law providing a benefit to a male Federal employee
or to his spouse or family shall be deemed to provide the same
benefit to a female Federal employee or to her spouse or
family.
Sec. 7203. Handicapping condition
The President may prescribe rules which shall prohibit, as
nearly as conditions of good administration warrant,
discrimination because of handicapping condition in an
Executive agency or in the competitive service with respect to
a position the duties of which, in the opinion of the Office of
Personnel Management, can be performed efficiently by an
individual with a handicapping condition, except that the
employment may not endanger the health or safety of the
individual or others.
Sec. 7204. Other prohibitions
[(a) Repealed. Pub. L. 90-83, Sec. 1(44), Sept. 11, 1967,
81 Stat. 208.]
(b) In the administration of chapter 51, subchapters III
and IV of chapter 53, and sections 305 and 3324 of this title,
discriminations because of race, color, creed, sex, or marital
status is prohibited with respect to an individual or a
position held by an individual.
(c) The Office of Personnel Management may prescribe
regulations necessary for the administration of subsection (b)
of this section.
SUBCHAPTER II--EMPLOYEES' RIGHT TO PETITION CONGRESS
Sec. 7211. Employees' right to petition Congress
The right of employees, individually or collectively, to
petition Congress or a Member of Congress, or to furnish
information to either House of Congress, or to a committee or
Member thereof, may not be interfered with or denied.
CHAPTER 73--SUITABILITY, SECURITY, AND CONDUCT
SUBCHAPTER I--REGULATION OF CONDUCT
Sec.
7301. Presidential regulations.
SUBCHAPTER II--EMPLOYMENT LIMITATIONS
7311. Loyalty and striking.
7312. Employment and clearance; individuals removed for national
security.
7313. Riots and civil disorders.
SUBCHAPTER III--POLITICAL ACTIVITIES
7321. Political participation.
7322. Definitions.
7323. Political activity authorized; prohibitions.
7324. Political activities on duty; prohibition.
7325. Political activity permitted; employees residing in certain
municipalities.
7326. Penalties.
SUBCHAPTER IV--FOREIGN GIFTS AND DECORATIONS
[7341. Repealed.]
7342. Receipt and disposition of foreign gifts and decorations.
SUBCHAPTER V--MISCONDUCT
7351. Gifts to superiors.
7352. Excessive and habitual use of intoxicants.
7353. Gifts to Federal employees.
SUBCHAPTER VI--DRUG ABUSE, ALCOHOL ABUSE, AND ALCOHOLISM
7361. Drug abuse.
7362. Alcohol abuse and alcoholism.
7363. Reports to Congress.
SUBCHAPTER VII--MANDATORY REMOVAL FROM EMPLOYMENT OF CONVICTED LAW
ENFORCEMENT OFFICERS
7371. Mandatory removal from employment of law enforcement officers
convicted of felonies.
SUBCHAPTER I--REGULATION OF CONDUCT
Sec. 7301. Presidential regulations
The President may prescribe regulations for the conduct of
employees in the executive branch.
SUBCHAPTER II--EMPLOYMENT LIMITATIONS
Sec. 7311. Loyalty and striking
An individual may not accept or hold a position in the
Government of the United States or the government of the
District of Columbia if he--
(1) advocates the overthrow of our constitutional
form of government;
(2) is a member of an organization that he knows
advocates the overthrow of our constitutional form of
government;
(3) participates in a strike, or asserts the right
to strike, against the Government of the United States
or the government of the District of Columbia; or
(4) is a member of an organization of employees of
the Government of the United States or of individuals
employed by the government of the District of Columbia
that he knows asserts the right to strike against the
Government of the United States or the government of
the District of Columbia.
Sec. 7312. Employment and clearance; individuals removed for national
security
Removal under section 7532 of this title does not affect
the right of an individual so removed to seek or accept
employment in an agency of the United States other than the
agency from which removed. However, the appointment of an
individual so removed may be made only after the head of the
agency concerned has consulted with the Office of Personnel
Management. The Office, on written request of the head of the
agency or the individual so removed, may determine whether the
individual is eligible for employment in an agency other than
the agency from which removed.
Sec. 7313. Riots and civil disorders
(a) An individual convicted by any Federal, State, or local
court of competent jurisdiction of--
(1) inciting a riot or civil disorder;
(2) organizing, promoting, encouraging, or
participating in a riot or civil disorder;
(3) aiding or abetting any person in committing any
offense specified in clause (1) or (2); or
(4) any offense determined by the head of the
employing agency to have been committed in furtherance
of, or while participating in, a riot or civil
disorder;
shall, if the offense for which he is convicted is a felony, be
ineligible to accept or hold any position in the Government of
the United States or in the government of the District of
Columbia for the five years immediately following the date upon
which his conviction becomes final. Any such individual holding
a position in the Government of the United States or the
government of the District of Columbia on the date his
conviction becomes final shall be removed from such position.
(b) For the purposes of this section, ``felony'' means any
offense for which imprisonment is authorized for a term
exceeding one year.
SUBCHAPTER III--POLITICAL ACTIVITIES
Sec. 7321. Political participation
It is the policy of the Congress that employees should be
encouraged to exercise fully, freely, and without fear of
penalty or reprisal, and to the extent not expressly prohibited
by law, their right to participate or to refrain from
participating in the political processes of the Nation.
Sec. 7322. Definitions
For the purpose of this subchapter--
(1) ``employee'' means any individual, other than
the President and the Vice President, employed or
holding office in--
(A) an Executive agency other than the
General Accounting Office;
(B) a position within the competitive
service which is not in an Executive agency; or
(C) the government of the District of
Columbia, other than the Mayor or a member of
the City Council or the Recorder of Deeds;
but does not include a member of the uniformed
services;
(2) ``partisan political office'' means any office
for which any candidate is nominated or elected as
representing a party any of whose candidates for
Presidential elector received votes in the last
preceding election at which Presidential electors were
selected, but shall exclude any office or position
within a political party or affiliated organization;
and
(3) ``political contribution''--
(A) means any gift, subscription, loan,
advance, or deposit of money or anything of
value, made for any political purpose;
(B) includes any contract, promise, or
agreement, express or implied, whether or not
legally enforceable, to make a contribution for
any political purpose;
(C) includes any payment by any person,
other than a candidate or a political party or
affiliated organization, of compensation for
the personal services of another person which
are rendered to any candidate or political
party or affiliated organization without charge
for any political purpose; and
(D) includes the provision of personal
services for any political purpose.
Sec. 7323. Political activity authorized; prohibitions
(a) Subject to the provisions of subsection (b), an
employee may take an active part in political management or in
political campaigns, except an employee may not--
(1) use his official authority or influence for the
purpose of interfering with or affecting the result of
an election;
(2) knowingly solicit, accept, or receive a
political contribution from any person, unless such
person is--
(A) a member of the same Federal labor
organization as defined under section 7103(4)
of this title or a Federal employee
organization which as of the date of enactment
of the Hatch Act Reform Amendments of 1993 had
a multicandidate political committee (as
defined under section 315(a)(4) of the Federal
Election Campaign Act of 1971 (2 U.S.C.
441a(a)(4)));
(B) not a subordinate employee; and
(C) the solicitation is for a contribution
to the multicandidate political committee (as
defined under section 315(a)(4) of the Federal
Election Campaign Act of 1971 (2 U.S.C.
441a(a)(4))) of such Federal labor organization
as defined under section 7103(4) of this title
or a Federal employee organization which as of
the date of the enactment of the Hatch Act
Reform Amendments of 1993 had a multicandidate
political committee (as defined under section
315(a)(4) of the Federal Election Campaign Act
of 1971 (2 U.S.C. 441a(a)(4))); or
(3) run for the nomination or as a candidate for
election to a partisan political office; or
(4) knowingly solicit or discourage the
participation in any political activity of any person
who--
(A) has an application for any
compensation, grant, contract, ruling, license,
permit, or certificate pending before the
employing office of such employee; or
(B) is the subject of or a participant in
an ongoing audit, investigation, or enforcement
action being carried out by the employing
office of such employee.
(b)(1) An employee of the Federal Election Commission
(except one appointed by the President, by and with the advice
and consent of the Senate), may not request or receive from, or
give to, an employee, a Member of Congress, or an officer of a
uniformed service a political contribution.
(2)(A) No employee described under subparagraph (B) (except
one appointed by the President, by and with the advice and
consent of the Senate), may take an active part in political
management or political campaigns.
(B) The provisions of subparagraph (A) shall apply to--
(i) an employee of--
(I) the Federal Election Commission;
(II) the Federal Bureau of Investigation;
(III) the Secret Service;
(IV) the Central Intelligence Agency;
(V) the National Security Council;
(VI) the National Security Agency;
(VII) the Defense Intelligence Agency;
(VIII) the Merit Systems Protection Board;
(IX) the Office of Special Counsel;
(X) the Office of Criminal Investigation of
the Internal Revenue Service;
(XI) the Office of Investigative Programs
of the United States Customs Service;
(XII) the Office of Law Enforcement of the
Bureau of Alcohol, Tobacco, and Firearms; or
(XIII) the National Imagery and Mapping
Agency; or
(ii) a person employed in a position described
under section 3132(a)(4), 5372, 5372a, or 5372b of
title 5, United States Code.
(3) No employee of the Criminal Division of the Department
of Justice (except one appointed by the President, by and with
the advice and consent of the Senate), may take an active part
in political management or political campaigns.
(4) For purposes of this subsection, the term ``active part
in political management or in a political campaign'' means
those acts of political management or political campaigning
which were prohibited for employees of the competitive service
before July 19, 1940, by determinations of the Civil Service
Commission under the rules prescribed by the President.
(c) An employee retains the right to vote as he chooses and
to express his opinion on political subjects and candidates.
Sec. 7324. Political activities on duty; prohibition
(a) An employee may not engage in political activity--
(1) while the employee is on duty;
(2) in any room or building occupied in the
discharge of official duties by an individual employed
or holding office in the Government of the United
States or any agency or instrumentality thereof;
(3) while wearing a uniform or official insignia
identifying the office or position of the employee; or
(4) using any vehicle owned or leased by the
Government of the United States or any agency or
instrumentality thereof.
(b)(1) An employee described in paragraph (2) of this
subsection may engage in political activity otherwise
prohibited by subsection (a) if the costs associated with that
political activity are not paid for by money derived from the
Treasury of the United States.
(2) Paragraph (1) applies to an employee--
(A) the duties and responsibilities of whose
position continue outside normal duty hours and while
away from the normal duty post; and
(B) who is--
(i) an employee paid from an appropriation
for the Executive Office of the President; or
(ii) an employee appointed by the
President, by and with the advice and consent
of the Senate, whose position is located within
the United States, who determines policies to
be pursued by the United States in relations
with foreign powers or in the nationwide
administration of Federal laws.
Sec. 7325. Political activity permitted; employees residing in certain
municipalities
The Office of Personnel Management may prescribe
regulations permitting employees, without regard to the
prohibitions in paragraphs (2) and (3) of section 7323(a) and
paragraph (2) of section 7323(b) of this title, to take an
active part in political management and political campaigns
involving the municipality or other political subdivision in
which they reside, to the extent the Office considers it to be
in their domestic interest, when--
(1) the municipality or political subdivision is in
Maryland or Virginia and in the immediate vicinity of
the District of Columbia, or is a municipality in which
the majority of voters are employed by the Government
of the United States; and
(2) the Office determines that because of special
or unusual circumstances which exist in the
municipality or political subdivision it is in the
domestic interest of the employees and individuals to
permit that political participation.
Sec. 7326. Penalties
An employee or individual who violates section 7323 or 7324
of this title shall be removed from his position, and funds
appropriated for the position from which removed thereafter may
not be used to pay the employee or individual. However, if the
Merit System Protection Board finds by unanimous vote that the
violation does not warrant removal, a penalty of not less than
30 days' suspension without pay shall be imposed by direction
of the Board.
SUBCHAPTER IV--FOREIGN GIFTS AND DECORATIONS
[Sec. 7341. Repealed. Pub. L. 90-83, Sec. 1(45)(B), Sept. 11, 1967, 81
Stat. 208.]
Sec. 7342. Receipt and disposition of foreign gifts and decorations
(a) For the purpose of this section--
(1) ``employee'' means--
(A) an employee as defined by section 2105
of this title and an officer or employee of the
United States Postal Service or of the Postal
Rate Commission;
(B) an expert or consultant who is under
contract under section 3109 of this title with
the United States or any agency, department, or
establishment thereof, including, in the case
of an organization performing services under
such section, any individual involved in the
performance of such services;
(C) an individual employed by, or occupying
an office or position in, the government of a
territory or possession of the United States or
the government of the District of Columbia;
(D) a member of a uniformed service;
(E) the President and the Vice President;
(F) a Member of Congress as defined by
section 2106 of this title (except the Vice
President) and any Delegate to the Congress;
and
(G) the spouse of an individual described
in subparagraphs (A) through (F) (unless such
individual and his or her spouse are separated)
or a dependent (within the meaning of section
152 of the Internal Revenue Code of 1954) of
such an individual, other than a spouse or
dependent who is an employee under
subparagraphs (A) through (F);
(2) ``foreign government'' means--
(A) any unit of foreign governmental
authority, including any foreign national,
State, local, and municipal government;
(B) any international or multinational
organization whose membership is composed of
any unit of foreign government described in
subparagraph (A); and
(C) any agent or representative of any such
unit or such organization, while acting as
such;
(3) ``gift'' means a tangible or intangible present
(other than a decoration) tendered by, or received
from, a foreign government;
(4) ``decoration'' means an order, device, medal,
badge, insignia, emblem, or award tendered by, or
received from, a foreign government;
(5) ``minimal value'' means a retail value in the
United States at the time of acceptance of $100 or
less, except that--
(A) on January 1, 1981, and at 3 year
intervals thereafter, ``minimal value'' shall
be redefined in regulations prescribed by the
Administrator of General Services, in
consultation with the Secretary of State, to
reflect changes in the consumer price index for
the immediately preceding 3-year period; and
(B) regulations of an employing agency may
define ``minimal value'' for its employees to
be less than the value established under this
paragraph; and
(6) ``employing agency'' means--
(A) the Committee on Standards of Official
Conduct of the House of Representatives, for
Members and employees of the House of
Representatives, except that those
responsibilities specified in subsections
(c)(2)(A), (e)(1), and (g)(2)(B) shall be
carried out by the Clerk of the House;
(B) the Select Committee on Ethics of the
Senate, for Senators and employees of the
Senate, except that those responsibilities
(other than responsibilities involving approval
of the employing agency) specified in
subsections (c)(2), (d), and (g)(2)(B) shall be
carried out by the Secretary of the Senate;
(C) the Administrative Office of the United
States Courts, for judges and judicial branch
employees; and
(D) the department, agency, office, or
other entity in which an employee is employed,
for other legislative branch employees and for
all executive branch employees.
(b) An employee may not--
(1) request or otherwise encourage the tender of a
gift or decoration; or
(2) accept a gift or decoration, other than in
accordance with the provisions of subsections (c) and
(d).
(c)(1) The Congress consents to--
(A) the accepting and retaining by an employee of a
gift of minimal value tendered and received as a
souvenir or mark of courtesy; and
(B) the accepting by an employee of a gift of more
than minimal value when such gift is in the nature of
an educational scholarship or medical treatment or when
it appears that to refuse the gift would likely cause
offense or embarrassment or otherwise adversely affect
the foreign relations of the United States, except
that--
(i) a tangible gift of more than minimal
value is deemed to have been accepted on behalf
of the United States and, upon acceptance,
shall become the property of the United States;
and
(ii) an employee may accept gifts of travel
or expenses for travel taking place entirely
outside the United States (such as
transportation, food, and lodging) of more than
minimal value if such acceptance is
appropriate, consistent with the interests of
the United States, and permitted by the
employing agency and any regulations which may
be prescribed by the employing agency.
(2) Within 60 days after accepting a tangible gift of more
than minimal value (other than a gift described in paragraph
(1)(B)(ii)), an employee shall--
(A) deposit the gift for disposal with his or her
employing agency; or
(B) subject to the approval of the employing
agency, deposit the gift with that agency for official
use.
Within 30 days after terminating the official use of a gift
under subparagraph (B), the employing agency shall forward the
gift to the Administrator of General Services in accordance
with subsection (e)(1) or provide for its disposal in
accordance with subsection (e)(2).
(3) When an employee deposits a gift of more than minimal
value for disposal or for official use pursuant to paragraph
(2), or within 30 days after accepting travel or travel
expenses as provided in paragraph (1)(B)(ii) unless such travel
or travel expenses are accepted in accordance with specific
instructions of his or her employing agency, the employee shall
file a statement with his or her employing agency or its
delegate containing the information prescribed in subsection
(f) for that gift.
(d) The Congress consents to the accepting, retaining, and
wearing by an employee of a decoration tendered in recognition
of active field service in time of combat operations or awarded
for other outstanding or unusually meritorious performance,
subject to the approval of the employing agency of such
employee. Without this approval, the decoration is deemed to
have been accepted on behalf of the United States, shall become
the property of the United States, and shall be deposited by
the employee, within sixty days of acceptance, with the
employing agency for official use, for forwarding to the
Administrator of General Services for disposal in accordance
with subsection (e)(1), or for disposal in accordance with
subsection (e)(2).
(e)(1) Except as provided in paragraph (2), gifts and
decorations that have been deposited with an employing agency
for disposal shall be (A) returned to the donor, or (B)
forwarded to the Administrator of General Services for
transfer, donation, or other disposal in accordance with the
provisions of the Federal Property and Administrative Services
Act of 1949. However, no gift or decoration that has been
deposited for disposal may be sold without the approval of the
Secretary of State, upon a determination that the sale will not
adversely affect the foreign relations of the United States.
Gifts and decorations may be sold by negotiated sale.
(2) Gifts and decorations received by a Senator or an
employee of the Senate that are deposited with the Secretary of
the Senate for disposal, or are deposited for an official use
which has terminated, shall be disposed of by the Commission on
Arts and Antiquities of the United States Senate. Any such gift
or decoration, may be returned by the Commission to the donor
or may be transferred or donated by the Commission, subject to
such terms and conditions as it may prescribe, (A) to an agency
or instrumentality of (i) the United States, (ii) a State,
territory, or possession of the United States, or a political
subdivision of the foregoing, or (iii) the District of
Columbia, or (B) to an organization described in section
501(c)(3) of the Internal Revenue Code of 1954 which is exempt
from taxation under section 501(a) of such Code. Any such gift
or decoration not disposed of as provided in the preceding
sentence shall be forwarded to the Administrator of General
Services for disposal in accordance with paragraph (1). If the
Administrator does not dispose of such gift or decoration
within one year, he shall, at the request of the Commission,
return it to the Commission and the Commission may dispose of
such gift or decoration in such manner as it considers proper,
except that such gift or decoration may be sold only with the
approval of the Secretary of State upon a determination that
the sale will not adversely affect the foreign relations of the
United States.
(f)(1) Not later than January 31 of each year, each
employing agency or its delegate shall compile a listing of all
statements filed during the preceding year by the employees of
that agency pursuant to subsection (c)(3) and shall transmit
such listing to the Secretary of State who shall publish a
comprehensive listing of all such statements in the Federal
Register.
(2) Such listings shall include for each tangible gift
reported--
(A) the name and position of the employee;
(B) a brief description of the gift and the
circumstances justifying acceptance;
(C) the identity, if known, of the foreign
government and the name and position of the individual
who presented the gift;
(D) the date of acceptance of the gift;
(E) the estimated value in the United States of the
gift at the time of acceptance; and
(F) disposition or current location of the gift.
(3) Such listings shall include for each gift of travel or
travel expenses--
(A) the name and position of the employee;
(B) a brief description of the gift and the
circumstances justifying acceptance; and
(C) the identity, if known, of the foreign
government and the name and position of the individual
who presented the gift.
(4) In transmitting such listings for the Central
Intelligence Agency, the Director of Central Intelligence may
delete the information described in subparagraphs (A) and (C)
of paragraphs (2) and (3) if the Director certifies in writing
to the Secretary of State that the publication of such
information could adversely affect United States intelligence
sources.
(g)(1) Each employing agency shall prescribe such
regulations as may be necessary to carry out the purpose of
this section. For all employing agencies in the executive
branch, such regulations shall be prescribed pursuant to
guidance provided by the Secretary of State. These regulations
shall be implemented by each employing agency for its
employees.
(2) Each employing agency shall--
(A) report to the Attorney General cases in which
there is reason to believe that an employee has
violated this section;
(B) establish a procedure for obtaining an
appraisal, when necessary, of the value of gifts; and
(C) take any other actions necessary to carry out
the purpose of this section.
(h) The Attorney General may bring a civil action in any
district court of the United States against any employee who
knowingly solicits or accepts a gift from a foreign government
not consented to by this section or who fails to deposit or
report such gift as required by this section. The court in
which such action is brought may assess a penalty against such
employee in any amount not to exceed the retail value of the
gift improperly solicited or received plus $5,000.
(i) The President shall direct all Chiefs of a United
States Diplomatic Mission to inform their host governments that
it is a general policy of the United States Government to
prohibit United States Government employees from receiving
gifts or decorations of more than minimal value.
(j) Nothing in this section shall be construed to derogate
any regulation prescribed by any employing agency which
provides for more stringent limitations on the receipt of gifts
and decorations by its employees.
(k) The provisions of this section do not apply to grants
and other forms of assistance to which section 108A of the
Mutual Educational and Cultural Exchange Act of 1961 applies.
SUBCHAPTER V--MISCONDUCT
Sec. 7351. Gifts to superiors
(a) An employee may not--
(1) solicit a contribution from another employee
for a gift to an official superior;
(2) make a donation as a gift or give a gift to an
official superior; or
(3) accept a gift from an employee receiving less
pay than himself.
(b) An employee who violates this section shall be subject
to appropriate disciplinary action by the employing agency or
entity.
(c) Each supervising ethics office (as defined in section
7353(d)(1)) is authorized to issue regulations implementing
this section, including regulations exempting voluntary gifts
or contributions that are given or received for special
occasions such as marriage or retirement or under other
circumstances in which gifts are traditionally given or
exchanged.
Sec. 7352. Excessive and habitual use of intoxicants
An individual who habitually uses intoxicating beverages to
excess may not be employed in the competitive service.
Sec. 7353. Gifts to Federal employees
(a) Except as permitted by subsection (b), no Member of
Congress or officer or employee of the executive, legislative,
or judicial branch shall solicit or accept anything of value
from a person--
(1) seeking official action from, doing business
with, or (in the case of executive branch officers and
employees) conducting activities regulated by, the
individual's employing entity; or
(2) whose interests may be substantially affected
by the performance or nonperformance of the
individual's official duties.
(b)(1) Each supervising ethics office is authorized to
issue rules or regulations implementing the provisions of this
section and providing for such reasonable exceptions as may be
appropriate.
(2)(A) Subject to subparagraph (B), a Member, officer, or
employee may accept a gift pursuant to rules or regulations
established by such individual's supervising ethics office
pursuant to paragraph (1).
(B) No gift may be accepted pursuant to subparagraph (A) in
return for being influenced in the performance of any official
act.
(3) Nothing in this section precludes a Member, officer, or
employee from accepting gifts on behalf of the United States
Government or any of its agencies in accordance with statutory
authority.
(c) A Member of Congress or an officer or employee who
violates this section shall be subject to appropriate
disciplinary and other remedial action in accordance with any
applicable laws Executive orders, and rules or regulations.
(d) For purposes of this section--
(1) the term ``supervising ethics office'' means--
(A) the Committee on Standards of Official
conduct of the House of Representatives or the
House of Representatives as a whole, for
Members, officers, and employees of the House
of Representatives;
(B) the Select Committee on Ethics of the
Senate, or the Senate as a whole, for Senators,
officers, and employees of the Senate;
(C) the Judicial Conference of the United
States for judges and judicial branch officers
and employees;
(D) the Office of Government Ethics for all
executive branch officers and employees; and
(E) in the case of legislative branch
officers and employees other than those
specified in subparagraphs (A) and (B), the
committee referred to in either such
subparagraph to which reports filed by such
officers and employees under title I of the
Ethics in Government Act of 1978 are
transmitted under such title, except that the
authority of this section may be delegated by
such committee with respect to such officers
and employees; and
(2) the term ``officer or employee'' means an
individual holding an appointive or elective position
in the executive, legislative, or judicial branch of
Government, other than a Member of Congress.
SUBCHAPTER VI--DRUG ABUSE, ALCOHOL ABUSE, AND ALCOHOLISM
Sec. 7361. Drug abuse
(a) The Office of Personnel Management shall be responsible
for developing, in cooperation with the President, with the
Secretary of Health and Human Services (acting through the
National Institute on Drug Abuse), and with other agencies, and
in accordance with applicable provisions of this subchapter,
appropriate prevention, treatment, and rehabilitation programs
and services for drug abuse among employees. Such agencies are
encouraged to extend, to the extent feasible, such programs and
services to the families of employees and to employees who have
family members who are drug abusers. Such programs and services
shall make optimal use of existing governmental facilities,
services, and skills.
(b) Section 527 of the Public Health Service Act (42 U.S.C.
290ee-3), relating to confidentiality of records, and any
regulations prescribed thereunder, shall apply with respect to
records maintained for the purpose of carrying out this
section.
(c) Each agency shall, with respect to any programs or
services provided by such agency, submit such written reports
as the Office may require in connection with any report
required under section 7363 of this title.
(d) For the purpose of this section, the term ``agency''
means an Executive agency.
Sec. 7362. Alcohol abuse and alcoholism
(a) The Office of Personnel Management shall be responsible
for developing, in cooperation with the Secretary of Health and
Human Services and with other agencies, and in accordance with
applicable provisions of this subpart, appropriate prevention,
treatment, and rehabilitation programs and services for alcohol
abuse and alcoholism among employees. Such agencies are
encouraged to extend, to the extent feasible, such programs and
services to the families of alcoholic employees and to
employees who have family members who are alcoholics. Such
programs and services shall make optimal use of existing
governmental facilities, services, and skills.
(b) Section 523 of the Public Health Service Act (42 U.S.C.
290dd-3), relating to confidentiality of records, and any
regulations, prescribed thereunder, shall apply with respect to
records maintained for the purpose of carrying out this
section.
(c) Each agency shall, with respect to any programs or
services provided by such agency, submit such written reports
as the Office may require in connection with any report
required under section 7363 of this title.
(d) For the purpose of this section, the term ``agency''
means an Executive agency.
Sec. 7363. Reports to Congress
(a) The Office of Personnel Management shall, within 6
months after the date of the enactment of the Federal Employee
Substance Abuse Education and Treatment Act of 1986 and
annually thereafter, submit to each House of Congress a report
containing matters described in subsection (b).
(b) Each report under this section shall include--
(1) a description of any programs or services
provided under section 7361 or 7362 of this title,
including the costs associated with each such program
or service and the source and adequacy of any funding
such program or service;
(2) a description of the levels of participation in
each program and service provided under section 7361 or
7362 of this title, and the effectiveness of such
programs and services;
(3) a description of the training and
qualifications required of the personnel providing any
program or service under section 7361 or 7362 of this
title;
(4) a description of the training given to
supervisory personnel in connection with recognizing
the symptoms of drug or alcohol abuse and the
procedures (including those relating to
confidentiality) under which individuals are referred
for treatment, rehabilitation, or other assistance;
(5) any recommendations or legislation considered
appropriate by the Office and any proposed
administrative actions; and
(6) information describing any other related
activities under section 7904 of this title, and any
other matter which the Office considers appropriate.
SUBCHAPTER VII--MANDATORY REMOVAL FROM EMPLOYMENT OF CONVICTED LAW
ENFORCEMENT OFFICERS
Sec. 7371. Mandatory removal from employment of law enforcement
officers convicted of felonies
(a) In this section, the term--
(1) ``conviction notice date'' means the date on
which an agency that employs a law enforcement officer
has notice that the officer has been convicted of a
felony that is entered by a Federal or State court,
regardless of whether that conviction is appealed or is
subject to appeal; and
(2) ``law enforcement officer'' has the meaning
given that term under section 8331(20) or 8401(17).
(b) Any law enforcement officer who is convicted of a
felony shall be removed from employment as a law enforcement
officer on the last day of the first applicable pay period
following the conviction notice date.
(c)(1) This section does not prohibit the removal of an
individual from employment as a law enforcement officer before
a conviction notice date if the removal is properly effected
other than under this section.
(2) This section does not prohibit the employment of any
individual in any position other than that of a law enforcement
officer.
(d) If the conviction is overturned on appeal, the removal
shall be set aside retroactively to the date on which the
removal occurred, with back pay under section 5596 for the
period during which the removal was in effect, unless the
removal was properly effected other than under this section.
(e)(1) If removal is required under this section, the
agency shall deliver written notice to the employee as soon as
practicable, and not later than 5 calendar days after the
conviction notice date. The notice shall include a description
of the specific reasons for the removal, the date of removal,
and the procedures made applicable under paragraph (2).
(2) The procedures under section 7513(b)(2), (3), and (4),
(c), (d), and (e) shall apply to any removal under this
section. The employee may use the procedures to contest or
appeal a removal, but only with respect to whether--
(A) the employee is a law enforcement officer;
(B) the employee was convicted of a felony; or
(C) the conviction was overturned on appeal.
(3) A removal required under this section shall occur on
the date specified in subsection (b) regardless of whether the
notice required under paragraph (1) of this subsection and the
procedures made applicable under paragraph (2) of this
subsection have been provided or completed by that date.
CHAPTER 75--ADVERSE ACTIONS
SUBCHAPTER I--SUSPENSION OF \1\ 14 DAYS OR LESS
Sec.
7501. Definitions.
7502. Actions covered.
7503. Cause and procedure.
7504. Regulations.
SUBCHAPTER II--REMOVAL, SUSPENSION FOR MORE THAN 14 DAYS, REDUCTION IN
GRADE OR PAY, OR FURLOUGH FOR 30 DAYS OR LESS
7511. Definitions; application.
7512. Actions covered.
7513. Cause and procedure.
7514. Regulations.
SUBCHAPTER III--ADMINISTRATIVE LAW JUDGES
7521. Actions against administrative law judges.
SUBCHAPTER IV--NATIONAL SECURITY
7531. Definitions.
7532. Suspension and removal.
7533. Effect on other statutes.
SUBCHAPTER V--SENIOR EXECUTIVE SERVICE
7541. Definitions.
7542. Actions covered.
7543. Cause and procedure.
SUBCHAPTER I--SUSPENSION FOR 14 DAYS OR LESS
Sec. 7501. Definitions
For the purpose of this subchapter--
---------------------------------------------------------------------------
\1\ So in original. Does not conform to subchapter heading.
---------------------------------------------------------------------------
(1) ``employee'' means an individual in the
competitive service who is not serving a probationary
or trial period under an initial appointment or who has
completed 1 year of current continuous employment in
the same or similar positions under other than a
temporary appointment limited to 1 year or less; and
(2) ``suspension'' means the placing of an
employee, for disciplinary reasons, in a temporary
status without duties and pay.
Sec. 7502. Actions covered
This subchapter applies to a suspension for 14 days or
less, but does not apply to a suspension under section 7521 or
7532 of this title or any action initiated under section 1215
of this title.
Sec. 7503. Cause and procedure
(a) Under regulations prescribed by the Office of Personnel
Management, an employee may be suspended for 14 days or less
for such cause as will promote the efficiency of the service
(including discourteous conduct to the public confirmed by an
immediate supervisor's report of four such instances within any
one-year period or any other pattern of discourteous conduct).
(b) An employee against whom a suspension for 14 days or
less is proposed is entitled to--
(1) an advance written notice stating the specific
reasons for the proposed action;
(2) a reasonable time to answer orally and in
writing and to furnish affidavits and other documentary
evidence in support of the answer;
(3) be represented by an attorney or other
representative; and
(4) a written decision and the specific reasons
therefor at the earliest practicable date.
(c) Copies of the notice of proposed action, the answer of
the employee if written, a summary thereof if made orally, the
notice of decision and reasons therefor, and any order
effecting the suspension, together with any supporting
material, shall be maintained by the agency and shall be
furnished to the Merit Systems Protection Board upon its
request and to the employee affected upon the employee's
request.
Sec. 7504. Regulations
The Office of Personnel Management may prescribe
regulations to carry out the purpose of this subchapter.
SUBCHAPTER II--REMOVAL, SUSPENSION FOR MORE THAN 14 DAYS, REDUCTION IN
GRADE OR PAY, OR FURLOUGH FOR 30 DAYS OR LESS
Sec. 7511. Definitions; application
(a) For the purpose of this subchapter--
(1) ``employee'' means--
(A) an individual in the competitive
service--
(i) who is not serving a
probationary or trial period under an
initial appointment; or
(ii) who has completed 1 year of
current continuous service under other
than a temporary appointment limited to
1 year or less;
(B) a preference eligible in the excepted
service who has completed 1 year of current
continuous service in the same or similar
positions--
(i) in an Executive agency; or
(ii) in the United States Postal
Service or Postal Rate Commission; and
(C) an individual in the excepted service
(other than a preference eligible)--
(i) who is not serving a
probationary or trial period under an
initial appointment pending conversion
to the competitive service; or
(ii) who has completed 2 years of
current continuous service in the same
or similar positions in an Executive
agency under other than a temporary
appointment limited to 2 years or less;
(2) ``suspension'' has the same meaning as set
forth in section 7501(2) of this title;
(3) ``grade'' means the rate of basic pay fixed by
law or administrative action for the position held by
an employee; and
(4) ``pay'' means the rate of basic pay fixed by
law or administrative action for the position held by
an employee; and
(5) ``furlough'' means the placing of an employee
in a temporary status without duties and pay because of
lack of work or funds or other nondisciplinary reasons.
(b) This subchapter does not apply to an employee--
(1) whose appointment is made by and with the
advice and consent of the Senate;
(2) whose position has been determined to be of a
confidential, policy-determining, policy-making or
policy-advocating character by--
(A) the President for a position that the
President has excepted from the competitive
service;
(B) the Office of Personnel Management for
a position that the Office has excepted from
the competitive service; or
(C) the President or the head of an agency
for a position excepted from the competitive
service by statute;
(3) whose appointment is made by the President;
(4) who is receiving an annuity from the Civil
Service Retirement and Disability Fund, or the Foreign
Service Retirement and Disability Fund, based on the
service of such employee;
(5) who is described in section 8337(h)(1),
relating to technicians in the National Guard;
(6) who is a member of the Foreign Service, as
described in section 103 of the Foreign Service Act of
1980;
(7) whose position is within the Central
Intelligence Agency or the General Accounting Office;
(8) whose position is within the United States
Postal Service, the Postal Rate Commission, the Panama
Canal Commission, the Tennessee Valley Authority, the
Federal Bureau of Investigation, an intelligence
component of the Department of Defense (as defined in
section 1614 of title 10), or an intelligence activity
of a military department covered under subchapter I of
chapter 83 of title 10, unless subsection (a)(1)(B) of
this section or section 1005(a) of title 39 is the
basis for this subchapter's applicability;
(9) who is described in section 5102(c)(11) of this
title; or
(10) who holds a position within the Veterans
Health Administration which has been excluded from the
competitive service by or under a provision of title
38, unless such employee was appointed to such position
under section 7401(3) of such title.
(c) The Office may provide for the application of this
subchapter to any position or group of positions excepted from
the competitive service by regulation of the Office which is
not otherwise covered by this subchapter.
Sec. 7512. Actions covered
This subchapter applies to--
(1) a removal;
(2) a suspension for more than 14 days;
(3) a reduction in grade;
(4) a reduction in pay; and
(5) a furlough of 30 days or less;
but does not apply to--
(A) a suspension or removal under section 7532 of
this title,
(B) a reduction-in-force action under section 3502
of this title,
(C) the reduction in grade of a supervisor or
manager who has not completed the probationary period
under section 3321(a)(2) of this title if such
reduction is to the grade held immediately before
becoming such a supervisor or manager,
(D) a reduction in grade or removal under section
4303 of this title, or
(E) an action initiated under section 1215 or 7521
of this title.
Sec. 7513. Cause and procedure
(a) Under regulations prescribed by the Office of Personnel
Management, an agency may take an action covered by this
subchapter against an employee only for such cause as will
promote the efficiency of the service.
(b) An employee against whom an action is proposed is
entitled to--
(1) at least 30 days' advance written notice,
unless there is reasonable cause to believe the
employee has committed a crime for which a sentence of
imprisonment may be imposed, stating the specific
reasons for the proposed action;
(2) a reasonable time, but not less than 7 days, to
answer orally and in writing and to furnish affidavits
and other documentary evidence in support of the
answer;
(3) be represented by an attorney or other
representative; and
(4) a written decision and the specific reasons
therefor at the earliest practicable date.
(c) An agency may provide, by regulation, for a hearing
which may be in lieu of or in addition to the opportunity to
answer provided under subsection (b)(2) of this section.
(d) An employee against whom an action is taken under this
section is entitled to appeal to the Merit Systems Protection
Board under section 7701 of this title.
(e) Copies of the notice of proposed action, the answer of
the employee when written, a summary thereof when made orally,
the notice of decision and reasons therefor, and any order
effecting an action covered by this subchapter, together with
any supporting material, shall be maintained by the agency and
shall be furnished to the Board upon its request and to the
employee affected upon the employee's request.
Sec. 7514. Regulations
The Office of Personnel Management may prescribe
regulations to carry out the purpose of this subchapter, except
as it concerns any matter with respect to which the Merit
Systems Protection Board may prescribe regulations.
SUBCHAPTER III--ADMINISTRATIVE LAW JUDGES
Sec. 7521. Actions against administrative law judges
(a) An action may be taken against an administrative law
judge appointed under section 3105 of this title by the agency
in which the administrative law judge is employed only for good
cause established and determined by the Merit Systems
Protection Board on the record after opportunity for hearing
before the Board.
(b) The actions covered by this section are--
(1) a removal;
(2) a suspension;
(3) a reduction in grade;
(4) a reduction in pay; and
(5) a furlough of 30 days or less;
but do not include--
(A) a suspension or removal under section 7532 of
this title;
(B) a reduction-in-force action under section 3502
of this title; or
(C) any action initiated under section 1215 of this
title.
SUBCHAPTER IV--NATIONAL SECURITY
Sec. 7531. Definitions
For the purpose of this subchapter, ``agency'' means--
(1) the Department of State;
(2) the Department of Commerce;
(3) the Department of Justice;
(4) the Department of Defense;
(5) a military department;
(6) the Coast Guard;
(7) the Atomic Energy Commission;
(8) the National Aeronautics and Space
Administration; and
(9) such other agency of the Government of the
United States as the President designates in the best
interests of national security.
The President shall report any designation to the Committees on
the Armed Services of the Congress.
Sec. 7532. Suspension and removal
(a) Notwithstanding other statutes, the head of an agency
may suspend without pay an employee of his agency when he
considers that action necessary in the interests of national
security. To the extent that the head of the agency determines
that the interests of national security permit, the suspended
employee shall be notified of the reasons for the suspension.
Within 30 days after the notification, the suspended employee
is entitled to submit to the official designated by the head of
the agency statements or affidavits to show why he should be
restored to duty.
(b) Subject to subsection (c) of this section, the head of
an agency may remove an employee suspended under subsection (a)
of this section when, after such investigation and review as he
considers necessary, he determines that removal is necessary or
advisable in the interests of national security. The
determination of the head of the agency is final.
(c) An employee suspended under subsection (a) of this
section who--
(1) has a permanent or indefinite appointment;
(2) has completed his probationary or trial period;
and
(3) is a citizen of the United States;
is entitled, after suspension and before removal, to--
(A) a written statement of the charges against him
within 30 days after suspension, which may be amended
within 30 days thereafter and which shall be stated as
specifically as security considerations permit;
(B) an opportunity within 30 days thereafter, plus
an additional 30 days if the charges are amended, to
answer the charges and submit affidavits;
(C) a hearing, at the request of the employee, by
an agency authority duly constituted for this purpose;
(D) a review of his case by the head of the agency
or his designee, before a decision adverse to the
employee is made final; and
(E) a written statement of the decision of the head
of the agency.
Sec. 7533. Effect on other statutes
This subchapter does not impair the powers vested in the
Atomic Energy Commission by chapter 23 of title 42, or the
requirement in section 2201(d) of title 42 that adequate
provision be made for administrative review of a determination
to dismiss an employee of the Atomic Energy Commission.
SUBCHAPTER V--SENIOR EXECUTIVE SERVICE
Sec. 7541. Definitions
For the purpose of this subchapter--
(1) ``employee'' means a career appointee in the
Senior Executive Service who--
(A) has completed the probationary period
prescribed under section 3393(d) of this title;
or
(B) was covered by the provisions of
subchapter II of this chapter immediately
before appointment to the Senior Executive
Service; and
(2) ``suspension'' has the meaning set forth in
section 7501(2) of this title.
Sec. 7542. Actions covered
This subchapter applies to a removal from the civil service
or suspension for more than 14 days, but does not apply to an
action initiated under section 1215 of this title, to a
suspension or removal under section 7532 of this title, or to a
removal under section 3592 or 3595 of this title.
Sec. 7543. Cause and procedure
(a) Under regulations prescribed by the Office of Personnel
Management, an agency may take an action covered by this
subchapter against an employee only for misconduct, neglect of
duty, malfeasance, or failure to accept a directed reassignment
or to accompany a position in a transfer of function.
(b) An employee against whom an action covered by this
subchapter is proposed is entitled to--
(1) at least 30 days' advance written notice,
unless there is reasonable cause to believe that the
employee has committed a crime for which a sentence of
imprisonment can be imposed, stating specific reasons
for the proposed action;
(2) a reasonable time, but not less than 7 days, to
answer orally and in writing and to furnish affidavits
and other documentary evidence in support of the
answer;
(3) be represented by an attorney or other
representative; and
(4) a written decision and specific reasons
therefor at the earliest practicable date.
(c) An agency may provide, by regulation, for a hearing
which may be in lieu of or in addition to the opportunity to
answer provided under subsection (b)(2) of this section.
(d) An employee against whom an action is taken under this
section is entitled to appeal to the Merit Systems Protection
Board under section 7701 of this title.
(e) Copies of the notice of proposed action, the answer of
the employee when written, and a summary thereof when made
orally, the notice of decision and reasons therefor, and any
order effecting an action covered by this subchapter, together
with any supporting material, shall be maintained by the agency
and shall be furnished to the Merit Systems Protection Board
upon its request and to the employee affected upon the
employee's request.
CHAPTER 77--APPEALS
Sec.
7701. Appellate procedures.
7702. Actions involving discrimination.
7703. Judicial review of decisions of the Merit Systems Protection
Board.
Sec. 7701. Appellate procedures
(a) An employee, or applicant for employment, may submit an
appeal to the Merit Systems Protection Board from any action
which is appealable to the Board under any law, rule, or
regulation. An appellant shall have the right--
(1) to a hearing for which a transcript will be
kept; and
(2) to be represented by an attorney or other
representative.
Appeals shall be processed in accordance with regulations
prescribed by the Board.
(b)(1) The Board may hear any case appealed to it or may
refer the case to an administrative law judge appointed under
section 3105 of this title or other employee of the Board
designated by the Board to hear such cases, except that in any
case involving a removal from the service, the case shall be
heard by the Board, an employee experienced in hearing appeals,
or an administrative law judge. The Board, administrative law
judge, or other employee (as the case may be) shall make a
decision after receipt of the written representations of the
parties to the appeal and after opportunity for a hearing under
subsection (a)(1) of this section. A copy of the decision shall
be furnished to each party to the appeal and to the Office of
Personnel Management.
(2)(A) If an employee or applicant for employment is the
prevailing party in an appeal under this subsection, the
employee or applicant shall be granted the relief provided in
the decision effective upon the making of the decision, and
remaining in effect pending the outcome of any petition for
review under subsection (e), unless--
(i) the deciding official determines that the
granting of such relief is not appropriate; or
(ii)(I) the relief granted in the decision provides
that such employee or applicant shall return or be
present at the place of employment during the period
pending the outcome of any petition for review under
subsection (e); and
(II) the employing agency, subject to the
provisions of subparagraph (B), determines that the
return or presence of such employee or applicant is
unduly disruptive to the work environment.
(B) If an agency makes a determination under subparagraph
(A)(ii)(II) that prevents the return or presence of an employee
at the place of employment, such employee shall receive pay,
compensation, and all other benefits as terms and conditions of
employment during the period pending the outcome of any
petition for review under subsection (e).
(C) Nothing in the provisions of this paragraph may be
construed to require any award of back pay or attorney fees be
paid before the decision is final.
(3) With respect to an appeal from an adverse action
covered by subchapter V of chapter 75, authority to mitigate
the personnel action involved shall be available, subject to
the same standards as would apply in an appeal involving an
action covered by subchapter II of chapter 75 with respect to
which mitigation authority under this section exists.
(c)(1) Subject to paragraph (2) of this subsection, the
decision of the agency shall be sustained under subsection (b)
only if the agency's decision--
(A) in the case of an action based on unacceptable
performance described in section 4303 or a removal from
the Senior Executive Service for failure to be
recertified under section 3393a, is supported by
substantial evidence; or
(B) in any other case, is supported by a
preponderance of the evidence.
(2) Notwithstanding paragraph (1), the agency's decision
may not be sustained under subsection (b) of this section if
the employee or applicant for employment--
(A) shows harmful error in the application of the
agency's procedures in arriving at such decision;
(B) shows that the decision was based on any
prohibited personnel practice described in section
2302(b) of this title; or
(C) shows that the decision was not in accordance
with law.
(d)(1) In any case in which--
(A) the interpretation or application of any civil
service law, rule, or regulation, under the
jurisdiction of the Office of Personnel Management is
at issue in any proceeding under this section; and
(B) the Director of the Office of Personnel
Management is of the opinion that an erroneous decision
would have a substantial impact on any civil service
law, rule, or regulation under the jurisdiction of the
Office;
the Director may as a matter of right intervene or otherwise
participate in that proceeding before the Board. If the
Director exercises his right to participate in a proceeding
before the Board, he shall do so as early in the proceeding as
practicable. Nothing in this title shall be construed to permit
the Office to interfere with the independent decisionmaking of
the Merit Systems Protection Board.
(2) The Board shall promptly notify the Director whenever
the interpretation of any civil service law, rule, or
regulation under the jurisdiction of the Office is at issue in
any proceeding under this section.
(e)(1) Except as provided in section 7702 of this title,
any decision under subsection (b) of this section shall be
final unless--
(A) a party to the appeal or the Director petitions
the Board for review within 30 days after the receipt
of the decision; or
(B) the Board reopens and reconsiders a case on its
own motion.
The Board, for good cause shown, may extend the 30-day period
referred to in subparagraph (A) of this paragraph. One member
of the Board may grant a petition or otherwise direct that a
decision be reviewed by the full Board. The preceding sentence
shall not apply if, by law, a decision of an administrative law
judge is required to be acted upon by the Board.
(2) The Director may petition the Board for a review under
paragraph (1) of this subsection only if the Director is of the
opinion that the decision is erroneous and will have a
substantial impact on any civil service law, rule, or
regulation under the jurisdiction of the Office.
(f) The Board, or an administrative law judge or other
employee of the Board designated to hear a case, may--
(1) consolidate appeals filed by two or more
appellants, or
(2) join two or more appeals filed by the same
appellant and hear and decide them concurrently,
if the deciding official or officials hearing the cases are of
the opinion that the action could result in the appeals' being
processed more expeditiously and would not adversely affect any
party.
(g)(1) Except as provided in paragraph (2) of this
subsection, the Board, or an administrative law judge or other
employee of the Board designated to hear a case, may require
payment by the agency involved of reasonable attorney fees
incurred by an employee or applicant for employment if the
employee or applicant is the prevailing party and the Board,
administrative law judge, or other employee (as the case may
be) determines that payment by the agency is warranted in the
interest of justice, including any case in which a prohibited
personnel practice was engaged in by the agency or any case in
which the agency's action was clearly without merit.
(2) If an employee or applicant for employment is the
prevailing party and the decision is based on a finding of
discrimination prohibited under section 2302(b)(1) of this
title, the payment of attorney fees shall be in accordance with
the standards prescribed under section 706(k) of the Civil
Rights Act of 1964 (42 U.S.C. 2000e-5(k)).
(h) The Board may, by regulation, provide for one or more
alternative methods for settling matters subject to the
appellate jurisdiction of the Board which shall be applicable
at the election of an applicant for employment or of an
employee who is not in a unit for which a labor organization is
accorded exclusive recognition, and shall be in lieu of other
procedures provided for under this section. A decision under
such a method shall be final, unless the Board reopens and
reconsiders a case at the request of the Office of Personnel
Management under subsection (e) of this section.
(i)(1) Upon the submission of any appeal to the Board under
this section, the Board, through reference to such categories
of cases, or other means, as it determines appropriate, shall
establish and announce publicly the date by which it intends to
complete action on the matter. Such date shall assure
expeditious consideration of the appeal, consistent with the
interests of fairness and other priorities of the Board. If the
Board fails to complete action on the appeal by the announced
date, and the expected delay will exceed 30 days, the Board
shall publicly announce the new date by which it intends to
complete action on the appeal.
(2) Not later than March 1 of each year, the Board shall
submit to the Congress a report describing the number of
appeals submitted to it during the preceding fiscal year, the
number of appeals on which it completed action during that
year, and the number of instances during that year in which it
failed to conclude a proceeding by the date originally
announced, together with an explanation of the reasons
therefor.
(3) The Board shall by rule indicate any other category of
significant Board action which the Board determines should be
subject to the provisions of this subsection.
(4) It shall be the duty of the Board, an administrative
law judge, or employee designated by the Board to hear any
proceeding under this section to expedite to the extent
practicable that proceeding.
(j) In determining the appealability under this section of
any case involving a removal from the service (other than the
removal of a reemployed annuitant), neither an individual's
status under any retirement system established by or under
Federal statute nor any election made by such individual under
any such system may be taken into account.
(k) The Board may prescribe regulations to carry out the
purpose of this section.
Sec. 7702. Actions involving discrimination
(a)(1) Notwithstanding any other provision of law, and
except as provided in paragraph (2) of this subsection, in the
case of any employee or applicant for employment who--
(A) has been affected by an action which the
employee or applicant may appeal to the Merit Systems
Protection Board, and
(B) alleges that a basis for the action was
discrimination prohibited by--
(i) section 717 of the Civil Rights Act of
1964 (42 U.S.C. 2000e-16),
(ii) section 6(d) of the Fair Labor
Standards Act of 1938 (29 U.S.C. 206(d)),
(iii) section 501 of the Rehabilitation Act
of 1973 (29 U.S.C. 791),
(iv) sections 12 and 15 of the Age
Discrimination in Employment Act of 1967 (29
U.S.C. 631, 633a), or
(v) any rule, regulation, or policy
directive prescribed under any provision of law
described in clauses (i) through (iv) of this
subparagraph,
the Board shall, within 120 days of the filing of the appeal,
decide both the issue of discrimination and the appealable
action in accordance with the Board's appellate procedures
under section 7701 of this title and this section.
(2) In any matter before an agency which involves--
(A) any action described in paragraph (1)(A) of
this subsection; and
(B) any issue of discrimination prohibited under
any provision of law described in paragraph (1)(B) of
this subsection;
the agency shall resolve such matter within 120 days. The
decision of the agency in any such matter shall be a judicially
reviewable action unless the employee appeals the matter to the
Board under paragraph (1) of this subsection.
(3) Any decision of the Board under paragraph (1) of this
subsection shall be a judicially reviewable action as of--
(A) the date of issuance of the decision if the
employee or applicant does not file a petition with the
Equal Employment Opportunity Commission under
subsection (b)(1) of this section, or
(B) the date the Commission determines not to
consider the decision under subsection (b)(2) of this
section.
(b)(1) An employee or applicant may, within 30 days after
notice of the decision of the Board under subsection (a)(1) of
this section, petition the Commission to consider the decision.
(2) The Commission shall, within 30 days after the date of
the petition, determine whether to consider the decision. A
determination of the Commission not to consider the decision
may not be used as evidence with respect to any issue of
discrimination in any judicial proceeding concerning that
issue.
(3) If the Commission makes a determination to consider the
decision, the Commission shall, within 60 days after the date
of the determination, consider the entire record of the
proceedings of the Board and, on the basis of the evidentiary
record before the Board, as supplemented under paragraph (4) of
this subsection, either--
(A) concur in the decision of the Board; or
(B) issue in writing another decision which differs
from the decision of the Board to the extent that the
Commission finds that, as a matter of law--
(i) the decision of the Board constitutes
an incorrect interpretation of any provision of
any law, rule, regulation, or policy directive
referred to in subsection (a)(1)(B) of this
section, or
(ii) the decision involving such provision
is not supported by the evidence in the record
as a whole.
(4) In considering any decision of the Board under this
subsection, the Commission may refer the case to the Board, or
provide on its own, for the taking (within such period as
permits the Commission to make a decision within the 60-day
period prescribed under this subsection) of additional evidence
to the extent it considers necessary to supplement the record.
(5)(A) If the Commission concurs pursuant to paragraph
(3)(A) of this subsection in the decision of the Board, the
decision of the Board shall be a judicially reviewable action.
(B) If the Commission issues any decision under paragraph
(3)(B) of this subsection, the Commission shall immediately
refer the matter to the Board.
(c) Within 30 days after receipt by the Board of the
decision of the Commission under subsection (b)(5)(B) of this
section, the Board shall consider the decision and--
(1) concur and adopt in whole the decision of the
Commission; or
(2) to the extent that the Board finds that, as a
matter of law, (A) the Commission decision constitutes
an incorrect interpretation of any provision of any
civil service law, rule, regulation or policy
directive, or (B) the Commission decision involving
such provision is not supported by the evidence in the
record as a whole--
(i) reaffirm the initial decision of the
Board; or
(ii) reaffirm the initial decision of the
Board with such revisions as it determines
appropriate.
If the Board takes the action provided under paragraph (1), the
decision of the Board shall be a judicially reviewable action.
(d)(1) If the Board takes any action under subsection
(c)(2) of this section, the matter shall be immediately
certified to a special panel described in paragraph (6) of this
subsection. Upon certification, the Board shall, within 5 days
(excluding Saturdays, Sundays, and holidays), transmit to the
special panel the administrative record in the proceeding,
including--
(A) the factual record compiled under this section,
(B) the decisions issued by the Board and the
Commission under this section, and
(C) any transcript of oral arguments made, or legal
briefs filed, before the Board or the Commission.
(2)(A) The special panel shall, within 45 days after a
matter has been certified to it, review the administrative
record transmitted to it and, on the basis of the record,
decide the issues in dispute and issue a final decision which
shall be a judicially reviewable action.
(B) The special panel shall give due deference to the
respective expertise of the Board and Commission in making its
decision.
(3) The special panel shall refer its decision under
paragraph (2) of this subsection to the Board and the Board
shall order any agency to take any action appropriate to carry
out the decision.
(4) The special panel shall permit the employee or
applicant who brought the complaint and the employing agency to
appear before the panel to present oral arguments and to
present written arguments with respect to the matter.
(5) Upon application by the employee or applicant, the
Commission may issue such interim relief as it determines
appropriate to mitigate any exceptional hardship the employee
or applicant might otherwise incur as a result of the
certification of any matter under this subsection, except that
the Commission may not stay, or order any agency to review on
an interim basis, the action referred to in subsection (a)(1)
of this section.
(6)(A) Each time the Board takes any action under
subsection (c)(2) of this section, a special panel shall be
convened which shall consist of--
(i) an individual appointed by the President, by
and with the advice and consent of the Senate, to serve
for a term of 6 years as chairman of the special panel
each time it is convened;
(ii) one member of the Board designated by the
Chairman of the Board each time a panel is convened;
and
(iii) one member of the Commission designated by
the Chairman of the Commission each time a panel is
convened.
The chairman of the special panel may be removed by the
President only for inefficiency, neglect of duty, or
malfeasance in office.
(B) The chairman is entitled to pay at a rate equal to the
maximum annual rate of basic pay payable under the General
Schedule for each day he is engaged in the performance of
official business on the work of the special panel.
(C) The Board and the Commission shall provide such
administrative assistance to the special panel as may be
necessary and, to the extent practicable, shall equally divide
the costs of providing the administrative assistance.
(e)(1) Notwithstanding any other provision of law, if at
any time after--
(A) the 120th day following the filing of any
matter described in subsection (a)(2) of this section
with an agency, there is not judicially reviewable
action under this section or an appeal under paragraph
(2) of this subsection;
(B) the 120th day following the filing of an appeal
with the Board under subsection (a)(1) of this section,
there is no judicially reviewable action (unless such
action is not as the result of the filing of a petition
by the employee under subsection (b)(1) of this
section); or
(C) the 180th day following the filing of a
petition with the Equal Employment Opportunity
Commission under subsection (b)(1) of this section,
there is no final agency action under subsection (b),
(c), or (d) of this section;
an employee shall be entitled to file a civil action to the
same extent and in the same manner as provided in section
717(c) of the Civil Rights Act of 1964 (42 U.S.C. 2000e-16(c)),
section 15(c) of the Age Discrimination in Employment Act of
1967 (29 U.S.C. 633a(c)), or section 16(b) of the Fair Labor
Standards Act of 1938 (29 U.S.C. 216(b)).
(2) If, at any time after the 120th day following the
filing of any matter described in subsection (a)(2) of this
section with an agency, there is no judicially reviewable
action, the employee may appeal the matter to the Board under
subsection (a)(1) of this section.
(3) Nothing in this section shall be construed to affect
the right to trial de novo under any provision of law described
in subsection (a)(1) of this section after a judicially
reviewable action, including the decision of an agency under
subsection (a)(2) of this section.
(f) In any case in which an employee is required to file
any action, appeal, or petition under this section and the
employee timely files the action, appeal, or petition with an
agency other than the agency with which the action, appeal, or
petition is to be filed, the employee shall be treated as
having timely filed the action, appeal, or petition as of the
date it is filed with the proper agency.
Sec. 7703. Judicial review of decisions of the Merit Systems Protection
Board
(a)(1) Any employee or applicant for employment adversely
affected or aggrieved by a final order or decision of the Merit
Systems Protection Board may obtain judicial review of the
order or decision.
(2) The Board shall be named respondent in any proceeding
brought pursuant to this subsection, unless the employee or
applicant for employment seeks review of a final order or
decision on the merits on the underlying personnel action or on
a request for attorney fees, in which case the agency
responsible for taking the personnel action shall be the
respondent.
(b)(1) Except as provided in paragraph (2) of this
subsection, a petition to review a final order or final
decision of the Board shall be filed in the United States Court
of Appeals for the Federal Circuit. Notwithstanding any other
provision of law, any petition for review must be filed within
60 days after the date the petitioner received notice of the
final order or decision of the Board.
(2) Cases of discrimination subject to the provisions of
section 7702 of this title shall be filed under section 717(c)
of the Civil Rights Act of 1964 (42 U.S.C. 2000e-16(c)),
section 15(c) of the Age Discrimination in Employment Act of
1967 (29 U.S.C. 633a(c)), and section 16(b) of the Fair Labor
Standards Act of 1938, as amended (29 U.S.C. 216(b)), as
applicable. Notwithstanding any other provision of law, any
such case filed under any such section must be filed within 30
days after the date the individual filing the case received
notice of the judicially reviewable action under such section
7702.
(c) In any case filed in the United States Court of Appeals
for the Federal Circuit, the court shall review the record and
hold unlawful and set aside any agency action, findings, or
conclusions found to be--
(1) arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with law;
(2) obtained without procedures required by law,
rule, or regulation having been followed; or
(3) unsupported by substantial evidence;
except that in the case of discrimination brought under any
section referred to in subsection (b)(2) of this section, the
employee or applicant shall have the right to have the facts
subject to trial de novo by the reviewing court.
(d) The Director of the Office of Personnel Management may
obtain review of any final order or decision of the Board by
filing, within 60 days after the date the Director received
notice of the final order or decision of the Board, a petition
for judicial review in the United States Court of Appeals for
the Federal Circuit if the Director determines, in his
discretion, that the Board erred in interpreting a civil
service law, rule, or regulation affecting personnel management
and that the Board's decision will have a substantial impact on
a civil service law, rule, regulation, or policy directive. If
the Director did not intervene in a matter before the Board,
the Director may not petition for review of a Board decision
under this section unless the Director first petitions the
Board for a reconsideration of its decision, and such petition
is denied. In addition to the named respondent, the Board and
all other parties to the proceedings before the Board shall
have the right to appear in the proceeding before the Court of
Appeals. The granting of the petition for judicial review shall
be at the discretion of the Court of Appeals.
CHAPTER 79--SERVICES TO EMPLOYEES
Sec.
7901. Health service programs.
7902. Safety programs.
7903. Protective clothing and equipment.
7904. Employee assistance programs relating to drug abuse and alcohol
abuse.
7905. Programs to encourage commuting by means other than single-
occupancy motor vehicles.
Sec. 7901. Health service programs
(a) The head of each agency of the Government of the United
States may establish, within the limits of appropriations
available, a health service program to promote and maintain the
physical and mental fitness of employees under his
jurisdiction.
(b) A health service program may be established by contract
or otherwise, but only--
(1) after consultation with the Secretary of
Health, Education, and Welfare and consideration of its
recommendations; and
(2) in localities where there are a sufficient
number of employees to warrant providing the service.
(c) A health service program is limited to--
(1) treatment of on-the-job illness and dental
conditions requiring emergency attention;
(2) preemployment and other examinations;
(3) referral of employees to private physicians and
dentists; and
(4) preventive programs relating to health.
(d) The Secretary of Health, Education, and Welfare, on
request, shall review a health service program conducted under
this section and shall submit comment and recommendations to
the head of the agency concerned.
(e) When this section authorizes the use of the
professional services of physicians, that authorization
includes the use of the professional services of surgeons and
osteopathic practitioners within the scope of their practice as
defined by State law.
(f) The health programs conducted by the Tennessee Valley
Authority are not affected by this section.
Sec. 7902. Safety programs
(a) For the purpose of this section--
(1) ``employee'' means an employee as defined by
section 8101 of this title; and
(2) ``agency'' means an agency in any branch of the
Government of the United States (not including the
United States Postal Service), including an
instrumentality wholly owned by the United States, and
the government of the District of Columbia.
(b) The Secretary of Labor shall carry out a safety program
under section 941(b)(1) of title 33 covering the employment of
each employee of an agency.
(c) The President may--
(1) establish by Executive order a safety council
composed of representatives of the agencies and of
labor organizations representing employees to serve as
an advisory body to the Secretary in furtherance of the
safety program carried out by the Secretary under
subsection (b) of this section; and
(2) undertake such other measures as he considers
proper to prevent injuries and accidents to employees
of the agencies.
(d) The head of each agency shall develop and support
organized safety promotion to reduce accidents and injuries
among employees of his agency, encourage safe practices, and
eliminate work hazards and health risks.
(e) Each agency shall--
(1) keep a record of injuries and accidents to its
employees whether or not they result in loss of time or
in the payment or furnishing of benefits; and
(2) make such statistical or other reports on such
forms as the Secretary may prescribe by regulation.
Sec. 7903. Protective clothing and equipment
Appropriations available for the procurement of supplies
and material or equipment are available for the purchase and
maintenance of special clothing and equipment for the
protection of personnel in the performance of their assigned
tasks. For the purpose of this section, ``appropriations''
includes funds made available by statute under section 9104 of
title 31.
Sec. 7904. Employee assistance programs relating to drug abuse and
alcohol abuse
(a) The head of each Executive agency shall, in a manner
consistent with guidelines prescribed under subsection (b) of
this section and applicable provisions of law, establish
appropriate prevention, treatment, and rehabilitation programs
and services for drug abuse and alcohol abuse for employees in
or under such agency.
(b) The Office of Personnel Management shall, after such
consultations as the Office considers appropriate, prescribe
guidelines for programs and services under this section.
(c) The Secretary of Health and Human Services, on request
of the head of an Executive agency, shall review any program or
service provided under this section and shall submit comments
and recommendations to the head of the agency concerned.
Sec. 7905. Programs to encourage commuting by means other than single-
occupancy motor vehicles
(a) For the purpose of this section--
(1) the term ``employee'' means an employee as
defined by section 2105 and a member of a uniformed
service;
(2) the term ``agency'' means--
(A) an Executive agency;
(B) an entity of the legislative branch;
and
(C) the judicial branch;
(3) the term ``entity of the legislative branch''
means the House of Representatives, the Senate, the
Office of the Architect of the Capitol (including the
Botanic Garden), the Capitol Police, the Congressional
Budget Office, the Copyright Royalty Tribunal, the
Government Printing Office, the Library of Congress,
and the Office of Technology Assessment; and
(4) the term ``transit pass'' means a transit pass
as defined by section 132(f)(5) of the Internal Revenue
Code of 1986.
(b)(1) The head of each agency may establish a program to
encourage employees of such agency to use means other than
single-occupancy motor vehicles to commute to or from work.
(2) A program established under this section may involve
such options as--
(A) transit passes (including cash reimbursements
therefor, but only if a voucher or similar item which
may be exchanged only for a transit pass is not readily
available for direct distribution by the agency);
(B) furnishing space, facilities, or services to
bicyclists; and
(C) any non-monetary incentive which the agency
head may otherwise offer under any other provision of
law or other authority.
(c) The functions of an agency head under this section
shall--
(1) with respect to the judicial branch, be carried
out by the Director of the Administrative Office of the
United States Courts;
(2) with respect to the House of Representatives,
be carried out by the Committee on House Administration
of the House of Representatives; and
(3) with respect to the Senate, be carried out by
the Committee on Rules and Administration of the
Senate.
(d) The President shall designate 1 or more agencies which
shall--
(1) prescribe guidelines for programs under this
section;
(2) on request, furnish information or technical
advice on the design or operation of any program under
this section; and
(3) submit to the President and the Congress,
before January 1, 1995, and at least every 2 years
thereafter, a written report on the operation of this
section, including, with respect to the period covered
by the report--
(A) the number of agencies offering
programs under this section;
(B) a brief description of each of the
various programs;
(C) the extent of employee participation
in, and the costs to the Government associated
with, each of the various programs;
(D) an assessment of any environmental or
other benefits realized as a result of programs
established under this section; and
(E) any other matter which may be
appropriate.
Subpart G--Insurance and Annuities
CHAPTER 81--COMPENSATION FOR WORK INJURIES
SUBCHAPTER I--GENERALLY
Sec.
8101. Definitions.
8102. Compensation for disability or death of employee.
8103. Medical services and initial medical and other benefits.
8104. Vocational rehabilitation.
8105. Total disability.
8106. Partial disability.
8107. Compensation schedule.
8108. Reduction of compensation for subsequent injury to same member.
8109. Beneficiaries of awards unpaid at death; order of precedence.
8110. Augmented compensation for dependents.
8111. Additional compensation for services of attendants or
vocational
rehabilitation.
8112. Maximum and minimum monthly payments.
8113. Increase or decrease of basic compensation.
8114. Computation of pay.
8115. Determination of wage-earning capacity.
8116. Limitations on right to receive compensation.
8117. Time of accrual of right.
8118. Continuation of pay; election to use annual or sick leave.
8119. Notice of injury or death.
8120. Report of injury.
8121. Claim.
8122. Time for making claim.
8123. Physical examinations.
8124. Findings and award; hearings.
8125. Misbehavior at proceedings.
8126. Subpenas; oaths; examination of witnesses.
8127. Representation; attorneys' fees.
8128. Review of award.
8129. Recovery of overpayments.
8130. Assignment of claim.
8131. Subrogation of the United States.
8132. Adjustment after recovery from a third person.
8133. Compensation in case of death.
8134. Funeral expenses; transportation of body.
8135. Lump-sum payment.
8136. Initial payments outside the United States.
8137. Compensation for noncitizens and nonresidents.
8138. Minimum limit modification for noncitizens and aliens.
8139. Employees of the District of Columbia.
8140. Members of the Reserve Officers' Training Corps.
8141. Civil Air Patrol volunteers.
8142. Peace Corps volunteers.
8143. Job Corps enrollees; volunteers in service to America.
8143a. Members of the National Teacher Corps.
8144. Student-employees.
8145. Administration.
8146. Administration for the Panama Canal Commission and The Alaska
Railroad.
8146a. Cost-of-living adjustment of compensation.
8147. Employees' Compensation Fund.
8148. Forfeiture of benefits by convicted felons.
8149. Regulations.
8150. Effect on other statutes.
8151. Civil service retention rights.
8152. Annual report.
SUBCHAPTER II--EMPLOYEES OF NONAPPROPRIATED FUND INSTRUMENTALITIES
8171. Compensation for work injuries; generally.
8172. Employees not citizens or residents of the United States.
8173. Liability under this subchapter exclusive.
SUBCHAPTER III--LAW ENFORCEMENT OFFICERS NOT EMPLOYED BY THE UNITED
STATES
8191. Determination of eligibility.
8192. Benefits.
8193. Administration.
SUBCHAPTER I--GENERALLY
Sec. 8101. Definitions
For the purpose of this subchapter--
(1) ``employee'' means--
(A) a civil officer or employee in any
branch of the Government of the United States,
including an officer or employee of an
instrumentality wholly owned by the United
States;
(B) an individual rendering personal
service to the United States similar to the
service of a civil officer or employee of the
United States, without pay or for nominal pay,
when a statute authorizes the acceptance or use
of the service, or authorizes payment of travel
or other expenses of the individual;
(C) an individual, other than an
independent contractor or an individual
employed by an independent contractor, employed
on the Menominee Indian Reservation in
Wisconsin in operations conducted under a
statute relating to tribal timber and logging
operations on that reservation;
(D) an individual employed by the
government of the District of Columbia; and
(E) an individual appointed to a position
on the office staff of a former President under
section 1(b) of the Act of August 25, 1958 (72
Stat. 838);
but does not include--
(i) a commissioned officer of the Regular
Corps of the Public Health Service;
(ii) a commissioned officer of the Reserve
Corps of the Public Health Service on active
duty;
(iii) a commissioned officer of the
Environmental Science Services Administration;
or
(iv) a member of the Metropolitan Police or
the Fire Department of the District of Columbia
who is pensioned or pensionable under sections
521-535 of title 4, District of Columbia Code;
and
(F) \1\ an individual selected pursuant to
chapter 121 of title 28, United States Code,
and serving as a petit or grand juror;
---------------------------------------------------------------------------
\1\ So in original. Public Law 93-416 added subparagraph (F)
immediately after clause (iv), rather than after subparagraph (E).
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(2) ``physician'' includes surgeons, podiatrists,
dentists, clinical psychologists, optometrists,
chiropractors, and osteopathic practitioners within the
scope of their practice as defined by State law. The
term ``physician'' includes chiropractors only to the
extent that their reimbursable services are limited to
treatment consisting of manual manipulation of the
spine to correct a subluxation as demonstrated by X-ray
to exist, and subject to regulation by the Secretary;
(3) ``medical, surgical, and hospital services and
supplies'' includes services and supplies by
podiatrists, dentists, clinical psychologists,
optometrists, chiropractors, osteopathic practitioners
and hospitals within the scope of their practice as
defined by State law. Reimbursable chiropractic
services are limited to treatment consisting of manual
manipulation of the spine to correct a subluxation as
demonstrated by X-ray to exist, and subject to
regulation by the Secretary;
(4) ``monthly pay'' means the monthly pay at the
time of injury, or the monthly pay at the time
disability begins, or the monthly pay at the time
compensable disability recurs, if the recurrence begins
more than 6 months after the injured employee resumes
regular full-time employment with the United States,
whichever is greater, except when otherwise determined
under section 8113 of this title with respect to any
period;
(5) ``injury'' includes, in addition to injury by
accident, a disease proximately caused by the
employment, and damage to or destruction of medical
braces, artificial limbs, and other prosthetic devices
which shall be replaced or repaired, and such time lost
while such device or appliance is being replaced or
repaired; except that eyeglasses and hearing aids would
not be replaced, repaired, or otherwise compensated
for, unless the damages or destruction is incident to a
personal injury requiring medical services;
(6) ``widow'' means the wife living with or
dependent for support on the decedent at the time of
his death, or living apart for reasonable cause or
because of his desertion;
(7) ``parent'' includes stepparents and parents by
adoption;
(8) ``brother'' and ``sister'' mean one who at the
time of the death of the employee is under 18 years of
age or over that age and incapable of self-support, and
include stepbrothers and stepsisters, half brothers and
half sisters, and brothers and sisters by adoption, but
do not include married brothers or married sisters;
(9) ``child'' means one who at the time of the
death of the employee is under 18 years of age or over
that age and incapable of self-support, and includes
stepchildren, adopted children, and posthumous
children, but does not include married children;
(10) ``grandchild'' means one who at the time of
the death of the employee is under 18 years of age or
over that age and incapable of self-support;
(11) ``widower'' means the husband living with or
dependent for support on the decedent at the time of
her death, or living apart for reasonable cause or
because of her desertion;
(12) ``compensation'' includes the money allowance
payable to an employee or his dependents and any other
benefits paid for from the Employees' Compensation
Fund, but this does not in any way reduce the amount of
the monthly compensation payable for disability or
death;
(13) ``war-risk hazard'' means a hazard arising
during a war in which the United States is engaged;
during an armed conflict in which the United States is
engaged, whether or not war has been declared; or
during a war or armed conflict between military forces
of any origin, occurring in the country in which an
individual to whom this subchapter applies is serving;
from--
(A) the discharge of a missile, including
liquids and gas, or the use of a weapon,
explosive, or other noxious thing by a hostile
force or individual or in combating an attack
or an imagined attack by a hostile force or
individual;
(B) action of a hostile force or
individual, including rebellion or insurrection
against the United States or any of its allies;
(C) the discharge or explosion of munitions
intended for use in connection with a war or
armed conflict with a hostile force or
individual;
(D) the collision of vessels on convoy or
the operation of vessels or aircraft without
running lights or without other customary
peacetime aids to navigation; or
(E) the operation of vessels or aircraft in
a zone of hostilities or engaged in war
activities;
(14) ``hostile force or individual'' means a
nation, a subject of a foreign nation, or an individual
serving a foreign nation--
(A) engaged in a war against the United
States or any of its allies;
(B) engaged in armed conflict, whether or
not war has been declared, against the United
States or any of its allies; or
(C) engaged in a war or armed conflict
between military forces of any origin in a
country in which an individual to whom this
subchapter applies is serving;
(15) ``allies'' means any nation with which the
United States is engaged in a common military effort or
with which the United States has entered into a common
defensive military alliance;
(16) ``war activities'' includes activities
directly relating to military operations;
(17) ``student'' means an individual under 23 years
of age who has not completed 4 years of education
beyond the high school level and who is regularly
pursuing a full-time course of study or training at an
institution which is--
(A) a school or college or university
operated or directly supported by the United
States, or by a State or local government or
political subdivision thereof;
(B) a school or college or university which
has been accredited by a State or by a State-
recognized or nationally recognized accrediting
agency or body;
(C) a school or college or university not
so accredited but whose credits are accepted,
on transfer, by at least three institutions
which are so accredited, for credit on the same
basis as if transferred from an institution so
accredited; or
(D) an additional type of educational or
training institution as defined by the
Secretary of Labor.
Such an individual is deemed not to have ceased to be a
student during an interim between school years if the
interim is not more than 4 months and if he shows to
the satisfaction of the Secretary that he has a bona
fide intention of continuing to pursue a full-time
course of study or training during the semester or
other enrollment period immediately after the interim
or during periods of reasonable duration during which,
in the judgment of the Secretary, he is prevented by
factors beyond his control from pursuing his education.
A student whose 23rd birthday occurs during a semester
or other enrollment period is deemed a student until
the end of the semester or other enrollment period;
(18) ``price index'' means the Consumer Price Index
(all items--United States city average) published
monthly by the Bureau of Labor Statistics; and
(19) ``organ'' means a part of the body that
performs a special function, and for purposes of this
subchapter excludes the brain, heart, and back; and
(20) ``United States medical officers and
hospitals'' includes medical officers and hospitals of
the Army, Navy, Air Force, Department of Veterans
Affairs, and United States Public Health Service, and
any other medical officer or hospital designated as a
United States medical officer or hospital by the
Secretary of Labor.
Sec. 8102. Compensation for disability or death of employee
(a) The United States shall pay compensation as specified
by this subchapter for the disability or death of an employee
resulting from personal injury sustained while in the
performance of his duty, unless the injury or death is--
(1) caused by willful misconduct of the employee;
(2) caused by the employee's intention to bring
about the injury or death of himself or of another; or
(3) proximately caused by the intoxication of the
injured employee.
(b) Disability or death from a war-risk hazard or during or
as a result of capture, detention, or other restraint by a
hostile force or individual, suffered by an employee who is
employed outside the continental United States or in Alaska or
in the areas and installations in the Republic of Panama made
available to the United States pursuant to the Panama Canal
Treaty of 1977 and related agreements (as described in section
3(a) of the Panama Canal Act of 1979), is deemed to have
resulted from personal injury sustained while in the
performance of his duty, whether or not the employee was
engaged in the course of employment when the disability or
disability resulting in death occurred or when he was taken by
the hostile force or individual. This subsection does not apply
to an individual--
(1) whose residence is at or in the vicinity of the
place of his employment and who was not living there
solely because of the exigencies of his employment,
unless he was injured or taken while engaged in the
course of his employment; or
(2) who is a prisoner of war or a protected
individual under the Geneva Conventions of 1949 and is
detained or utilized by the United States.
This subsection does not affect the payment of compensation
under this subchapter derived otherwise than under this
subsection, but compensation for disability or death does not
accrue for a period for which pay, other benefit, or gratuity
from the United States accrues to the disabled individual or
his dependents on account of detention by the enemy or because
of the same disability or death, unless that pay, benefit, or
gratuity is refunded or renounced.
Sec. 8103. Medical services and initial medical and other benefits
(a) The United States shall furnish to an employee who is
injured while in the performance of duty, the services,
appliances, and supplies prescribed or recommended by a
qualified physician, which the Secretary of Labor considers
likely to cure, give relief, reduce the degree or the period of
disability, or aid in lessening the amount of the monthly
compensation. These services, appliances, and supplies shall be
furnished--
(1) whether or not disability has arisen;
(2) notwithstanding that the employee has accepted
or is entitled to receive benefits under subchapter III
of chapter 83 of this title or another retirement
system for employees of the Government; and
(3) by or on the order of United States medical
officers and hospitals, or, at the employee's option,
by or on the order of physicians and hospitals
designated or approved by the Secretary.
The employee may initially select a physician to provide
medical services, appliances, and supplies, in accordance with
such regulations and instructions as the Secretary considers
necessary, and may be furnished necessary and reasonable
transportation and expenses incident to the securing of such
services, appliances, and supplies. These expenses, when
authorized or approved by the Secretary, shall be paid from the
Employees' Compensation Fund.
(b) The Secretary, under such limitations or conditions as
he considers necessary, may authorize the employing agencies to
provide for the initial furnishing of medical and other
benefits under this section. The Secretary may certify vouchers
for these expenses out of the Employees' Compensation Fund when
the immediate superior of the employee certifies that the
expense was incurred in respect to an injury which was accepted
by the employing agency as probably compensable under this
subchapter. The Secretary shall prescribe the form and content
of the certificate.
Sec. 8104. Vocational rehabilitation
(a) The Secretary of Labor may direct a permanently
disabled individual whose disability is compensable under this
subchapter to undergo vocational rehabilitation. The Secretary
shall provide for furnishing the vocational rehabilitation
services. In providing for these services, the Secretary,
insofar as practicable, shall use the services or facilities of
State agencies and corresponding agencies which cooperate with
the Secretary of Health, Education, and Welfare in carrying out
the purposes of chapter 4 of title 29, except to the extent
that the Secretary of Labor provides for furnishing these
services under section 8103 of this title. The cost of
providing these services to individuals undergoing vocational
rehabilitation under this section shall be paid from the
Employees' Compensation Fund. However, in reimbursing a State
or corresponding agency under an arrangement pursuant to this
section the cost to the agency reimbursable in full under
section 32(b)(1) of title 29 is excluded.
(b) Notwithstanding section 8106, individuals directed to
undergo vocational rehabilitation by the Secretary shall, while
undergoing such rehabilitation, receive compensation at the
rate provided in sections 8105 and 8110 of this title, less the
amount of any earnings received from remunerative employment,
other than employment undertaken pursuant to such
rehabilitation.
Sec. 8105. Total disability
(a) If the disability is total, the United States shall pay
the employee during the disability monthly monetary
compensation equal to 66\2/3\ percent of his monthly pay, which
is known as his basic compensation for total disability.
(b) The loss of use of both hands, both arms, both feet, or
both legs, or the loss of sight of both eyes, is prima facie
permanent total disability.
Sec. 8106. Partial disability
(a) If the disability is partial, the United States shall
pay the employee during the disability monthly monetary
compensation equal to 66\2/3\ percent of the difference between
his monthly pay and his monthly wage-earning capacity after the
beginning of the partial disability, which is known as his
basic compensation for partial disability.
(b) The Secretary of Labor may require a partially disabled
employee to report his earnings from employment or self-
employment, by affidavit or otherwise, in the manner and at the
times the Secretary specifies. The employee shall include in
the affidavit or report the value of housing, board, lodging,
and other advantages which are part of his earnings in
employment or self-employment and which can be estimated in
money. An employee who--
(1) fails to make an affidavit or report when
required; or
(2) knowingly omit or understates any part of his
earnings;
forfeits his right to compensation with respect to any period
for which the affidavit or report was required. Compensation
forfeited under this subsection, if already paid, shall be
recovered by a deduction from the compensation payable to the
employee or otherwise recovered under section 8129 of this
title, unless recovery is waived under that section.
(c) A partially disabled employee who--
(1) refuses to seek suitable work; or
(2) refuses or neglects to work after suitable work
is offered to, procured by, or secured for him;
is not entitled to compensation.
Sec. 8107. Compensation schedule
(a) If there is permanent disability involving the loss, or
loss of use, of a member or function of the body or involving
disfigurement, the employee is entitled to basic compensation
for the disability, as provided by the schedule in subsection
(c) of this section, at the rate of 66\2/3\ percent of his
monthly pay. The basic compensation is--
(1) payable regardless of whether the cause of the
disability originates in a part of the body other than
that member;
(2) payable regardless of whether the disability
also involves another impairment of the body; and
(3) in addition to compensation for temporary total
or temporary partial disability.
(b) With respect to any period after payments under
subsection (a) of this section have ended, an employee is
entitled to compensation as provided by--
(1) section 8105 of this title if the disability is
total; or
(2) section 8106 of this title if the disability is
partial.
(c) The compensation schedule is as follows:
(1) Arm lost, 312 weeks' compensation.
(2) Leg lost, 288 weeks' compensation.
(3) Hand lost, 244 weeks' compensation.
(4) Foot lost, 205 weeks' compensation.
(5) Eye lost, 160 weeks' compensation.
(6) Thumb lost, 75 weeks' compensation.
(7) First finger lost, 46 weeks' compensation.
(8) Great toe lost, 38 weeks' compensation.
(9) Second finger lost, 30 weeks' compensation.
(10) Third finger lost, 25 weeks' compensation.
(11) Toe other than great toe lost, 16 weeks'
compensation.
(12) Fourth finger lost, 15 weeks' compensation.
(13) Loss of hearing--
(A) complete loss of hearing of one ear, 52
weeks' compensation; or
(B) complete loss of hearing of both ears,
200 weeks' compensation.
(14) Compensation for loss of binocular vision or
for loss of 80 percent or more of the vision of an eye
is the same as for loss of the eye.
(15) Compensation for loss of more than one phalanx
of a digit is the same as for loss of the entire digit.
Compensation for loss of the first phalanx is one-half
of the compensation for loss of the entire digit.
(16) If, in the case of an arm or a leg, the member
is amputated above the wrist or ankle, compensation is
the same as for loss of the arm or leg, respectively.
(17) Compensation for loss of use of two or more
digits, or one or more phalanges of each of two or more
digits, of a hand or foot, is proportioned to the loss
of use of the hand or foot occasioned thereby.
(18) Compensation for permanent total loss of use
of a member is the same as for loss of the member.
(19) Compensation for permanent partial loss of use
of a member may be for proportionate loss of use of the
member. The degree of loss of vision or hearing under
this schedule is determined without regard to
correction.
(20) In case of loss of use of more than one member
or parts of more than one member as enumerated by this
schedule, the compensation is for loss of use of each
member or part thereof, and the awards run
consecutively. However, when the injury affects only
two or more digits of the same hand or foot, paragraph
(17) of this subsection applies, and when partial
bilateral loss of hearing is involved, compensation is
computed on the loss as affecting both ears.
(21) For serious disfigurement of the face, head,
or neck of a character likely to handicap an individual
in securing or maintaining employment, proper and
equitable compensation not to exceed $3,500 shall be
awarded in addition to any other compensation payable
under this schedule.
(22) For permanent loss or loss of use of any other
important external or internal organ of the body as
determined by the Secretary, proper and equitable
compensation not to exceed 312 weeks' compensation for
each organ so determined shall be paid in addition to
any other compensation payable under this schedule.
Sec. 8108. Reduction of compensation for subsequent injury to same
member
The period of compensation payable under the schedule in
section 8107(c) of this title is reduced by the period of
compensation paid or payable under the schedule for an earlier
injury if--
(1) compensation in both cases is for disability of
the same member or function or different parts of the
same member or function or for disfigurement; and
(2) the Secretary of Labor finds that compensation
payable for the later disability in whole or in part
would duplicate the compensation payable for the
preexisting disability.
In such a case, compensation for disability continuing after
the scheduled period starts on expiration of that period as
reduced under this section.
Sec. 8109. Beneficiaries of awards unpaid at death; order of precedence
(a) If an individual--
(1) has sustained disability compensable under
section 8107(a) of this title;
(2) has filed a valid claim in his lifetime; and
(3) dies from a cause other than the injury before
the end of the period specified by the schedule;
the compensation specified by the schedule that is unpaid at
his death, whether or not accrued or due at his death, shall be
paid--
(A) under an award made before or after the death;
(B) for the period specified by the schedule;
(C) to and for the benefit of the persons then in
being within the classes and proportions and on the
conditions specified by this section; and
(D) in the following order of precedence:
(i) If there is no child, to the widow or
widower.
(ii) If there are both a widow or widower
and a child or children, one-half to the widow
or widower and one-half to the child or
children.
(iii) If there is no widow or widower, to
the child or children.
(iv) If there is no survivor in the above
classes, to the parent or parents wholly or
partly dependent for support on the decedent,
or to other wholly dependent relatives listed
by section 8133(a)(5) of this title, or to both
in proportions provided by regulation.
(v) If there is no survivor in the above
classes and no burial allowance is payable
under section 8134 of this title, an amount not
exceeding that which would be expendable under
section 8134 of this title if applicable shall
be paid to reimburse a person equitably
entitled thereto to the extent and in the
proportion that he has paid the burial
expenses, but a compensated insurer or other
person obligated by law or contract to pay the
burial expenses or a State or political
subdivision or entity is deemed not equitably
entitled.
(b) Payments under subsection (a) of this section, except
for an amount payable for a period preceding the death of the
individual, are at the basic rate of compensation for permanent
disability specified by section 8107(a) of this title even if
at the time of death the individual was entitled to the
augmented rate specified by section 8110 of this title.
(c) A surviving beneficiary under subsection (a) of this
section, except one under subsection (a)(D)(v), does not have a
vested right to payment and must be alive to receive payment.
(d) A beneficiary under subsection (a) of this section,
except one under subsection (a)(D)(v), ceases to be entitled to
payment on the happening of an event which would terminate his
right to compensation for death under section 8133 of this
title. When that entitlement ceases, compensation remaining
unpaid under subsection (a) of this section is payable to the
surviving beneficiary in accordance with subsection (a) of this
section.
Sec. 8110. Augmented compensation for dependents
(a) For the purpose of this section, ``dependent'' means--
(1) a wife, if--
(A) she is member of the same household as
the employee;
(B) she is receiving regular contributions
from the employee for her support; or
(C) the employee has been ordered by a
court to contribute to her support;
(2) a husband, if--
(A) he is a member of the same household as
the employee; or
(B) he is receiving regular contributions
from the employee for his support; or
(C) the employee has been ordered by a
court to contribute to his support;
(3) an unmarried child, while living with the
employee or receiving regular contributions from the
employee toward his support, and who is--
(A) under 18 years of age; or
(B) over 18 years of age and incapable of
self-support because of physical or mental
disability; and
(4) a parent, while wholly dependent on and
supported by the employee.
Notwithstanding paragraph (3) of this subsection, compensation
payable for a child that would otherwise end because the child
has reached 18 years of age shall continue if he is a student
as defined by section 8101 of this title at the time he reaches
18 years of age for so long as he continues to be such a
student or until he marries.
(b) A disabled employee with one or more dependents is
entitled to have his basic compensation for disability
augmented--
(1) at the rate of 8\1/3\ percent of his monthly
pay if that compensation is payable under section 8105
or 8107(a) of this title; and
(2) at the rate of 8\1/3\ percent of the difference
between his monthly pay and his monthly wage-earning
capacity if that compensation is payable under section
8106(a) of this title.
Sec. 8111. Additional compensation for services of attendants or
vocational rehabilitation
(a) The Secretary of Labor may pay an employee who has been
awarded compensation an additional sum of not more than $1,500
a month, as the Secretary considers necessary, when the
Secretary finds that the service of an attendant is necessary
constantly because the employee is totally blind, or has lost
the use of both hands or both feet, or is paralyzed and unable
to walk, or because of other disability resulting from the
injury making him so helpless as to require constant
attendance.
(b) The Secretary may pay an individual undergoing
vocational rehabilitation under section 8104 of this title
additional compensation necessary for his maintenance, but not
to exceed $200 a month.
Sec. 8112. Maximum and minimum monthly payments
(a) Except as provided by section 8138 of this title, the
monthly rate of compensation for disability, including
augmented compensation under section 8110 of this title but not
including additional compensation under section 8111 of this
title, may not be more than 75 percent of the monthly pay of
the maximum rate of basic pay for GS-15, and in case of total
disability may not be less than 75 percent of the monthly pay
of the minimum rate of basic pay for GS-2 or the amount of the
monthly pay of the employee, whichever is less.
(b) The provisions of subsection (a) shall not apply to any
em- ployee whose disability is a result of an assault which
occurs during an assassination or attempted assassination of a
Federal official described under section 351(a) or 1751(a) of
title 18, and was sustained in the performance of duty.
Sec. 8113. Increase or decrease of basic compensation
(a) If an individual--
(1) was a minor or employed in a learner's capacity
at the time of injury; and
(2) was not physically or mentally handicapped
before the injury;
the Secretary of Labor, on review under section 8128 of this
title after the time the wage-earning capacity of the
individual would probably have increased but for the injury,
shall recompute prospectively the monetary compensation payable
for disability on the basis of an assumed monthly pay
corresponding to the probable increased wage-earning capacity.
(b) If an individual without good cause fails to apply for
and undergo vocational rehabilitation when so directed under
section 8104 of this title, the Secretary, on review under
section 8128 of this title and after finding that in the
absence of the failure the wage-earning capacity of the
individual would probably have substantially increased, may
reduce prospectively the monetary compensation of the
individual in accordance with what would probably have been his
wage-earning capacity in the absence of the failure, until the
individual in good faith complies with the direction of the
Secretary.
Sec. 8114. Computation of pay
(a) For the purpose of this section--
(1) ``overtime pay'' means pay for hours of service
in excess of a statutory or other basic workweek or
other basic unit of worktime, as observed by the
employing establishment; and
(2) ``year'' means a period of 12 calendar months,
or the equivalent thereof as specified by regulations
prescribed by the Secretary of Labor.
(b) In computing monetary compensation for disability or
death on the basis of monthly pay, that pay is determined under
this section.
(c) The monthly pay at the time of injury is deemed one-
twelfth of the average annual earnings of the employee at that
time. When compensation is paid on a weekly basis, the weekly
equivalent of the monthly pay is deemed one-fifty-second of the
average annual earnings. However, for so much of a period of
total disability as does not exceed 90 calendar days from the
date of the beginning of compensable disability, the
compensation, in the discretion of the Secretary of Labor, may
be computed on the basis of the actual daily wage of the
employee at the time of injury in which event he may be paid
compensation for the days he would have worked but for the
injury.
(d) Average annual earnings are determined as follows:
(1) If the employee worked in the employment in
which he was employed at the time of his injury during
substantially the whole year immediately preceding the
injury and the employment was in a position for which
an annual rate of pay--
(A) was fixed, the average annual earnings
are the annual rate of pay; or
(B) was not fixed, the average annual
earnings are the product obtained by
multiplying his daily wage for the particular
employment, or the average thereof if the daily
wage has fluctuated, by 300 if he was employed
on the basis of a 6-day workweek, 280 if
employed on the basis of a 5\1/2\-day week, and
260 if employed on the basis of a 5-day week.
(2) If the employee did not work in employment in
which he was employed at the time of his injury during
substantially the whole year immediately preceding the
injury, but the position was one which would have
afforded employment for substantially a whole year, the
average annual earnings are a sum equal to the average
annual earnings of an employee of the same class
working substantially the whole immediately preceding
year in the same or similar employment by the United
States in the same or neighboring place, as determined
under paragraph (1) of this subsection.
(3) If either of the foregoing methods of
determining the average annual earnings cannot be
applied reasonably and fairly, the average annual
earnings are a sum that reasonably represents the
annual earning capacity of the injured employee in the
employment in which he was working at the time of the
injury having regard to the previous earnings of the
employee in Federal employment, and of other employees
of the United States in the same or most similar class
working in the same or most similar employment in the
same or neighboring location, other previous employment
of the employee, or other relevant factors. However,
the average annual earnings may not be less than 150
times the average daily wage the employee earned in the
employment during the days employed within 1 year
immediately preceding his injury.
(4) If the employee served without pay or at
nominal pay, paragraphs (1), (2), and (3) of this
subsection apply as far as practicable, but the average
annual earnings of the employee may not exceed the
minimum rate of basic pay for GS-15. If the average
annual earnings cannot be determined reasonably and
fairly in the manner otherwise provided by this
section, the average annual earnings shall be
determined at the reasonable value of the service
performed but not in excess of $3,600 a year.
(e) The value of subsistence and quarters, and of any other
form of remuneration in kind for services if its value can be
estimated in money, and premium pay under section 5545(c)(1) of
this title are included as part of the pay, but account is not
taken of--
(1) overtime pay;
(2) additional pay or allowance authorized outside
the United States because of differential in cost of
living or other special circumstances; or
(3) bonus or premium pay for extraordinary service
including bonus or pay for particularly hazardous
service in time of war.
Sec. 8115. Determination of wage-earning capacity
(a) In determining compensation for partial disability,
except permanent partial disability compensable under sections
8107-8109 of this title, the wage-earning capacity of an
employee is determined by his actual earnings if his actual
earnings fairly and reasonably represent his wage-earning
capacity. If the actual earnings of the employee do not fairly
and reasonably represent his wage-earning capacity or if the
employee has no actual earnings, his wage-earning capacity as
appears reasonable under the circumstances is determined with
due regard to--
(1) the nature of his injury;
(2) the degree of physical impairment;
(3) his usual employment;
(4) his age;
(5) his qualifications for other employment;
(6) the availability of suitable employment; and
(7) other factors or circumstances which may affect
his wage-earning capacity in his disabled condition.
(b) Section 8114(d) of this title is applicable in
determining the wage-earning capacity of an employee after the
beginning of partial disability.
Sec. 8116. Limitations on right to receive compensation
(a) While an employee is receiving compensation under this
subchapter, or if he has been paid a lump sum in commutation of
installment payments until the expiration of the period during
which the installment payments would have continued, he may not
receive salary, pay, or remuneration of any type from the
United States, except--
(1) in return for service actually performed;
(2) pension for service in the Army, Navy, or Air
Force;
(3) other benefits administered by the Department
of Veterans Affairs unless such benefits are payable
for the same injury or the same death; and
(4) retired pay, retirement pay, retainer pay, or
equivalent pay for service in the Armed Forces or other
uniformed services.
However, eligibility for or receipt of benefits under
subchapter III of chapter 83 of this title, or another
retirement system for employees of the Government, does not
impair the right of the employee to compensation for scheduled
disabilities specified by section 8107(c) of this title.
(b) An individual entitled to benefits under this
subchapter because of his injury, or because of the death of an
employee, who also is entitled to receive from the United
States under a provision of statute other than this subchapter
payments or benefits for that injury or death (except proceeds
of an insurance policy), because of service by him (or in the
case of death, by the deceased) as an employee or in the armed
forces, shall elect which benefits he will receive. The
individual shall make the election within 1 year after the
injury or death or within a further time allowed for good cause
by the Secretary of Labor. The election when made is
irrevocable, except as otherwise provided by statute.
(c) The liability of the United States or an
instrumentality thereof under this subchapter or any extension
thereof with respect to the injury or death of an employee is
exclusive and instead of all other liability of the United
States or the instrumentality to the employee, his legal
representative, spouse, dependents, next of kin, and any other
person otherwise entitled to recover damages from the United
States or the instrumentality because of the injury or death in
a direct judicial proceeding, in a civil action, or in
admiralty, or by an administrative or judicial proceeding under
a workmen's compensation statute or under a Federal tort
liability statute. However, this subsection does not apply to a
master or a member of a crew of a vessel.
(d) Notwithstanding the other provisions of this section,
an individual receiving benefits for disability or death under
this subchapter who is also receiving benefits under subchapter
III of chapter 84 of this title or benefits under title II of
the Social Security Act shall be entitled to all such benefits,
except that--
(1) benefits received under section 223 of the
Social Security Act (on account of disability) shall be
subject to reduction on account of benefits paid under
this subchapter pursuant to the provisions of section
224 of the Social Security Act; and
(2) in the case of benefits received on account of
age or death under title II of the Social Security Act,
compensation payable under this subchapter based on the
Federal service of an employee shall be reduced by the
amount of any such social security benefits payable
that are attributable to Federal service of that
employee covered by chapter 84 of this title. However,
eligibility for or receipt of benefits under chapter 84
of this title, or benefits under title II of the Social
Security Act by virtue of service covered by chapter 84
of this title, does not affect the right of the
employee to compensation for scheduled disabilities
specified by section 8107(c) of this title.
Sec. 8117. Time of accrual of right
An employee is not entitled to compensation for the first 3
days of temporary disability, except--
(1) when the disability exceeds 14 days;
(2) when the disability is followed by permanent
disability; or
(3) as provided by sections 8103 and 8104 of this
title.
Sec. 8118. Continuation of pay; election to use annual or sick leave
(a) The United States shall authorize the continuation of
pay of an employee, as defined in section 8101(1) of this title
(other than those referred to in clause (B) or (E)), who has
filed a claim for a period of wage loss due to a traumatic
injury with his immediate superior on a form approved by the
Secretary of Labor within the time specified in section
8122(a)(2) of this title.
(b) Continuation of pay under this subchapter shall be
furnished--
(1) without a break in time unless controverted
under regulations of the Secretary;
(2) for a period not to exceed 45 days; and
(3) under accounting procedures and such other
regulations as the Secretary may require.
(c) An employee may use annual or sick leave to his credit
at the time the disability begins, but his compensation for
disability does not begin, and the time periods specified by
section 8117 of this title do not begin to run, until
termination of pay as set forth in subsections (a) and (b) or
the use of annual or sick leave ends.
(d) If a claim under subsection (a) is denied by the
Secretary, payments under this section shall, at the option of
the employee, be charged to sick or annual leave or shall be
deemed overpayments of pay within the meaning of section 5584
of title 5, United States Code.
(e) Payments under this section shall not be considered as
compensation as defined by section 8101(12) of this title.
Sec. 8119. Notice of injury or death
An employee injured in the performance of his duty, or
someone on his behalf, shall give notice thereof. Notice of a
death believed to be related to the employment shall be given
by an eligible beneficiary specified in section 8133 of this
title, or someone on his behalf. A notice of injury or death
shall--
(a) be given within 30 days after the injury or
death;
(b) be given to the immediate superior of the
employee by personal delivery or by depositing it in
the mail properly stamped and addressed;
(c) be in writing;
(d) state the name and address of the employee;
(e) state the year, month, day, and hour when and
the particular locality where the injury or death
occurred;
(f) state the cause and nature of the injury, or,
in the case of death, the employment factors believed
to be the cause; and
(g) be signed by and contain the address of the
individual giving the notice.
Sec. 8120. Report of injury
Immediately after an injury to an employee which results in
his death or probable disability, his immediate superior shall
report to the Secretary of Labor. The Secretary may--
(1) prescribe the information that the report shall
contain;
(2) require the immediate superior to make
supplemental reports; and
(3) obtain such additional reports and information
from employees as are agreed on by the Secretary and
the head of the employing agency.
Sec. 8121. Claim
Compensation under this subchapter may be allowed only if
an individual or someone on his behalf makes claim therefor.
The claim shall--
(1) be made in writing within the time specified by
section 8122 of this title;
(2) be delivered to the office of the Secretary of
Labor or to an individual whom the Secretary may
designate by regulation, or deposited in the mail
properly stamped and addressed to the Secretary or his
designee;
(3) be on a form approved by the Secretary;
(4) contain all information required by the
Secretary;
(5) be sworn to by the individual entitled to
compensation or someone on his behalf; and
(6) except in case of death, be accompanied by a
certificate of the physician of the employee stating
the nature of the injury and the nature and probable
extent of the disability.
The Secretary may waive paragraphs (3)-(6) of this section for
reasonable cause shown.
Sec. 8122. Time for making claim
(a) An original claim for compensation for disability or
death must be filed within 3 years after the injury or death.
Compensation for disability or death, including medical care in
disability cases, may not be allowed if claim is not filed
within that time unless--
(1) the immediate superior had actual knowledge of
the injury or death within 30 days. The knowledge must
be such to put the immediate superior reasonably on
notice of an on-the-job injury or death; or
(2) written notice of injury or death as specified
in section 8119 of this title was given within 30 days.
(b) In a case of latent disability, the time for filing
claim does not begin to run until the employee has a
compensable disability and is aware, or by the exercise of
reasonable diligence should have been aware, of the causal
relationship of the compensable disability to his employment.
In such a case, the time for giving notice of injury begins to
run when the employee is aware, or by the exercise of
reasonable diligence should have been aware, that his condition
is causally related to his employment, whether or not there is
a compensable disability.
(c) The timely filing of a disability claim because of
injury will satisfy the time requirements for a death claim
based on the same injury.
(d) The time limitations in subsections (a) and (b) of this
section do not--
(1) begin to run against a minor until he reaches
21 years of age or has had a legal representative
appointed; or
(2) run against an incompetent individual while he
is incompetent and has no duly appointed legal
representative; or
(3) run against any individual whose failure to
comply is excused by the Secretary on the ground that
such notice could not be given because of exceptional
circumstances.
Sec. 8123. Physical examinations
(a) An employee shall submit to examination by a medical
officer of the United States, or by a physician designated or
approved by the Secretary of Labor, after the injury and as
frequently and at the times and places as may be reasonably
required. The employee may have a physician designated and paid
by him present to participate in the examination. If there is
disagreement between the physician making the examination for
the United States and the physician of the employee, the
Secretary shall appoint a third physician who shall make an
examination.
(b) An employee is entitled to be paid expenses incident to
an examination required by the Secretary which in the opinion
of the Secretary are necessary and reasonable, including
transportation and loss of wages incurred in order to be
examined. The expenses, when authorized or approved by the
Secretary, are paid from the Employees' Compensation Fund.
(c) The Secretary shall fix the fees for examinations held
under this section by physicians not employed by or under
contract to the United States to furnish medical services to
employees. The fees, when authorized or approved by the
Secretary, are paid from the Employees' Compensation Fund.
(d) If an employee refuses to submit to or obstructs an
examination, his right to compensation under this subchapter is
suspended until the refusal or obstruction stops. Compensation
is not payable while a refusal or obstruction continues, and
the period of the refusal or obstruction is deducted from the
period for which compensation is payable to the employee.
Sec. 8124. Findings and award; hearings
(a) The Secretary of Labor shall determine and make a
finding of facts and make an award for or against payment of
compensation under this subchapter after--
(1) considering the claim presented by the
beneficiary and the report furnished by the immediate
superior; and
(2) completing such investigation as he considers
necessary.
(b)(1) Before review under section 8128(a) of this title, a
claimant for compensation not satisfied with a decision of the
Secretary under subsection (a) of this section is entitled, on
request made within 30 days after the date of the issuance of
the decision, to a hearing on his claim before a representative
of the Secretary. At the hearing, the claimant is entitled to
present evidence in further support of his claim. Within 30
days after the hearing ends, the Secretary shall notify the
claimant in writing of his further decision and any
modifications of the award he may make and of the basis of his
decision.
(2) In conducting the hearing, the representative of the
Secretary is not bound by common law or statutory rules of
evidence, by technical or formal rules of procedure, or by
section 554 of this title except as provided by this
subchapter, but may conduct the hearing in such manner as to
best ascertain the rights of the claimant. For this purpose, he
shall receive such relevant evidence as the claimant adduces
and such other evidence as he determines necessary or useful in
evaluating the claim.
Sec. 8125. Misbehavior at proceedings
If an individual--
(1) disobeys or resists a lawful order or process
in proceedings under this subchapter before the
Secretary of Labor or his representative; or
(2) misbehaves during a hearing or so near the
place of hearing as to obstruct it;
the Secretary or his representative shall certify the facts to
the district court having jurisdiction in the place where he is
sitting. The court, in a summary manner, shall hear the
evidence as to the acts complained of and if the evidence
warrants, punish the individual in the same manner and to the
same extent as for a contempt committed before the court, or
commit the individual on the same conditions as if the
forbidden act had occurred with reference to the process of or
in the presence of the court.
Sec. 8126. Subpenas; oaths; examination of witnesses
The Secretary of Labor, on any matter within his
jurisdiction under this subchapter, may--
(1) issue subpenas for and compel the attendance of
witnesses within a radius of 100 miles;
(2) administer oaths;
(3) examine witnesses; and
(4) require the production of books, papers,
documents, and other evidence.
Sec. 8127. Representation; attorneys' fees
(a) A claimant may authorize an individual to represent him
in any proceeding under this subchapter before the Secretary of
Labor.
(b) A claim for legal or other services furnished in
respect to a case, claim, or award for compensation under this
subchapter is valid only if approved by the Secretary.
Sec. 8128. Review of award
(a) The Secretary of Labor may review an award for or
against payment of compensation at any time on his own motion
or on application. The Secretary, in accordance with the facts
found on review, may--
(1) end, decrease, or increase the compensation
previously awarded; or
(2) award compensation previously refused or
discontinued.
(b) The action of the Secretary or his designee in allowing
or denying a payment under this subchapter is--
(1) final and conclusive for all purposes and with
respect to all questions of law and fact; and
(2) not subject to review by another official of
the United States or by a court by mandamus or
otherwise.
Credit shall be allowed in the accounts of a certifying or
disbursing official for payment in accordance with that action.
Sec. 8129. Recovery of overpayments
(a) When an overpayment has been made to an individual
under this subchapter because of an error of fact or law,
adjustment shall be made under regulations prescribed by the
Secretary of Labor by decreasing later payments to which the
individual is entitled. If the individual dies before the
adjustment is completed, adjustment shall be made by decreasing
later benefits payable under this subchapter with respect to
the individual's death.
(b) Adjustment or recovery by the United States may not be
made when incorrect payment has been made to an individual who
is without fault and when adjustment or recovery would defeat
the purpose of this subchapter or would be against equity and
good conscience.
(c) A certifying or disbursing official is not liable for
an amount certified or paid by him when--
(1) adjustment or recovery of the amount is waived
under subsection (b) of this section; or
(2) adjustment under subsection (a) of this section
is not completed before the death of all individuals
against whose benefits deductions are authorized.
Sec. 8130. Assignment of claim
An assignment of a claim for compensation under this
subchapter is void. Compensation and claims for compensation
are exempt from claims of creditors.
Sec. 8131. Subrogation of the United States
(a) If an injury or death for which compensation is payable
under this subchapter is caused under circumstances creating a
legal liability on a person other than the United States to pay
damages, the Secretary of Labor may require the beneficiary
to--
(1) assign to the United States any right of action
he may have to enforce the liability or any right he
may have to share in money or other property received
in satisfaction of that liability; or
(2) prosecute the action in his own name.
An employee required to appear as a party or witness in the
prosecution of such an action is in an active duty status while
so engaged.
(b) A beneficiary who refuses to assign or prosecute an
action in his own name when required by the Secretary is not
entitled to compensation under this subchapter.
(c) The Secretary may prosecute or compromise a cause of
action assigned to the United States. When the Secretary
realizes on the cause of action, he shall deduct therefrom and
place to the credit of the Employees' Compensation Fund the
amount of compensation already paid to the beneficiary and the
expense of realization or collection. Any surplus shall be paid
to the beneficiary and credited on future payments of
compensation payable for the same injury. However, the
beneficiary is entitled to not less than one-fifth of the net
amount of a settlement or recovery remaining after the expenses
thereof have been deducted.
(d) If an injury or death for which compensation is payable
under this subchapter is caused under circumstances creating a
legal liability in the Panama Canal Company to pay damages
under the law of a State, a territory or possession of the
United States, the District of Columbia, or a foreign country,
compensation is not payable until the individual entitled to
compensation--
(1) releases to the Panama Canal Company any right
of action he may have to enforce the liability of the
Panama Canal Company; or
(2) assigns to the United States any right he may
have to share in money or other property received in
satisfaction of the liability of the Panama Canal
Company.
Sec. 8132. Adjustment after recovery from a third person
If an injury or death for which compensation is payable
under this subchapter is caused under circumstances creating a
legal liability in a person other than the United States to pay
damages, and a beneficiary entitled to compensation from the
United States for that injury or death receives money or other
property in satisfaction of that liability as the result of
suit or settlement by him or in his behalf, the beneficiary,
after deducting therefrom the costs of suit and a reasonable
attorney's fee, shall refund to the United States the amount of
compensation paid by the United States and credit any surplus
on future payments of compensation payable to him for the same
injury. No court, insurer, attorney, or other person shall pay
or distribute to the beneficiary or his designee the proceeds
of such suit or settlement without first satisfying or assuring
satisfaction of the interest of the United States. The amount
refunded to the United States shall be credited to the
Employees' Compensation Fund. If compensation has not been paid
to the beneficiary, he shall credit the money or property on
compensation payable to him by the United States for the same
injury. However, the beneficiary is entitled to retain, as a
minimum, at least one-fifth of the net amount of the money or
other property remaining after the expenses of a suit or
settlement have been deducted; and in addition to this minimum
and at the time of distribution, an amount equivalent to a
reasonable attorney's fee proportionate to the refund to the
United States.
Sec. 8133. Compensation in case of death
(a) If death results from an injury sustained in the
performance of duty, the United States shall pay a monthly
compensation equal to a percentage of the monthly pay of the
deceased employee in accordance with the following schedule:
(1) To the widow or widower, if there is no child,
50 percent.
(2) To the widow or widower, if there is a child,
45 percent and in addition 15 percent for each child
not to exceed a total of 75 percent for the widow or
widower and children.
(3) To the children, if there is no widow or
widower, 40 percent for one child and 15 percent
additional for each additional child not to exceed a
total of 75 percent, divided among the children share
and share alike.
(4) To the parents, if there is no widow, widower,
or child, as follows--
(A) 25 percent if one parent was wholly
dependent on the employee at the time of death
and the other was not dependent to any extent;
(B) 20 percent to each if both were wholly
dependent; or
(C) a proportionate amount in the
discretion of the Secretary of Labor if one or
both were partly dependent.
If there is a widow, widower, or child, so much of the
percentages are payable as, when added to the total
percentages payable to the widow, widower, and
children, will not exceed a total of 75 percent.
(5) To the brothers, sisters, grandparents, and
grandchildren, if there is no widow, widower, child, or
dependent parent, as follows--
(A) 20 percent if one was wholly dependent
on the employee at the time of death;
(B) 30 percent if more than one was wholly
dependent, divided among the dependents share
and share alike; or
(C) 10 percent if no one is wholly
dependent but one or more is partly dependent,
divided among the dependents share and share
alike.
If there is a widow, widower, child, or dependent
parent, so much of the percentages are payable as, when
added to the total percentages payable to the widow,
widower, children, and dependent parents, will not
exceed a total of 75 percent.
(b) The compensation payable under subsection (a) of this
section is paid from the time of death until--
(1) a widow, or widower dies or remarries before
reaching age 55;
(2) a child, a brother, a sister, or a grandchild
dies, marries, or becomes 18 years of age, or if over
age 18 and incapable of self-support becomes capable of
self-support; or
(3) a parent or grandparent dies, marries, or
ceases to be dependent.
Notwithstanding paragraph (2) of this subsection, compensation
payable to or for a child, a brother or sister, or grandchild
that would otherwise end because the child, brother or sister,
or grandchild has reached 18 years of age shall continue if he
is a student as defined by section 8101 of this title at the
time he reaches 18 years of age for so long as he continues to
be such a student or until he marries. A widow or widower who
has entitlements to benefits under this title derived from more
than one husband or wife shall elect one entitlement to be
utilized.
(c) On the cessation of compensation under this section to
or on account of an individual, the compensation of the
remaining individuals entitled to compensation for the
unexpired part of the period during which their compensation is
payable, is that which they would have received if they had
been the only individuals entitled to compensation at the time
of the death of the employee.
(d) When there are two or more classes of individuals
entitled to compensation under this section and the
apportionment of compensation under this section would result
in injustice, the Secretary may modify the apportionment to
meet the requirements of the case.
(e) In computing compensation under this section, the
monthly pay is deemed not less than the minimum rate of basic
pay for GS-2. However, the total monthly compensation may not
exceed--
(1) the monthly pay computed under section 8114 of
this title, except for increases authorized by section
8146a of this title; or
(2) 75 percent of the monthly pay of the maximum
rate of basic pay for GS-15.
(f) Notwithstanding any funeral and burial expenses paid
under section 8134, there shall be paid a sum of $200 to the
personal representative of a deceased employee within the
meaning of section 8101(1) of this title for reimbursement of
the costs of termination of the decedent's status as an
employee of the United States.
Sec. 8134. Funeral expenses; transportation of body
(a) If death results from an injury sustained in the
performance of duty, the United States shall pay, to the
personal representative of the deceased or otherwise, funeral
and burial expenses not to exceed $800, in the discretion of
the Secretary of Labor.
(b) The body of an employee whose home is in the United
States, in the discretion of the Secretary, may be embalmed and
transported in a hermetically sealed casket to his home or last
place of residence at the expense of the Employees'
Compensation Fund if--
(1) the employee dies from--
(A) the injury while away from his home or
official station or outside the United States;
or
(B) from other causes while away from his
home or official station for the purpose of
receiving medical or other services,
appliances, supplies, or examination under this
subchapter; and
(2) the relatives of the employee request the
return of his body.
If the relatives do not request the return of the body of the
employee, the Secretary may provide for its disposition and
incur and pay from the Employees' Compensation Fund the
necessary and reasonable transportation, funeral, and burial
expenses.
Sec. 8135. Lump-sum payment
(a) The liability of the United States for compensation to
a beneficiary in the case of death or of permanent total or
permanent partial disability may be discharged by a lump-sum
payment equal to the present value of all future payments of
compensation computed at 4 percent true discount compounded
annually if--
(1) the monthly payment to the beneficiary is less
than $50 a month;
(2) the beneficiary is or is about to become a
nonresident of the United States; or
(3) the Secretary of Labor determines that it is
for the best interest of the beneficiary.
The probability of the death of the beneficiary before the
expiration of the period during which he is entitled to
compensation shall be determined according to the most current
United States Life Tables, as developed by the United States
Department of Health, Education, and Welfare, which shall be
updated from time to time, but the lump-sum payment to a widow
or widower of the deceased employee may not exceed 60 months'
compensation. The probability of the happening of any other
contingency affecting the amount or duration of compensation
shall be disregarded.
(b) On remarriage before reaching age 55 a widow or widower
entitled to compensation under section 8133 of this title,
shall be paid a lump sum equal to twenty-four times the monthly
compensation payment (excluding compensation on account of
another individual) to which he was entitled immediately before
the remarriage.
Sec. 8136. Initial payments outside the United States
If an employee is injured outside the continental United
States, the Secretary of Labor may arrange and provide for
initial payment of compensation and initial furnishing of other
benefits under this subchapter by an employee or agent of the
United States designated by the Secretary for that purpose in
the locality in which the employee was employed or the injury
incurred.
Sec. 8137. Compensation for noncitizens and nonresidents
(a) When the Secretary of Labor finds that the amount of
compensation payable to an employee who is neither a citizen
nor resident of the United States or Canada, or payable to a
dependent of such an employee, is substantially
disproportionate to compensation for disability or death
payable in similar cases under local statute, regulations,
custom, or otherwise at the place outside the continental
United States or Canada where the employee is working at the
time of injury, he may provide for payment of compensation on a
basis reasonably in accord with prevailing local payments in
similar cases by--
(1) the adoption or adaption of the substantive
features, by a schedule or otherwise, of local
workmen's compensation provisions or other local
statute, regulation, or custom applicable in cases of
personal injury or death; or
(2) establishing special schedules of compensation
for injury, death, and loss of use of members and
functions of the body for specific classes of
employees, areas, and places.
Irrespective of the basis adopted, the Secretary may at any
time--
(A) modify or limit the maximum monthly and total
aggregate payments for injury, death, and medical or
other benefits;
(B) modify or limit the percentages of the wage of
the employee payable as compensation for the injury or
death; and
(C) modify, limit, or redesignate the class or
classes of beneficiaries entitled to death benefits,
including the designation of persons, representatives,
or groups entitled to payment under local statute or
custom whether or not included in the classes of
beneficiaries otherwise specified by this subchapter.
(b) In a case under this section, the Secretary or his
designee may--
(1) make a lump-sum award in the manner prescribed
by section 8135 of this title when he or his designee
considers it to be for the best interest of the United
States; and
(2) compromise and pay a claim for benefits,
including a claim in which there is a dispute as to
jurisdiction or other fact or a question of law.
Compensation paid under this subsection is instead of all other
compensation from the United States for the same injury or
death, and a payment made under this subsection is deemed
compensation under this subchapter and is satisfaction of all
liability of the United States in respect to the particular
injury or death.
(c) The Secretary may delegate to an employee or agency of
the United States, with such limitations and right of review as
he considers advisable, authority to process, adjudicate,
commute by lump-sum award, compromise, and pay a claim or class
of claims for compensation, and to provide other benefits,
locally, under this section, in accordance with such
regulations and instructions as the Secretary considers
necessary. For this purpose, the Secretary may provide or
transfer funds, including reimbursement of amounts paid under
this subchapter.
(d) The Secretary may waive the application of this
subchapter in whole or in part and for such period or periods
as he may fix if he finds that--
(1) conditions prevent the establishment of
facilities for processing and adjudicating claims under
this section; or
(2) claimants under this section are alien enemies.
(e) The Secretary may apply this section retrospectively
with adjustment of compensation and benefits as he considers
necessary and proper.
Sec. 8138. Minimum limit modification for noncitizens and aliens
(a) Except as provided by subsection (b) of this section,
the minimum limit on monthly compensation for disability under
section 8112 of this title and the minimum limit on monthly pay
on which death compensation is computed under section 8133 of
this title do not apply in the case of a noncitizen employee,
or a class or classes of noncitizen employees, who sustain
injury outside the continental United States. The Secretary of
Labor may establish a minimum monthly pay on which death
compensation is computed in the case of a class or classes of
such noncitizen employees.
(b) The President may remove or modify the minimum limit on
monthly compensation for disability under section 8112 of this
title and the minimum limit on monthly pay on which death
compensation is computed under section 8133 of this title in
the case of an alien employee, or a class or classes of alien
employees, of the Canal Zone Government or the Panama Canal
Company.
Sec. 8139. Employees of the District of Columbia
Compensation awarded to an employee of the government of
the District of Columbia shall be paid in the manner provided
by statute for the payment of the general expenses of the
government of the District of Columbia.
Sec. 8140. Members of the Reserve Officers' Training Corps
(a) Subject to the provisions of this section, this
subchapter applies to a member of, or applicant for membership
in, the Reserve Officers' Training Corps of the Army, Navy, or
Air Force who suffers an injury, disability, or death incurred,
or an illness contracted, in line of duty--
(1) while engaged in a flight or in flight
instruction under chapter 103 of title 10; or
(2) during the period of the member's attendance at
training or a practice cruise under chapter 103 of
title 10, United States Code, beginning when the
authorized travel to the training or practice cruise
begins and ending when authorized travel from the
training or practice cruise ends.
(b) For the purpose of this section, an injury, disability,
death, or illness of a member referred to in subsection (a) may
be considered as incurred or contracted in line of duty only if
the injury, disability, or death is incurred, or the illness is
contracted, by the member during a period described in that
subsection. Subject to review by the Secretary of Labor, the
Secretary of the military department concerned (under
regulations prescribed by that Secretary), shall determine
whether an injury, disability, or death was incurred, or an
illness was contracted, by a member in line of duty.
(c) In computing the compensation payable under this
section, the monthly pay received by the injured or deceased
individual, in cash and kind, is deemed $150.
(d) The Secretary of the military department concerned
shall cooperate fully with the Department of Labor in the
prompt investigation and prosecution of a case involving the
legal liability of a third party other than the United States.
(e) An individual may not receive disability benefits under
this section while on active duty with the armed forces, but
these benefits may be reinstated when the individual is
released from that active duty.
(f) Expenses incurred by a military department in providing
hospitalization, medical and surgical care, necessary
transportation incident to that hospitalization or medical and
surgical care, or in connection with a funeral and burial on
behalf of an individual covered by subsection (a) of this
section shall be reimbursed by the Secretary of Labor from the
Employees' Compensation Fund in accordance with this
subchapter. However, reimbursement may not be made for
hospitalization or medical or surgical care provided an
individual by a military department in a facility of a military
department.
(g) For purposes of this section, the term ``applicant for
membership'' includes a student enrolled, during a semester or
other enrollment term, in a course which is part of Reserve
Officers' Training Corps instruction at an educational
institution.
Sec. 8141. Civil Air Patrol volunteers
(a) Subject to the provisions of this section, this
subchapter applies to a volunteer civilian member of the Civil
Air Patrol, except a Civil Air Patrol Cadet under 18 years of
age.
(b) In administering this subchapter for a member of the
Civil Air Patrol covered by this section--
(1) the monthly pay of a member is deemed the rate
of basic pay payable for step 1 of grade GS-9 in the
General Schedule under section 5332 of this title for
the purpose of computing compensation for disability or
death;
(2) the percentages applicable to payments under
section 8133 of this title are--
(A) 45 percent for section 8133(a)(2) of
this title, if the member dies fully or
currently insured under subchapter II of
chapter 7 of title 42, with no additional
payments for a child or children while the
widow or widower remains eligible for payments
under section 8133(a)(2) of this title;
(B) 20 percent for section 8133(a)(3) of
this title for one child and 10 percent
additional for each additional child, but not
to exceed a total of 75 percent, if the member
died fully or currently insured under
subchapter II of chapter 7 of title 42; and
(C) 25 percent for section 8133(a)(4) of
this title, if one parent was wholly dependent
on the deceased member at the time of his death
and the other was not dependent to any extent;
16 percent to each, if both were wholly
dependent; and if one was or both were partly
dependent, a proportionate amount in the
discretion of the Secretary of Labor;
(3) a payment may not be made under section
8133(a)(5) of this title;
(4) ``performance of duty'' means only active
service, and travel to and from that service, rendered
in performance or support of operational missions of
the Civil Air Patrol under direction of the Department
of the Air Force and under written authorization by
competent authority covering a specific assignment and
prescribing a time limit for the assignment; and
(5) the Secretary of Labor or his designee shall
inform the Commissioner of Social Security when a claim
is filed and eligibility for compensation is
established under section 8133(a)(2) or (3) of this
title, and the Commissioner of Social Security shall
certify to the Secretary of Labor as to whether or not
the member concerned was fully or currently insured
under subchapter II of chapter 7 of title 42 at the
time of his death.
(c) The Secretary of Labor or his designee may inform the
Secretary of the Air Force or his designee when a claim is
filed. The Secretary of the Air Force, on request of the
Secretary of Labor, shall advise him of the facts concerning
the injury and whether or not the member was rendering service,
or engaged in travel to or from service, in performance or
support of an operational mission of the Civil Air Patrol at
the time of injury. This subsection does not dispense with the
report of the immediate superior of the member required by
section 8120 of this title, or other reports agreed on under
that section.
Sec. 8142. Peace Corps volunteers
(a) For the purpose of this section, ``volunteer'' means--
(1) a volunteer enrolled in the Peace Corps under
section 2504 of title 22;
(2) a volunteer leader enrolled in the Peace Corps
under section 2505 of title 22; and
(3) an applicant for enrollment as a volunteer or
volunteer leader during a period of training under
section 2507(a) of title 22 before enrollment.
(b) Subject to the provisions of this section, this
subchapter applies to a volunteer, except that entitlement to
disability compensation payments does not commence until the
day after the date of termination of his service as a
volunteer.
(c) For the purpose of this subchapter--
(1) a volunteer is deemed receiving monthly pay at
the minimum rate for GS-7;
(2) a volunteer leader referred to by section 2505
of title 22, or a volunteer with one or more minor
children as defined in section 2504 of title 22, is
deemed receiving monthly pay at the minimum rate for
GS-11;
(3) an injury suffered by a volunteer when he is
outside the several States and the District of Columbia
is deemed proximately caused by his employment, unless
the injury or disease is--
(A) caused by willful misconduct of the
volunteer;
(B) caused by the volunteer's intention to
bring about the injury or death of himself or
of another; or
(C) proximately caused by the intoxication
of the injured volunteer; and
(4) the period of service of an individual as a
volunteer includes--
(A) any period of training under section
2507(a) of title 22 before enrollment as a
volunteer; and
(B) the period between enrollment as a
volunteer and the termination of service as a
volunteer by the President or by death or
resignation.
Sec. 8143. Job Corps enrollees; volunteers in service to America
(a) Subject to the provisions of this subsection, this
subchapter applies to an enrollee in the Job Corps, except that
compensation for disability does not begin to accrue until the
day after the date on which the injured enrollee is terminated.
In administering this subchapter for an enrollee covered by
this subsection--
(1) the monthly pay of an enrollee is deemed that
received at the minimum rate for GS-2;
(2) section 8113(a) of this title applies to an
enrollee; and
(3) ``performance of duty'' does not include an act
of an enrollee while absent from his assigned post of
duty, except while participating in an activity
(including an activity while on pass or during travel
to or from the post of duty) authorized by or under the
direction and supervision of the Job Corps.
(b) This subchapter applies to a volunteer in service to
America who receives either a living allowance or a stipend
under part A of subchapter VIII of chapter 34 of title 42, with
respect to that service and training, to the same extent as
enrollees of the Job Corps under subsection (a) of this
section. However, for the purpose of the computation described
in subsection (a)(1) of this section, the monthly pay of a
volunteer is deemed that received at the minimum rate for GS-5
of the General Schedule under section 5332 of title 5, United
States Code.
Sec. 8143a. Members of the National Teacher Corps
Subject to the provisions of this section, this subchapter
applies to a member of the National Teacher Corps. In
administering this subchapter for a member covered by this
section--
(1) ``performance of duty'' does not include an act
of a member while--
(A) on authorized leave; or
(B) absent from his assigned post of duty,
except while participating in an activity
authorized by or under the direction or
supervision of the Commissioner of Education;
and
(2) In computing compensation for disability or
death, the monthly pay of a member is deemed his actual
pay or that received at the minimum rate for GS-6,
whichever is greater.
Sec. 8144. Student-employees
A student-employee as defined by section 5351 of this title
who suffers disability or death as a result of personal injury
arising out of and in the course of training, or incurred in
the performance of duties in connection with that training, is
considered for the purpose of this subchapter an employee who
incurred the injury in the performance of duty.
Sec. 8145. Administration
The Secretary of Labor shall administer, and decide all
questions arising under, this subchapter. He may--
(1) appoint employees to administer this
subchapter; and
(2) delegate to any employee of the Department of
Labor any of the powers conferred on him by this
subchapter.
Sec. 8146. Administration for the Panama Canal Commission and The
Alaska Railroad
(a) The President, from time to time, may transfer the
administration of this subchapter--
(1) so far as employees of the Panama Canal
Commission are concerned to the Commission; and
(2) so far as employees of The Alaska Railroad are
concerned to the general manager of The Alaska
Railroad.
(b) When administration is transferred under subsection (a)
of this section, the expenses incident to physical examinations
which are payable under section 8123 of this title shall be
paid from appropriations for the Panama Canal Commission or for
The Alaska Railroad, as the case may be, instead of from the
Employees' Compensation Fund. The President may authorize the
Panama Canal Commission and the general manager of The Alaska
Railroad to pay the compensation provided by this subchapter,
including medical, surgical, and hospital services and supplies
under section 8103 of this title and the transportation and
burial expenses under sections 8103 and 8134 of this title,
from appropriations for the Panama Canal Commission and for The
Alaska Railroad, and these appropriations shall be reimbursed
for the payments by transfer of funds from the Employees'
Compensation Fund.
(c) The President may authorize the Panama Canal Commission
to waive, at its discretion, the making of the claim required
by section 8121 of this title in the case of compensation to an
employee of the Panama Canal Commission for temporary
disability, either total or partial.
(d) When administration is transferred under subsection (a)
of this section to the general manager of The Alaska Railroad,
the Secretary of Labor is not divested of jurisdiction and a
claimant is entitled to appeal from the decision of the general
manager of The Alaska Railroad to the Secretary of Labor. The
Secretary on receipt of an appeal shall, or on his own motion
may, review the decision of the general manager of The Alaska
Railroad, and in accordance with the facts found on review may
proceed under section 8128 of this title. The Secretary shall
provide the form and manner of taking an appeal.
(e) The same right of appeal exists with respect to claims
filed by employees of the Panama Canal Commission or their
dependents in case of death, as is provided with respect to the
claims of other employees to whom this subchapter applies,
under section 8149 of this title. The Employees' Compensation
Appeals Board referred to by section 8149 of this title has
jurisdiction, under regulations prescribed by the Secretary,
over appeals relating to claims of the employees or their
dependents.
Sec. 8146a. Cost-of-living adjustment of compensation
(a) Compensation payable on account of disability or death
which occurred more than one year before March 1 of each year
shall be annually increased on that date by the amount
determined by the Secretary of Labor to represent the percent
change in the price index published for December of the
preceding year over the price index published for the December
of the year prior to the preceding year, adjusted to the
nearest one-tenth of 1 percent.
(b) The regular periodic compensation payments after
adjustment under this section shall be fixed at the nearest
dollar. However, the regular periodic compensation after
adjustment shall reflect an increase of at least $1.
(c) This section shall be applicable to persons excluded by
section 15 of the Federal Employees' Compensation Act
Amendments of 1966 (Public Law 89-488) under the following
statutes: Act of February 15, 1934 (48 Stat. 351); Act of June
26, 1936 (49 Stat. 2035); Act of April 8, 1935 (49 Stat. 115);
Act of July 25, 1942 (56 Stat. 710); Public Law 84-955 (August
3, 1956); Public Law 77-784 (December 2, 1942); Public Law 84-
879 (August 1, 1956); Public Law 80-896 (July 3, 1948); Act of
September 8, 1959 (73 Stat. 469). Benefit payments to these
persons shall initially be increased by the total percentage of
the increases in the price index from the base month of July
1966, to the next most recent base month following the
effective date of this subsection.
Sec. 8147. Employees' Compensation Fund
(a) There is in the Treasury of the United States the
Employees' Compensation Fund which consists of sums that
Congress, from time to time, may appropriate for or transfer to
it, and amounts that otherwise accrue to it under this
subchapter or other statute. The Fund is available without time
limit for the payment of compensation and other benefits and
expenses, except administrative expenses, authorized by this
subchapter or any extension or application thereof, except as
otherwise provided by this subchapter or other statute. The
Secretary of Labor shall submit annually to the Office of
Management and Budget estimates of appropriations necessary for
the maintenance of the Fund. For the purpose of this
subsection, ``administrative expenses'' does not include
expenses for legal services performed by or for the Secretary
under sections 8131 and 8132 of this title.
(b) Before August 15 of each year, the Secretary shall
furnish to each agency and instrumentality of the United States
having an employee who is or may be entitled to compensation
benefits under this subchapter or any extension or application
thereof a statement showing the total cost of benefits and
other payments made from the Employees' Compensation Fund
during the preceding July 1 through June 30 expense period on
account of the injury or death of employees or individuals
under the jurisdiction of the agency or instrumentality. Each
agency and instrumentality shall include in its annual budget
estimates for the fiscal year beginning in the next calendar
year a request for an appropriation in an amount equal to the
costs. Sums appropriated pursuant to the request shall be
deposited in the Treasury to the credit of the Fund within 30
days after they are available. An agency or instrumentality not
dependent on an annual appropriation shall make the deposit
required by this subsection from funds under its control during
the first fifteen days of October following the furnishing of
the statement. If an agency or instrumentality (or part or
function thereof) is transferred to another agency or
instrumentality, the cost of compensation benefits and other
expenses paid from the Fund on account of the injury or death
of employees of the transferred agency or instrumentality (or
part or function) shall be included in costs of the receiving
agency or instrumentality.
(c) In addition to the contributions for the maintenance of
the Employees' Compensation Fund required by this section, the
United States Postal Service, or a mixed ownership corporation
as defined by section 9101(2) of title 31, or any other
corporation or agency or instrumentality (or activity thereof)
which is required by statute to submit an annual budget
pursuant to or as provided by chapter 91 of title 31, shall pay
an additional amount for its fair share of the cost of
administration of this subchapter as determined by the
Secretary. With respect to these corporations, agencies, and
instrumentalities, the charges billed by the Secretary under
this section shall include an additional amount for these
costs, which shall be paid into the Treasury as miscellaneous
receipts from the sources authorized and in the manner
otherwise provided by this section.
Sec. 8148. Forfeiture of benefits by convicted felons
(a) Any individual convicted of a violation of section 1920
of title 18, or any other Federal or State criminal statute
relating to fraud in the application for or receipt of any
benefit under this subchapter or subchapter III of this
chapter, shall forfeit (as of the date of such conviction) any
entitlement to any benefit such individual would otherwise be
entitled to under this subchapter or subchapter III for any
injury occurring on or before the date of such conviction. Such
forfeiture shall be in addition to any action the Secretary may
take under section 8106 or 8129.
(b)(1) Notwithstanding any other provision of this chapter
(except as provided under paragraph (3)), no benefits under
this subchapter or subchapter III of this chapter shall be paid
or provided to any individual during any period during which
such individual is confined in a jail, prison, or other penal
institution or correctional facility, pursuant to that
individual's conviction of an offense that constituted a felony
under applicable law.
(2) Such individual shall not be entitled to receive the
benefits forfeited during the period of incarceration under
paragraph (1), after such period of incarceration ends.
(3) If an individual has one or more dependents as defined
under section 8110(a), the Secretary of Labor may, during the
period of incarceration, pay to such dependents a percentage of
the benefits that would have been payable to such individual
computed according to the percentages set forth in section
8133(a) (1) through (5).
(c) Notwithstanding the provision of section 552a of this
title, or any other provision of Federal or State law, any
agency of the United States Government or of any State (or
political subdivision thereof) shall make available to the
Secretary of Labor, upon written request, the names and Social
Security account numbers of individuals who are confined in a
jail, prison, or other penal institution or correctional
facility under the jurisdiction of such agency, pursuant to
such individuals' conviction of an offense that constituted a
felony under applicable law, which the Secretary of Labor may
require to carry out the provisions of this section.
Sec. 8149. Regulations
The Secretary of Labor may prescribe rules and regulations
necessary for the administration and enforcement of this
subchapter including rules and regulations for the conduct of
hearings under section 8124 of this title. The rules and
regulations shall provide for an Employee's Compensation
Appeals Board of three individuals designated or appointed by
the Secretary with authority to hear and, subject to applicable
law and the rules and regulations of the Secretary, make final
decisions on appeals taken from determinations and awards with
respect to claims of employees. In adjudicating claims under
section 8146 of this title, the Secretary may determine the
nature and extent of the proof and evidence required to
establish the right to benefits under this subchapter without
regard to the date of injury or death for which claim is made.
Sec. 8150. Effect on other statutes
(a) This subchapter does not affect the maritime rights and
remedies of a master or member of the crew of a vessel.
(b) Section 8141 of this title and section 9441 of title 10
do not confer military or veteran status on any individual.
Sec. 8151. Civil service retention rights
(a) In the event the individual resumes employment with the
Federal Government, the entire time during which the employee
was receiving compensation under this chapter shall be credited
to the employee for the purposes of within-grade step
increases, retention purposes, and other rights and benefits
based upon length of service.
(b) Under regulations issued by the Office of Personnel
Management--
(1) the department or agency which was the last
employer shall immediately and unconditionally accord
the employee, if the injury or disability has been
overcome within one year after the date of commencement
of compensation or from the time compensable disability
recurs if the recurrence begins after the injured
employee resumes regular full-time employment with the
United States, the right to resume his former or an
equivalent position, as well as all other attendant
rights which the employee would have had, or acquired,
in his former position had he not been injured or
disabled, including the rights to tenure, promotion,
and safeguards in reductions-in-force procedures, and
(2) the department or agency which was the last
employer shall, if the injury or disability is overcome
within a period of more than one year after the date of
commencement of compensation, make all reasonable
efforts to place, and accord priority to placing, the
employee in his former or equivalent position within
such department or agency, or within any other
department or agency.
Sec. 8152. Annual report
The Secretary of Labor shall, at the end of each fiscal
year, prepare a report with respect to the administration of
this chapter. Such report shall be submitted to Congress in
accordance with the requirement with respect to submission
under section 42 of the Longshore Harbor Workers' Compensation
Act (33 U.S.C. 942).
SUBCHAPTER II--EMPLOYEES OF NONAPPROPRIATED FUND INSTRUMENTALITIES
Sec. 8171. Compensation for work injuries; generally
(a) The Longshore and Harbor Workers' Compensation Act (33
U.S.C. 901 et seq.) applies with respect to disability or death
resulting from injury, as defined by section 2(2) of such Act
(33 U.S.C. 902(2)), occurring to an employee of a
nonappropriated fund instrumentality described by section
2105(c) of this title, or to a volunteer providing such an
instrumentality with services accepted under section 1588 of
title 10, who is--
(1) a United States citizen or a permanent resident
of the United States or a territory or possession of
the United States employed outside the continental
United States; or
(2) employed inside the continental United States.
However, that part of section 3(a) of such Act (33 U.S.C.
903(a)) which follows the second comma does not apply to such
an employee.
(b) For the purpose of this subchapter, the term
``employer'' in section 2(4) of the Longshore and Harbor
Workers' Compensation Act (33 U.S.C. 902(4)) includes the
nonappropriated fund instrumentalities described by section
2105(c) of this title.
(c) The Secretary of Labor may--
(1) extend compensation districts established under
section 39(b) of the Longshore and Harbor Workers'
Compensation Act (33 U.S.C. 939(b)), or establish new
districts to include the areas outside the continental
United States; and
(2) assign to each district one or more deputy
commissioners as the Secretary considers advisable.
(d) Judicial proceedings under sections 18 and 21 of the
Longshore and Harbor Workers' Compensation Act (33 U.S.C. 918
and 921) with respect to an injury or death occurring outside
the continental United States shall be instituted in the
district court within the territorial jurisdiction of which is
located the office of the deputy commissioner having
jurisdiction with respect to the injury or death.
Sec. 8172. Employees not citizens or residents of the United States
In case of disability or death, resulting from injury, as
defined by section 2(2) of the Longshore and Harbor Workers'
Compensation Act (33 U.S.C. 902(2)), occurring to an employee
of a nonappropriated fund instrumentality described by section
2105(c) of this title who is--
(1) not a citizen or permanent resident of the
United States or a territory or possession of the
United States; and
(2) employed outside the continental United States;
compensation shall be provided in accordance with regulations
prescribed by the Secretary of the military department
concerned and approved by the Secretary of Defense or
regulations prescribed by the Secretary of Transportation, as
the case may be.
Sec. 8173. Liability under this subchapter exclusive
The liability of the United States or of a nonappropriated
fund instrumentality described by section 2105(c) of this
title, with respect to the disability or death resulting from
injury, as defined by section 2(2) of the Longshore and Harbor
Workers' Compensation Act (33 U.S.C. 902(2)), of an employee
referred to by sections 8171 and 8172 of this title, shall be
determined as provided by this subchapter. This liability is
exclusive and instead of all other liability of the United
States or the instrumentality to the employee, his legal
representative, spouse, dependents, next of kin, and any other
person otherwise entitled to recover damages from the United
States or the instrumentality because of the disability or
death in a direct judicial proceeding, in a civil action, or in
admiralty, or by an administrative or judicial proceeding under
a workmen's compensation statute or under a Federal tort
liability statute.
SUBCHAPTER III--LAW ENFORCEMENT OFFICERS NOT EMPLOYED BY THE UNITED
STATES
Sec. 8191. Determination of eligibility
The benefits of this subchapter are available as provided
in this subchapter to eligible law enforcement officers
(referred to in this subchapter as ``eligible officers'') and
their survivors. For the purposes of this subchapter, an
eligible officer is any person who is determined by the
Secretary of Labor in his discretion to have been on any given
occasion--
(1) a law enforcement officer and to have been
engaged on that occasion in the apprehension or
attempted apprehension of any person--
(A) for the commission of a crime against
the United States, or
(B) who at that time was sought by a law
enforcement authority of the United States for
the commission of a crime against the United
States, or
(C) who at that time was sought as a
material witness in a criminal proceeding
instituted by the United States; or
(2) a law enforcement officer and to have been
engaged on that occasion in protecting or guarding a
person held for the commission of a crime against the
United States or as a material witness in connection
with such a crime; or
(3) a law enforcement officer and to have been
engaged on that occasion in the lawful prevention of,
or lawful attempt to prevent, the commission of a crime
against the United States;
and to have been on that occasion not an employee as defined in
section 8101(1), and to have sustained on that occasion a
personal injury for which the United States would be required
under subchapter I of this chapter to pay compensation if he
had been on that occasion such an employee engaged in the
performance of his duty. No person otherwise eligible to
receive a benefit under this subchapter because of the
disability or death of an eligible officer shall be barred from
the receipt of such benefit because the person apprehended or
attempted to be apprehended by such officer was then sought for
the commission of a crime against a sovereignty other than the
United States.
Sec. 8192. Benefits
(a) Benefits in Event of Injury.--The Secretary of Labor
shall furnish to any eligible officer the benefits to which he
would have been entitled under subchapter I of this chapter if,
on the occasion giving rise to his eligibility, he had been an
employee as defined in section 8101(1) engaged in the
performance of his duty, reduced or adjusted as the Secretary
of Labor in his discretion may deem appropriate to reflect
comparable benefits, if any, received by the officer (or which
he would have been entitled to receive but for this subchapter)
by virtue of his actual employment on that occasion. When an
enforcement officer has contributed to a disability
compensation fund, the reduction of Federal benefits provided
for in this subsection is to be limited to the amount of the
State or local government benefits which bears the same
proportion to the full amount of such benefits as the cost or
contribution paid by the State or local government bears to the
cost of disability coverage for the individual officer.
(b) Benefits in Event of Death.--The Secretary of Labor
shall pay to any survivor of an eligible officer the
difference, as determined by the Secretary in his discretion,
between the benefits to which that survivor would be entitled
if the officer had been an employee as defined in section
8101(1) engaged in the performance of his duty on the occasion
giving rise to his eligibility, and the comparable benefits, if
any, received by the survivor (or which that survivor would
have been entitled to receive but for this subchapter) by
virtue of the officer's actual employment on that occasion.
When an enforcement officer has contributed to a survivor's
benefit fund, the reduction of Federal benefits provided for in
this subsection is to be limited to the amount of the State or
local government benefits which bears the same proportion to
the full amount of such benefits as the cost or contribution
paid by the State or local government bears to the cost of
survivor's benefits coverage for the individual officer.
Sec. 8193. Administration
(a) Definitions and Rules of Construction.--For the purpose
of this subchapter--
(1) The term ``Attorney General'' includes any
person to whom the Attorney General has delegated any
function pursuant to subsection (b) of this section.
(2) The term ``Secretary of Labor'' includes any
person to whom the Secretary of Labor has delegated any
function pursuant to subsection (b) of this section.
(b) Delegation.--
(1) The Attorney General may delegate to any
division, officer, or employee of the Department of
Justice any function conferred upon the Attorney
General by this subchapter.
(2) The Secretary of Labor may delegate to any
bureau, officer, or employee of the Department of Labor
any function conferred upon the Secretary of Labor by
this subchapter.
(c) Applications.--An application for any benefit under
this subchapter may be made only--
(1) to the Secretary of Labor
(2) by
(A) any eligible officer or survivor of an
eligible officer,
(B) any guardian, personal representative,
or other person legally authorized to act on
behalf of an eligible officer, his estate, or
any of his survivors, or
(C) any association of law enforcement
officers which is acting on behalf of an
eligible officer or any of his survivors;
(3) within five years after the injury or death;
and
(4) in such form as the Secretary of Labor may
require.
(d) Consultation with Attorney General and Other
Agencies.--The Secretary of Labor may refer any application
received by him pursuant to this subchapter to the Attorney
General for his assistance, comments and advice as to any
determination required to be made pursuant to paragraph (1),
(2), or (3) of section 8191. To insure that all Federal
assistance under this subchapter is carried out in a
coordinated manner, the Secretary of Labor is authorized to
request any Federal department or agency to supply any
statistics, data, or any other materials he deems necessary to
carry out his functions under this subchapter. Each such
department or agency is authorized to cooperate with the
Secretary of Labor and, to the extent permitted by law, to
furnish such materials to him.
(e) Cooperation with State Agencies.--The Secretary of
Labor shall cooperate fully with the appropriate State and
local officials, and shall take all other practicable measures,
to assure that the benefits of this subchapter are made
available to eligible officers and their survivors with a
minimum of delay and difficulty.
(f) Appropriations.--There are authorized to be
appropriated such sums as may be necessary to carry out this
subchapter.
CHAPTER 83--RETIREMENT
SUBCHAPTER I--GENERAL PROVISIONS
Sec.
8301. Uniform retirement date.
SUBCHAPTER II--FORFEITURE OF ANNUITIES AND RETIRED PAY
8311. Definitions.
8312. Conviction of certain offenses.
8313. Absence from the United States to avoid prosecution.
8314. Refusal to testify.
8315. Falsifying employment applications.
8316. Refund of contributions and deposits.
8317. Repayment of annuity or retired pay properly paid; waiver.
8318. Restoration of annuity or retired pay.
8319. Removal of members of the uniformed services from rolls;
restoration; reappointment.
8320. Offense or violation committed in compliance with orders.
8321. Liability of accountable employees.
8322. Effect on other statutes.
SUBCHAPTER III--CIVIL SERVICE RETIREMENT
8331. Definitions.
8332. Creditable service.
8333. Eligibility for annuity.
8334. Deductions, contributions, and deposits.
8335. Mandatory separation.
8336. Immediate retirement.
8337. Disability retirement.
8338. Deferred retirement.
8339. Computation of annuity.
8340. Cost-of-living adjustment of annuities.
8341. Survivor annuities.
8342. Lump-sum benefits; designation of beneficiary; order of
precedence.
8343. Additional annuities; voluntary contributions.
8343a. Alternative forms of annuities.
8344. Annuities and pay on reemployment.
8345. Payment of benefits; commencement, termination, and waiver of
annuity.
8346. Exemption from legal process; recovery of payments.
8347. Administration; regulations.
8348. Civil Service Retirement and Disability Fund.
8349. Offset relating to certain benefits under the Social Security
Act.
8350. Retirement counseling.
8351. Participation in the Thrift Savings Plan.
SUBCHAPTER I--GENERAL PROVISIONS
Sec. 8301. Uniform retirement date
(a) Except as otherwise specifically provided by this title
or other statute, retirement authorized by statute is effective
on the first day of the month following the month in which
retirement would otherwise be effective.
(b) Notwithstanding subsection (a) of this section, the
rate of active or retired pay or allowance is computed as of
the date retirement would have occurred but for subsection (a)
of this section.
SUBCHAPTER II--FORFEITURE OF ANNUITIES AND RETIRED PAY
Sec. 8311. Definitions
For the purpose of this subchapter--
(1) ``employee'' means--
(A) an employee as defined by section 2105
of this title;
(B) a Member of Congress as defined by
section 2106 of this title and a Delegate to
Congress;
(C) a member or former member of a
uniformed service; and
(D) an individual employed by the
government of the District of Columbia;
(2) ``annuity'' means a retirement benefit,
including a disability insurance benefit and a
dependent's or survivor's benefit under subchapter II
of chapter 7 of title 42, and a monthly annuity under
section 228b or 228e of title 45, payable by an agency
of the Government of the United States or the
government of the District of Columbia on the basis of
service as a civilian employee and other service which
is creditable to an employee toward the benefit under
the statute, regulation, or agreement which provides
the benefit, but does not include--
(A) a benefit provided under statutes
administered by the Department of Veterans
Affairs;
(B) pay or compensation which may not be
diminished under section 1 of Article III of
the Constitution of the United States;
(C) that portion of a benefit payable under
subchapter II of chapter 7 of title 42 which
would be payable without taking into account,
for any of the purposes of that subchapter,
including determinations of periods of
disability under section 416(i) of title 42,
pay for services as an employee;
(D) monthly annuity awarded under section
228b or 228e of title 45 before September 26,
1961, whether or not computed under section
228c(e) of title 45;
(E) that portion of an annuity awarded
under section 228b or 228e of title 45 after
September 25, 1961, which would be payable
without taking into account military service
creditable under section 228c-1 of title 45;
(F) a retirement benefit, including a
disability insurance benefit and a dependent's
or survivor's benefit under subchapter II of
chapter 7 of title 42, awarded before September
1, 1954, to an individual or his survivor or
beneficiary, insofar as the individual, before
September 1, 1954--
(i) was convicted of an offense
named by subsection (b) of section 8312
of this title, to the extent provided
by that subsection; or
(ii) violated section 8314 or
8315(a)(1) of this title; or
(G) a retirement benefit, including a
disability insurance benefit and a dependent's
or survivor's benefit under subchapter II of
chapter 7 of title 42, awarded before September
26, 1961, to an individual or his survivor or
beneficiary, insofar as the individual, before
September 26, 1961--
(i) was convicted of an offense
named by subsection (c) of section 8312
of this title, to the extent provided
by that subsection; or
(ii) violated section 8315(a)(2) of
this title; and
(3) ``retired pay'' means retired pay, retirement
pay, retainer pay, or equivalent pay, payable under a
statute to a member or former member of a uniformed
service, and an annuity payable to an eligible
beneficiary of the member or former member under
chapter 73 of title 10 or section 5 of the Uniformed
Services Contingency Option Act of 1953 (67 Stat. 504),
but does not include--
(A) a benefit provided under statutes
administered by the Department of Veterans
Affairs;
(B) retired pay, retirement pay, retainer
pay, or equivalent pay, awarded before
September 1, 1954, to an individual, insofar as
the individual, before September 1, 1954--
(i) was convicted of an offense
named by subsection (b) of section 8312
of this title, to the extent provided
by that subsection; or
(ii) violated section 8314 or
8315(a)(1) of this title;
(C) retired pay, retirement pay, retainer
pay, or equivalent pay, awarded before
September 26, 1961, to an individual, insofar
as the individual, before September 26, 1961--
(i) was convicted of an offense
named by subsection (c) of section 8312
of this title, to the extent provided
by that subsection; or
(ii) violated section 8315(a)(2) of
this title; or
(D) an annuity payable to an eligible
beneficiary of an individual under chapter 73
of title 10 or section 5 of the Uniformed
Services Contingency Option Act of 1953 (67
Stat. 504), if the annuity was awarded to the
beneficiary, or if retired pay was awarded to
the individual, before September 26, 1961,
insofar as the individual, on the basis of
whose service the annuity was awarded, before
September 26, 1961--
(i) was convicted of an offense
named by section 8312 of this title, to
the extent provided by that section; or
(ii) violated section 8314 or 8315
of this title.
Sec. 8312. Conviction of certain offenses
(a) An individual, or his survivor or beneficiary, may not
be paid annuity or retired pay on the basis of the service of
the individual which is creditable toward the annuity or
retired pay, subject to the exceptions in section 8311(2) and
(3) of this title, if the individual--
(1) was convicted, before, on, or after September
1, 1954, of an offense named by subsection (b) of this
section, to the extent provided by that subsection; or
(2) was convicted, before, on, or after September
26, 1961, of an offense named by subsection (c) of this
section, to the extent provided by that subsection.
The prohibition on payment of annuity or retired pay applies--
(A) with respect to the offenses named by
subsection (b) of this section, to the period after the
date of the conviction or after September 1, 1954,
whichever is later; and
(B) with respect to the offenses named by
subsection (c) of this section, to the period after the
date of conviction or after September 26, 1961,
whichever is later.
(b) The following are the offenses to which subsection (a)
of this section applies if the individual was convicted before,
on, or after September 1, 1954:
(1) An offense within the purview of--
(A) section 792 (harboring or concealing
persons), 793 (gathering, transmitting, or
losing defense information), 794 (gathering or
delivering defense information to aid foreign
government), or 798 (disclosure of classified
information), of chapter 37 (relating to
espionage and censorship) of title 18;
(B) chapter 105 (relating to sabotage) of
title 18;
(C) section 2381 (treason), 2382
(misprision of treason), 2383 (rebellion or
insurrection), 2384 (seditious conspiracy),
2385 (advocating overthrow of government), 2387
(activities affecting armed forces generally),
2388 (activities affecting armed forces during
war), 2389 (recruiting for service against
United States), or 2390 (enlistment to serve
against United States), of chapter 115
(relating to treason, sedition, and subversive
activities) of title 18;
(D) section 10(b)(2), (3), or (4) of the
Atomic Energy Act of 1946 (60 Stat. 766, 767),
as in effect August 30, 1954;
(E) section 16(a) or (b) of the Atomic
Energy Act of 1946 (60 Stat. 773), as in effect
before August 30, 1954, insofar as the offense
is committed with intent to injure the United
States or with intent to secure an advantage to
a foreign nation; or
(F) an earlier statute on which a statute
named by subparagraph (A), (B), or (C) of this
paragraph (1) is based.
(2) An offense within the purview of--
(A) article 104 (aiding the enemy), article
106 (spies), or article 106a (espionage) of the
Uniform Code of Military Justice (chapter 47 of
title 10) or an earlier article on which
article 104 or article 106, as the case may be,
is based; or
(B) a current article of the Uniform Code
of Military Justice (or an earlier article on
which the current article is based) not named
by subparagraph (A) of this paragraph (2) on
the basis of charges and specifications
describing a violation of a statute named by
paragraph (1), (3), or (4) of this subsection,
if the executed sentence includes death,
dishonorable discharge, or dismissal from the
service, or if the defendant dies before
execution of that sentence as finally approved.
(3) Perjury committed under the statutes of the
United States or the District of Columbia--
(A) in falsely denying the commission of an
act which constitutes an offense within the
purview of--
(i) a statute named by paragraph
(1) of this subsection; or
(ii) an article or statute named by
paragraph (2) of this subsection
insofar as the offense is within the
purview of an article or statute named
by paragraph (1) or (2) (A) of this
subsection;
(B) in falsely testifying before a Federal
grand jury, court of the United States, or
court-martial with respect to his service as an
employee in connection with a matter involving
or relating to an interference with or
endangerment of, or involving or relating to a
plan or attempt to interfere with or endanger,
the national security or defense of the United
States; or
(C) in falsely testifying before a
congressional committee in connection with a
matter under inquiry before the congressional
committee involving or relating to an
interference with or endangerment of, or
involving or relating Mexico to a plan or
attempt to interfere with or endanger, the
national security or defense of the United
States.
(4) Subornation of perjury committed in connection
with the false denial or false testimony of another
individual as specified by paragraph (3) of this
subsection.
(c) The following are the offenses to which subsection (a)
of this section applies if the individual was convicted before,
on, or after September 26, 1961:
(1) An offense within the purview of--
(A) section 2272 (violation of specific
sections) or 2273 (violation of sections
generally of chapter 23 of title 42) of title
42 insofar as the offense is committed with
intent to injure the United States or with
intent to secure an advantage to a foreign
nation;
(B) section 2274 (communication of
restricted data), 2275 (receipt of restricted
data), or 2276 (tampering with restricted data)
of title 42; or
(C) section 783 (conspiracy and
communication or receipt of classified
information) of title 50 or section 601 of the
National Security Act of 1947 (50 U.S.C. 421)
(relating to intelligence identities).
(2) An offense within the purview of a current
article of the Uniform Code of Military Justice
(chapter 47 of title 10) or an earlier article on which
the current article is based, as the case may be, on
the basis of charges and specifications describing a
violation of a statute named by paragraph (1), (3), or
(4) of this subsection, if the executed sentence
includes death, dishonorable discharge, or dismissal
from the service, or if the defendant dies before
execution of that sentence as finally approved.
(3) Perjury committed under the statutes of the
United States or the District of Columbia in falsely
denying the commission of an act which constitutes an
offense within the purview of a statute named by
paragraph (1) of this subsection.
(4) Subornation of perjury committed in connection
with the false denial of another individual as
specified by paragraph (3) of this subsection.
(d)(1) For purposes of subsections (b)(1) and (c)(1), an
offense within the meaning of such subsections is established
if the Attorney General of the United States certifies to the
agency administering the annuity or retired pay concerned--
(A) that an individual subject to this chapter has
been convicted by an impartial court of appropriate
jurisdiction within a foreign country in circumstances
in which the conduct violates the provisions of law
enumerated in subsections (b)(1) and (c)(1), or would
violate such provisions had such conduct taken place
within the United States, and that such conviction is
not being appealed or that final action has been taken
on such appeal;
(B) that such conviction was obtained in accordance
with procedures that provided the defendant due process
rights comparable to such rights provided by the United
States Constitution, and such conviction was based upon
evidence which would have been admissible in the courts
of the United States; and
(C) that such conviction occurred after the date of
enactment of this subsection.
(2) Any certification made pursuant to this subsection
shall be subject to review by the United States Court of Claims
based upon the application of the individual concerned, or his
or her attorney, alleging that any of the conditions set forth
in subparagraphs (A), (B), or (C) of paragraph (1), as
certified by the Attorney General, have not been satisfied in
his or her particular circumstances. Should the court determine
that any of these conditions has not been satisfied in such
case, the court shall order any annuity or retirement benefit
to which the person concerned is entitled to be restored and
shall order that any payments which may have been previously
denied or withheld to be paid by the department or agency
concerned.
Sec. 8313. Absence from the United States to avoid prosecution
(a) An individual, or his survivor or beneficiary, may not
be paid annuity or retired pay on the basis of the service of
the individual which is creditable toward the annuity or
retired pay, subject to the exceptions in section 8311(2) and
(3) of this title, if the individual--
(1) is under indictment, or has outstanding against
him charges preferred under the Uniform Code of
Military Justice--
(A) after July 31, 1956, for an offense
named by section 8312(b) of this title; or
(B) after September 26, 1961, for an
offense named by section 8312(c) of this title;
and
(2) willfully remains outside the United States, or
its territories and possessions including the
Commonwealth of Puerto Rico, for more than 1 year with
knowledge of the indictment or charges, as the case may
be.
(b) The prohibition on payment of annuity or retired pay
under subsection (a) of this section applies to the period
after the end of the 1-year period and continues until--
(1) a nolle prosequi to the entire indictment is
entered on the record or the charges are dismissed by
competent authority;
(2) the individual returns and thereafter the
indictment or charges is or are dismissed; or
(3) after trial by court or court-martial, the
accused is found not guilty of the offense or offenses.
Sec. 8314. Refusal to testify
(a) An individual, or his survivor or beneficiary, may not
be paid annuity or retired pay on the basis of the service of
the individual which is creditable toward the annuity or
retired pay, subject to the exceptions in section 8311(2) and
(3) of this title, if the individual, before, on, or after
September 1, 1954, refused or refuses, or knowingly and
willfully failed or fails, to appear, testify, or produce a
book, paper, record, or other document, relating to his service
as an employee, before a Federal grand jury, court of the
United States, court-martial, or congressional committee, in a
proceeding concerning--
(1) his past or present relationship with a foreign
government; or
(2) a matter involving or relating to an
interference with or endangerment of, or involving or
relating to a plan or attempt to interfere with or
endanger, the national security or defense of the
United States.
(b) The prohibition on payment of annuity or retired pay
under subsection (a) of this section applies to the period
after the date of the failure or refusal of the individual, or
after September 1, 1954, whichever is later.
Sec. 8315. Falsifying employment applications
(a) An individual, or his survivor or beneficiary, may not
be paid annuity or retired pay on the basis of the service of
the individual which is creditable toward the annuity or
retired pay, subject to the exceptions in section 8311(2) and
(3) of this title, if the individual knowingly and willfully
made or makes a false, fictitious, or fraudulent statement or
representation, or knowingly and willfully concealed or
conceals a material fact--
(1) before, on, or after September 1, 1954,
concerning his--
(A) past or present membership in,
affiliation or association with, or support of
the Communist Party, or a chapter, branch, or
subdivision thereof, in or outside the United
States, or other organization, party, or group
advocating--
(i) the overthrow, by force,
violence, or other unconstitutional
means, of the Government of the United
States;
(ii) the establishment, by force,
violence, or other unconstitutional
means, of a Communist totalitarian
dictatorship in the United States; or
(iii) the right to strike against
the United States;
(B) conviction of an offense named by
subsection (b) of section 8312 of this title,
to the extent provided by that subsection; or
(C) failure or refusal to appear, testify,
or produce a book, paper, record, or other
document, as specified by section 8314 of this
title; or
(2) before, on, or after September 26, 1961,
concerning his conviction of an offense named by
subsection (c) of section 8312 of this title, to the
extent provided by that subsection;
in a document executed by the individual in connection with his
employment in, or application for, a civilian or military
office or position in or under the legislative, executive, or
judicial branch of the Government of the United States or the
government of the District of Columbia.
(b) The prohibition on the payment of annuity or retired
pay applies--
(1) with respect to matters specified by subsection
(a)(1) of this section, to the period after the
statement, representation, or concealment of fact is
made or occurs, or after September 1, 1954, whichever
is later; and
(2) with respect to matters specified by subsection
(a)(2) of this section, to the period after the
statement, representation, or concealment of fact is
made or occurs, or after September 26, 1961, whichever
is later.
Sec. 8316. Refund of contributions and deposits
(a) When payment of annuity or retired pay is denied under
this subchapter because an individual was convicted of an
offense named by section 8312 of this title, to the extent
provided by that section, or violated section 8314 or 8315 of
this title--
(1) the amount, except employment taxes,
contributed by the individual toward the annuity, less
the amount previously refunded or paid as annuity
benefits; and
(2) deposits made under section 1438 of title 10 or
section 5 of the Uniformed Services Contingency Option
Act of 1953 (67 Stat. 504) to provide the eligible
beneficiary with annuity for any period, less the
amount previously paid as retired pay benefits;
shall be refunded, on appropriate application therefor--
(A) to the individual;
(B) if the individual is dead, to the beneficiary
designated to receive refunds by or under the statute,
regulation, or agreement under which the annuity, the
benefits of which are denied under this subchapter,
would have been payable; or
(C) if a beneficiary is not designated, in the
order of precedence prescribed by section 8342(c) of
this title or section 2771 of title 10, as the case may
be.
(b) A refund under subsection (a) of this section shall be
made with interest at the rate and for the period provided
under the statute, regulation, or agreement under which the
annuity would have been payable. However, interest may not be
computed--
(1) if the individual was convicted of an offense
named by section 8312(b) of this title, or violated
section 8314 or 8315(a)(1) of this title, for the
period after the conviction or commission of the
violation, or after September 1, 1954, whichever is
later; or
(2) if the individual was convicted of an offense
named by section 8312(c) of this title, or violated
section 8315(a)(2) of this title, for the period after
the conviction or commission of the violation, or after
September 26, 1961, whichever is later.
Sec. 8317. Repayment of annuity or retired pay properly paid; waiver
(a) An individual, or his survivor or beneficiary, to whom
payment of annuity is denied under this subchapter is not
thereafter required to repay that part of the annuity otherwise
properly paid to the individual, or to his survivor or
beneficiary on the basis of the service of the individual,
which is in excess of the aggregate amount of the contributions
of the individual toward the annuity, with applicable interest.
(b) An individual, including an eligible beneficiary under
chapter 73 of title 10 or section 5 of the Uniformed Services
Contingency Option Act of 1953 (67 Stat. 504), to whom payment
of retired pay is denied under this subchapter is not
thereafter required to repay retired pay otherwise properly
paid to the individual or beneficiary which is paid in
violation of this subchapter.
Sec. 8318. Restoration of annuity or retired pay
(a) If an individual who was convicted, before, on, or
after September 1, 1954, of--
(1) an offense named by section 8312 of this title;
or
(2) an offense constituting a violation of section
8314 or 8315 of this title;
is pardoned by the President, the right of the individual and
his survivor or beneficiary to receive annuity or retired pay
previously denied under this subchapter is restored as of the
date of the pardon.
(b) The President may restore, effective as of the date he
prescribes, the right to receive annuity or retired pay which
is denied, before, on, or after September 1, 1954, under
section 8314 or 8315 of this title, to the individual and to
his survivor or beneficiary.
(c) Payment of annuity or retired pay which results from
pardon or restoration by the President under subsection (a) or
(b) of this section may not be made for a period before--
(1) the date of pardon referred to by subsection
(a) of this section; or
(2) the effective date of restoration referred to
by subsection (b) of this section.
(d) Credit for a period of service covered by a refund
under section 8316 of this title is allowed only after the
amount refunded has been redeposited.
(e) The spouse of an individual whose annuity or retired
pay is forfeited under section 8312 or 8313 after the date of
enactment of this subsection shall be eligible for spousal
pension benefits if the Attorney General of the United States
determines that the spouse fully cooperated with Federal
authorities in the conduct of a criminal investigation and
subsequent prosecution of the individual which resulted in such
forfeiture.
Sec. 8319. Removal of members of the uniformed services from rolls;
restoration; reappointment
(a) The President may drop from the rolls a member of a
uniformed service who is deprived of retired pay under this
subchapter.
(b) The President may restore--
(1) military status to an individual dropped from
the rolls to whom retired pay is restored under this
subchapter or under section 2 of the Act of September
26, 1961 (75 Stat. 648); and
(2) all rights and privileges to the individual and
his beneficiaries of which he or they were deprived
because his name was dropped from the rolls.
(c) If the individual restored was a commissioned officer,
the President alone may reappoint him to the grade and position
on the retired list held when his name was dropped from the
rolls.
Sec. 8320. Offense or violation committed in compliance with orders
When it is established by satisfactory evidence that an
individual--
(1) was convicted of an offense named by section
8312 of this title; or
(2) violated section 8314 or 8315 of this title;
as a result of proper compliance with orders issued, in a
confidential relationship, by an agency or other authority of
the Government of the United States or the government of the
District of Columbia, the right to receive annuity or retired
pay may not be denied.
Sec. 8321. Liability of accountable employees
An accountable employee may not be held responsible for a
payment made in violation of this subchapter when the payment
made is in due course and without fraud, collusion, or gross
negligence.
Sec. 8322. Effect on other statutes
This subchapter does not restrict authority under a
statute, other than this subchapter, to deny or withhold
benefits authorized by statute.
SUBCHAPTER III--CIVIL SERVICE RETIREMENT
Sec. 8331. Definitions
For the purpose of this subchapter--
(1) ``employee'' means--
(A) an employee as defined by section 2105
of this title;
(B) the Architect of the Capitol, an
employee of the Architect of the Capitol, and
an employee of the Botanic Garden;
(C) a Congressional employee as defined by
section 2107 of this title (other than the
Architect of the Capitol, an employee of the
Architect of the Capitol, and an employee of
the Botanic Garden), after he gives notice in
writing to the official by whom he is paid of
his desire to become subject to this
subchapter;
(D) a temporary Congressional employee
appointed at an annual rate of pay, after he
gives notice in writing to the official by whom
he is paid of his desire to become subject to
this subchapter;
(E) a United States Commissioner whose
total pay for services performed as
Commissioner is not less than $3,000 in each of
the last 3 consecutive calendar years ending
after December 31, 1954;
(F) an individual employed by a county
committee established under section 590h(b) of
title 16;
(G) an individual first employed by the
government of the District of Columbia before
October 1, 1987;
(H) an individual employed by Gallaudet
College;
(I) an individual appointed to a position
on the office staff of a former President under
section 1(b) of the Act of August 25, 1958 (72
Stat. 838);
(J) an alien (i) who was previously
employed by the Government, (ii) who is
employed full time by a foreign government for
the purpose of protecting or furthering the
interests of the United States during an
interruption of diplomatic or consular
relations, and (iii) for whose services
reimbursement is made to the foreign government
by the United States;
(K) an individual appointed to a position
on the office staff of a former President, or a
former Vice President under section 4 of the
Presidential Transition Act of 1963, as amended
(78 Stat. 153), who immediately before the date
of such appointment was an employee as defined
under any other subparagraph of this paragraph;
and
(L) an employee described in section
2105(c) who has made an election under section
8347(q)(1) to remain covered under this
subchapter;
but does not include--
(i) a justice or judge of the United States
as defined by section 451 of title 28;
(ii) an employee subject to another
retirement system for Government employees
(besides any employee excluded by clause (x),
but including any employee who has made an
election under section 8347(q)(2) to remain
covered by a retirement system established for
employees described in section 2105(c));
(iii) an employee or group of employees in
or under an Executive agency excluded by the
Office of Personnel Management under section
8347(g) of this title;
(iv) an individual or group of individuals
employed by the government of the District of
Columbia excluded by the Office under section
8347(h) of this title;
(v) an employee of the Administrative
Office of the United States Courts, the Federal
Judicial Center, or a court named by section
610 of title 28, excluded by the Director of
the Administrative Office under section 8347(o)
of this title;
(vi) a construction employee or other
temporary, part-time, or intermittent employee
of the Tennessee Valley Authority;
(vii) an employee under the Office of the
Architect of the Capitol excluded by the
Architect of the Capitol under section 8347(i)
of this title;
(viii) an employee under the Library of
Congress excluded by the Librarian of Congress
under section 8347(j) of this title;
(ix) a student-employee as defined by
section 5351 of this title;
(x) an employee subject to the Federal
Employees' Retirement System;
(xi) an employee under the Botanic Garden
excluded by the Director or Acting Director of
the Botanic Garden under section 8347(l) of
this title; or
(xii) a member of the Foreign Service (as
described in section 103(6) of the Foreign
Service Act of 1980), appointed after December
31, 1987.
Notwithstanding this paragraph, the employment of a
teacher in the recess period between two school years
in a position other than a teaching position in which
he served immediately before the recess period does not
qualify the individual as an employee for the purpose
of this subchapter. For the purpose of the preceding
sentence, ``teacher'' and ``teaching position'' have
the meanings given them by section 901 of title 20;
(2) ``Member'' means a Member of Congress as
defined by section 2106 of this title, after he gives
notice in writing to the official by whom he is paid of
his desire to become subject to this subchapter, but
does not include any such Member of Congress who is
subject to the Federal Employees' Retirement System or
who makes an election under section 8401(20) of this
title not to be subject to such System;
(3) ``basic pay'' includes--
(A) the amount a Member received from April
1, 1954, to February 28, 1955, as expense
allowance under section 601(b) of the
Legislative Reorganization Act of 1946 (60
Stat. 850), as amended; and that amount from
January 3, 1953, to March 31, 1954, if deposit
is made therefor as provided by section 8334 of
this title;
(B) additional pay provided by--
(i) subsection (a) of section 60e-7
of title 2 and the provisions of law
referred to by that subsection; and
(ii) sections 60e-8, 60e-9, 60e-10,
60e-11, 60e-12, 60e-13, and 60e-14 of
title 2;
(C) premium pay under section 5545(c)(1) of
this title;
(D) with respect to a law enforcement
officer, premium pay under section 5545(c)(2)
of this title;
(E) with respect to a criminal
investigator, availability pay under section
5545a of this title;
(F) pay as provided in section 5545b (b)(2)
and (c)(2);
(G) with respect to a customs officer
(referred to in subsection (e)(1) of section 5
of the Act of February 13, 1911), compensation
for overtime inspectional services provided for
under subsection (a) of such section 5, but not
to exceed 50 percent of any statutory maximum
in overtime pay for customs officers which is
in effect for the year involved; and
(H) any amount received under section 5948
(relating to physicians comparability
allowances);
but does not include bonuses, allowances, overtime pay,
military pay, pay given in addition to the base pay of
the position as fixed by law or regulation except as
provided by subparagraphs (B) through (H) of this
paragraph, retroactive pay under section 5344 of this
title in the case of a retired or deceased employee,
uniform allowances under section 5901 of this title, or
lump-sum leave payments under subchapter VI of chapter
55 of this title. For an employee paid on a fee basis,
the maximum amount of basic pay which may be used is
$10,000;
(4) ``average pay'' means the largest annual rate
resulting from averaging an employee's or Member's
rates of basic pay in effect over any 3 consecutive
years of creditable service or, in the case of an
annuity under subsection (d) or (e)(1) of section 8341
of this title based on service of less than 3 years,
over the total service, with each rate weighted by the
time it was in effect;
(5) ``Fund'' means the Civil Service Retirement and
Disability Fund;
[(6) Repealed. Pub. L. 96-499, title IV,
Sec. 403(b), Dec. 5, 1980, 94 Stat. 2606.]
(7) ``Government'' means the Government of the
United States, the government of the District of
Columbia, Gallaudet University, and, in the case of an
employee described in paragraph (1)(L), a
nonappropriated fund instrumentality of the Department
of Defense or the Coast Guard described in section
2105(c);
(8) ``lump-sum credit'' means the unrefunded amount
consisting of--
(A) retirement deductions made from the
basic pay of an employee or Member;
(B) amounts deposited by an employee or
Member covering earlier service, including any
amounts deposited under section 8334(j) of this
title; and
(C) interest on the deductions and deposits
at 4 percent a year to December 31, 1947, and 3
percent a year thereafter compounded annually
to December 31, 1956, or, in the case of an
employee or Member separated or transferred to
a position in which he does not continue
subject to this subchapter before he has
completed 5 years of civilian service, to the
date of the separation or transfer;
but does not include interest--
(i) if the service covered thereby
aggregates 1 year or less; or
(ii) for the fractional part of a month in
the total service;
(9) ``annuitant'' means a former employee or Member
who, on the basis of his service meets all requirements
of this subchapter for title to annuity and files claim
therefor;
(10) ``survivor'' means an individual entitled to
annuity under this subchapter based on the service of a
deceased employee, Member, or annuitant;
(11) ``survivor annuitant'' means a survivor who
files claim for annuity;
(12) ``service'' means employment creditable under
section 8332 of this title;
(13) ``military service'' means honorable active
service--
(A) in the armed forces;
(B) in the Regular or Reserve Corps of the
Public Health Service after June 30, 1960; or
(C) as a commissioned officer of the
Environmental Science Services Administration
after June 30, 1961;
but does not include service in the National Guard
except when ordered to active duty in the service of
the United States or full-time National Guard duty (as
such term is defined in section 101(d) of title 10) if
such service interrupts creditable civilian service
under this subchapter and is followed by reemployment
in accordance with chapter 43 of title 38 that occurs
on or after August 1, 1990;
(14) ``member service'' means service as a Member
and includes the period from the date of the beginning
of the term for which elected or appointed to the date
on which he takes office as a Member;
(15) ``price index'' means the Consumer Price Index
(all items--United States city average) published
monthly by the Bureau of Labor Statistics;
(16) ``base month'' means the month for which the
price index showed a percent rise forming the basis for
a cost-of-living annuity increase;
(17) ``normal cost'' means the entry-age normal
cost computed by the Office of Personnel Management in
accordance with generally accepted actuarial practice
and expressed as a level percentage of aggregate basic
pay;
(18) ``Fund balance'' means the sum of--
(A) the investments of the Fund calculated
at par value; and
(B) the cash balance of the Fund on the
books of the Treasury;
but does not include any amount attributable to--
(i) the Federal Employees' Retirement
System; or
(ii) contributions made under the Federal
Employees' Retirement Contribution Temporary
Adjustment Act of 1983 by or on behalf of any
individual who became subject to the Federal
Employees' Retirement System;
(19) ``unfunded liability'' means the estimated
excess of the present value of all benefits payable
from the Fund to employees and Members, and former
employees and Members, subject to this subchapter, and
to their survivors, over the sum of--
(A) the present value of deductions to be
withheld from the future basic pay of employees
and Members currently subject to this
subchapter and of future agency contributions
to be made in their behalf; plus
(B) the present value of Government
payments to the Fund under section 8348(f) of
this title; plus
(C) the Fund balance as of the date the
unfunded liability is determined;
(20) ``law enforcement officer'' means an employee,
the duties of whose position are primarily the
investigation, apprehension, or detention of
individuals suspected or convicted of offenses against
the criminal laws of the United States, including an
employee engaged in this activity who is transferred to
a supervisory or administrative position. For the
purpose of this paragraph, ``detention'' includes the
duties of--
(A) employees of the Bureau of Prisons and
Federal Prison Industries, Incorporated;
(B) employees of the Public Health Service
assigned to the field service of the Bureau of
Prisons or of the Federal Prison Industries,
Incorporated;
(C) employees in the field service at Army
or Navy disciplinary barracks or at confinement
and rehabilitation facilities operated by any
of the armed forces; and
(D) employees of the Department of
Corrections of the District of Columbia, its
industries and utilities;
whose duties in connection with individuals in
detention suspected or convicted of offenses against
the criminal laws of the United States or of the
District of Columbia or offenses against the punitive
articles of the Uniformed Code of Military Justice
(chapter 47 of title 10) require frequent (as
determined by the appropriate administrative authority
with the concurrence of the Office) direct contact with
these individuals in their detention, direction,
supervision, inspection, training, employment, care,
transportation, or rehabilitation;
(21) ``firefighter'' means an employee, the duties
of whose position are primarily to perform work
directly connected with the control and extinguishment
of fires or the maintenance and use of firefighting
apparatus and equipment, including an employee engaged
in this activity who is transferred to a supervisory or
administrative position;
(22) ``bankruptcy judge'' means an individual--
(A) who is appointed under section 34 of
the Bankruptcy Act (11 U.S.C. 62) or under
section 404(d) of the Act of November 6, 1978
(Public Law 95-598; 92 Stat. 2549), and--
(i) who is serving as a United
States bankruptcy judge on March 31,
1984; or
(ii) whose service as a United
States bankruptcy judge at any time in
the period beginning on October 1,
1979, and ending on July 10, 1984, is
terminated by reason of death or
disability; or
(B) who is appointed as a bankruptcy judge
under section 152 of title 28;
(23) ``former spouse'' means a former spouse of an
individual--
(A) if such individual performed at least
18 months of civilian service covered under
this subchapter as an employee or Member, and
(B) if the former spouse was married to
such individual for at least 9 months;
(24) ``Indian court'' means an Indian court as
defined by section 201(3) of the Act entitled ``An Act
to prescribe penalties for certain acts of violence or
intimidation, and for other purposes'', approved April
11, 1968 (25 U.S.C. 1301(3); 82 Stat. 77);
(25) ``magistrate'' or ``United States magistrate''
means an individual appointed under section 631 of
title 28;
(26) ``Claims Court judge'' means a judge of the
United States Claims court who is appointed under
chapter 7 of title 28 or who has served under section
167 of the Federal Courts Improvement Act of 1982;
(27) ``Nuclear materials courier''--
(A) means an employee of the Department of
Energy, the duties of whose position are
primarily to transport, and provide armed
escort and protection during transit of,
nuclear weapons, nuclear weapon components,
strategic quantities of special nuclear
materials or other materials related to
national security; and
(B) includes an employee who is transferred
directly to a supervisory or administrative
position within the same Department of Energy
organization, after performing duties referred
to in subparagraph (A) for at least 3 years;
and
(28) ``Government physician'' has the meaning given
that term under section 5948.
Sec. 8332. Creditable service
(a) The total service of an employee or Member is the full
years and twelfth parts thereof, excluding from the aggregate
the fractional part of a month, if any.
(b) The service of an employee shall be credited from the
date of original employment to the date of separation on which
title to annuity is based in the civilian service of the
Government. Except as provided in paragraph (13) of this
subsection, credit may not be allowed for a period of
separation from the service in excess of 3 calendar days. The
service includes--
(1) employment as a substitute in the postal field
service;
(2) service in the Pan American Sanitary Bureau;
(3) subject to sections 8334(c) and 8339(i) of this
title, service performed before July 10, 1960, as an
employee of a county committee established under
section 590h(b) of title 16 or of a committee or an
association of producers described by section 610(b) of
title 7;
(4) service as a student-employee as defined by
section 5351 of this title only if he later becomes
subject to this subchapter;
(5) a period of satisfactory service of a volunteer
or volunteer leader under chapter 34 of title 22 only
if he later becomes subject to this subchapter;
(6) employment under section 709 of title 32 or any
prior corresponding provision of law;
(7) a period of service of a volunteer under part A
of title VIII of the Economic Opportunity Act of 1964,
or a period of service of a full-time volunteer
enrolled in a program of at least one year's duration
under part A, B, or C of title I of the Domestic
Volunteer Service Act of 1973 only if he later becomes
subject to this subchapter;
(8) subject to sections 8334(c) and 8339(i) of this
title, service performed after February 18, 1929, and
before noon on January 3, 1971, as a United States
Capitol Guide;
(9) subject to sections 8334(c) and 8339(i) of this
title, service as a substitute teacher for the
government of the District of Columbia after July 1,
1955, if such service is not credited for benefits
under any other retirement system established by a law
of the United States;
(10) periods of imprisonment of a foreign national
for which compensation is provided under section 410 of
the Foreign Service Act of 1980, if the individual (A)
was subject to this subchapter during employment with
the Government last preceding imprisonment, or (B) is
qualified for an annuity under this subchapter on the
basis of other service of the individual;
(11) subject to sections 8334(c) and 8339(i) of
this title, service in any capacity of at least 130
days (or its equivalent) per calendar year performed
after July 1, 1946, for the National Committee for a
Free Europe; Free Europe Committee, Incorporated; Free
Europe, Incorporated; Radio Liberation Committee; Radio
Liberty Committee; subdivisions of any of those
organizations; Radio Free Europe/Radio Liberty,
Incorporated; Radio Free Asia; the Asia Foundation; or
the Armed Forces Network, Europe (AFN-E), but only if
such service is not credited for benefits under any
other retirement system which is established for such
entities and funded in whole or in part by the
Government and only if the individual later becomes
subject to this subchapter;
(12) service as a justice or judge of the United
States, as defined by section 451 of title 28, and
service as a judge of a court created by Act of
Congress in a territory which is invested with any
jurisdiction of a district court of the United States,
but no credit shall be allowed for such service if the
employee is entitled to a salary or an annuity under
section 371, 372, or 373 of title 28;
(13) subject to sections 8334(c) and 8339(i) of
this title, service performed on or after December 6,
1967, and before the effective date of this paragraph
as an employee of the House Beauty Shop, only if he
serves as such an employee for a period of at least
five years after such effective date;
(14) one year of service to be credited for each
year in which a Native of the Pribilof Islands performs
service in the taking and curing of fur seal skins and
other activities in connection with the administration
of the Pribilof Islands, notwithstanding any period of
separation from the service, and regardless of whether
the Native who performs the service retires before, on,
or after the effective date of this paragraph;
(15) subject to sections 8334(c) and 8339(i) of
this title, service performed on or after January 3,
1969, and before January 4, 1973, as the Washington
Representative for Guam or the Washington
Representative for the Virgin Islands, only if the
individual serves as a Member for a period of at least
five years after January 2, 1973; and
(16) service performed by any individual as an
employee described in section 2105(c) of this title
after June 18, 1952, and before January 1, 1966, if (A)
such service involved conducting an arts and crafts,
drama, music, library, service club, youth activities,
sports, or recreation program (including any outdoor
recreation program) for personnel of the armed forces,
and (B) such individual is an employee subject to this
subchapter on the day before the date of the enactment
of the Nonappropriated Fund Instrumentalities
Employees' Retirement Credit Act of 1986.
The Office of Personnel Management shall accept the
certification of the Secretary of Agriculture or his designee
concerning service for the purpose of this subchapter of the
type performed by an employee named by paragraph (3) of this
subsection. The Office of Personnel Management shall accept the
certification of the Secretary of Commerce or his designee
concerning service for the purpose of this subchapter of the
type performed by an employee named by paragraph (14) of this
subsection. The Office of Personnel Management shall accept the
certification of the Capitol Guide Board concerning service for
the purpose of this subchapter of the type described in
paragraph (8) of this subsection and performed by an employee.
The Office of Personnel Management shall accept the
certification of the Chief Administrative Officer of the House
of Representatives concerning service for the purpose of this
subchapter of the type described in paragraph (13) of this
subsection. For the purpose of paragraph (5) of this
subsection--
(A) a volunteer and a volunteer leader are deemed
receiving pay during their service at the respective
rates of readjustment allowances payable under sections
2504(c) and 2505(1) of title 22; and
(B) the period of an individual's service as a
volunteer or volunteer leader under chapter 34 of title
22 is the period between enrollment as a volunteer or
volunteer leader and the termination of that service by
the President or by death or resignation.
The Office of Personnel Management shall accept the
certification of the Executive Director of the Board for
International Broadcasting, and the Secretary of State with
respect to the Asia Foundation and the Secretary of Defense
with respect to the Armed Forces Network, Europe (AFN-E),
concerning services for the purposes of this subchapter of the
type described in paragraph (11) of this subsection. For the
purpose of this subchapter, service of the type described in
paragraph (15) of this subsection shall be considered Member
service. The Office of Personnel Management shall accept, for
the purposes of this subchapter, the certification of the head
of a nonappropriated fund instrumentality of the United States
concerning service of the type described in paragraph (16) of
this subsection which was performed for such appropriated fund
instrumentality.
(c)(1) Except as provided in paragraphs (2) and (4) of this
subsection and subsection (d) of this section--
(A) the service of an individual who first becomes
an employee or Member before October 1, 1982, shall
include credit for each period of military service
performed before the date of the separation on which
the entitlement to an annuity under this subchapter is
based, subject to section 8332(j) of this title; and
(B) the service of an individual who first becomes
an employee or Member on or after October 1, 1982,
shall include credit for--
(i) each period of military service
performed before January 1, 1957, and
(ii) each period of military service
performed after December 31, 1956, and before
the separation on which the entitlement to
annuity under this subchapter is based, only if
a deposit (with interest, if any) is made with
respect to that period, as provided in section
8334(j) of this title.
(2) If an employee or Member is awarded retired pay based
on any period of military service, the service of the employee
or Member may not include credit for such period of military
service unless the retired pay is awarded--
(A) based on a service-connected disability--
(i) incurred in combat with an enemy of the
United States; or
(ii) caused by an instrumentality of war
and incurred in line of duty during a period of
war as defined by section 301 of title 38; or
(B) under chapter 1223 of title 10 (or under
chapter 67 of that title as in effect before the
effective date of the Reserve Officer Personnel
Management Act).
(3)(A) Notwithstanding paragraph (2) of this subsection,
for purposes of computing a survivor annuity for a survivor of
an employee or Member--
(i) who was awarded retired pay based on any period
of military service, and
(ii) whose death occurs before separation from the
service,
creditable service of the deceased employee or Member shall
include each period of military service includable under
subparagraph (A) or (B) of paragraph (1) of this subsection, as
applicable. In carrying out this subparagraph, any amount
deposited under section 8334(h) of this title shall be taken
into account.
(B) A survivor annuity computed based on an amount which,
under authority of subparagraph (A), takes into consideration
any period of military service shall be reduced by the amount
of any survivor's benefits--
(i) payable to a survivor (other than a child)
under a retirement system for members of the uniformed
services;
(ii) if, or to the extent that, such benefits are
based on such period of military service.
(C) The Office of Personnel Management shall prescribe
regulations to carry out this paragraph, including regulations
under which--
(i) a survivor may elect not to be covered by this
paragraph; and
(ii) this paragraph shall be carried out in any
case which involves a former spouse.
(4) If, after January 1, 1997, an employee or Member waives
retired pay that is subject to a court order for which there
has been effective service on the Secretary concerned for
purposes of section 1408 of title 10, the military service on
which the retired pay is based may be credited as service for
purposes of this subchapter only if the employee or Member
authorizes the Director to deduct and withhold from the annuity
payable to the employee or Member under this subchapter an
amount equal to the amount that, if the annuity payment was
instead a payment of the employee's or Member's retired pay,
would have been deducted and withheld and paid to the former
spouse covered by the court order under such section 1408. The
amount deducted and withheld under this paragraph shall be paid
to that former spouse. The period of civil service employment
by the employee or Member shall not be taken into consideration
in determining the amount of the deductions and withholding or
the amount of the payment to the former spouse. The Director of
the Office of Personnel Management shall prescribe regulations
to carry out this paragraph.
(d) For the purpose of section 8339(c)(1) of this title, a
Member--
(1) shall be allowed credit only for periods of
military service not exceeding 5 years, plus military
service performed by the Member on leaving his office,
for the purpose of performing military service, during
a war or national emergency proclaimed by the President
or declared by Congress and before his final separation
from service as Member; and
(2) may not receive credit for military service for
which credit is allowed for purpose of retired pay
under other statute.
(e) This subchapter does not affect the right of an
employee or Member to retired pay, pension, or compensation in
addition to an annuity payable under this subchapter.
(f) Credit shall be allowed for leaves of absence without
pay granted an employee while performing military service or
while receiving benefits under subchapter I of chapter 81 of
this title. An employee or former employee who returns to duty
after a period of separation is deemed, for the purpose of this
subsection, to have been in a leave of absence without pay for
that part of the period in which he was receiving benefits
under subchapter I of chapter 81 of this title or any earlier
statute on which such subchapter is based. Except for a
substitute in the postal field service, and service described
in paragraph (14) of subsection (b) of this section, credit may
not be allowed for so much of other leaves of absence without
pay as exceeds 6 months in the aggregate in a calendar year.
(g) An employee who during the period of a war, or of a
national emergency as proclaimed by the President or declared
by Congress, leaves his position to enter the military service
is deemed, for the purpose of this subchapter, as not separated
from his civilian position because of that military service,
unless he applies for and receives a lump-sum credit under this
subchapter. However, the employee is deemed as not retaining
his civilian position after December 31, 1956, or after the
expiration of 5 years of that military service, whichever is
later.
(h) An employee who--
(1) has at least 5 years' Member service; and
(2) serves as a Member at any time after August 2,
1946;
may not be allowed credit for service which is used in the
computation of an annuity under section 8339(c) of this title.
(i) An individual who qualifies as an employee under
section 8331(1)(E) of this title is entitled to credit for his
service as a United States Commissioner, which is not credited
for the purpose of this subchapter for service performed by him
in a capacity other than Commissioner, on the basis of--
(1) 1/313 of a year for each day on which he
performed service as a Commissioner before July 1,
1945; and
(2) 1/260 of a year for each day on which he
performed service as a Commissioner after June 30,
1945.
Credit for service performed as Commissioner may not exceed 313
days in a year before July 1, 1945, or 260 days in a year after
June 30, 1945. For the purpose of this subchapter, the
employment and pay of a Commissioner is deemed on a daily basis
when actually employed.
(j)(1) Notwithstanding any other provision of this section,
military service, except military service covered by military
leave with pay from a civilian position, performed by an
individual after December 1956, the period of an individual's
services as a volunteer under part A of title VIII of the
Economic Opportunity Act of 1964, the period of an individual's
service as a full-time volunteer enrolled in a program of at
least 1 year's duration under part A, B, or C of title I of the
Domestic Volunteer Service Act of 1973, and the period of an
individual's service as a volunteer or volunteer leader under
chapter 34 of title 22, shall be excluded in determining the
aggregate period of service on which an annuity payable under
this subchapter to the individual or to his spouse, former
spouse or child is based, if the individual, spouse, former
spouse, or child is entitled, or would on proper application be
entitled, at the time of that determination, to monthly old-age
or survivors benefits under section 402 of title 42 based on
the individual's wages and self-employment income. If the
military service or service as a volunteer under part A of
title VIII of the Economic Opportunity Act of 1964, as a full-
time volunteer enrolled in a program of at least 1 year's
duration under part A, B, or C of title I of the Domestic
Volunteer Service Act of 1973, or as a volunteer or volunteer
leader under chapter 34 of title 22 is not excluded by the
preceding sentence, but on becoming 62 years of age, the
individual or widow becomes entitled, or would on proper
application be entitled, to the described benefits, the Office
of Personnel Management shall redetermine the aggregate period
of service on which the annuity is based, effective as of the
first day of the month in which he or she becomes 62 years of
age, so as to exclude that service. The Secretary of Health,
Education, and Welfare, on request of the Office, shall inform
the Office whether or not the individual, spouse, former
spouse, or child is entitled at any named time to the described
benefits. For the purpose of this subsection, the period of an
individual's service as a volunteer or volunteer leader, under
chapter 34 of title 22 is the period between enrollment as a
volunteer or volunteer leader and termination of that service
by the President or by death or resignation and the period of
an individual's service as a volunteer under part A of title
VIII of the Economic Opportunity Act of 1964 or under part A,
B, or C of title I of the Domestic Volunteer Service Act of
1973 is the period between enrollment as a volunteer and
termination of that service by the Director of the Office of
Economic Opportunity or the Chief Executive Officer of the
Corporation for National and Community Service,\1\ as
appropriate, or by death or resignation.
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\1\ Subclause (II) of section 371(a)(1)(A)(iii) of P.L. 103-82
inserted ``or the Chief Executive Officer of the Corporation for
National and Community Service, as appropriate,'' after ``Director of
the Office of Economic Opportunity''. The inserted text probably should
have been ``or the Director of ACTION, as appropriate,''. Section
405(b) of P.L. 103-82 amended subsection (j)(1) (as amended by section
371(a)(1)(A)(iii)(II) of P.L. 103-82) by striking ``the Director of
ACTION'' and inserting ``the Chief Executive Officer of the Corporation
for National and Community Service''. This amendment could not be
executed because the text proposed to be struck does not appear.
Section 406(b) of P.L. 103-82 provides that the amendments made by
sections 404 and 405 shall take effect on the effective date of section
203(c)(2). Subsection (d)(1) of section 203 is as follows:
(d) Effective Date.--
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(1) In general.--Except as provided in paragraph (2), this
section, and the amendments made by this section, shall take
effect--
(A) 18 months after the date of enactment [March 21,
1995] of this Act; or
(B) on such earlier date as the President shall
determine to be appropriate and announce by
proclamation published in the Federal Register.
(2) The provisions of paragraph (1) of this subsection
relating to credit for military service shall not apply to--
(A) any period of military service of an employee
or Member with respect to which the employee or Member
has made a deposit with interest, if any, under section
8334(j) of this title; or
(B) the service of any employee or Member described
in section 8332(c)(1)(B) of this title.
(3) The provisions of paragraph (1) relating to credit for
service as a volunteer or volunteer leader under the Economic
Opportunity Act of 1964, part A, B, or C of title I of the
Domestic Volunteer Service Act of 1973, or the Peace Corps Act
shall not apply to any period of service as a volunteer or
volunteer leader of an employee or Member with respect to which
the employee or Member has made the deposit with interest, if
any, required by section 8334(l).
(k)(1) An employee who enters on approved leave without pay
to serve as a full-time officer or employee of an organization
composed primarily of employees as defined by section 8331(1)
of this title, within 60 days after entering on that leave
without pay, may file with his employing agency an election to
receive full retirement credit for his periods of that leave
without pay and arrange to pay currently into the Fund, through
his employing agency, amounts equal to the retirement
deductions and agency contributions that would be applicable if
he were in pay status. If the election and all payments
provided by this paragraph are not made, the employee may not
receive credit for the periods of leave without pay occurring
after July 17, 1966, notwithstanding the third sentence of
subsection (f) of this section. For the purpose of the
preceding sentence, ``employee'' includes an employee who was
on approved leave without pay and serving as a full-time
officer or employee of such an organization on July 18, 1966,
and who filed a similar election before September 17, 1966.
(2) An employee may deposit with interest an amount equal
to retirement deductions representing any period or periods of
approved leave without pay while serving, before July 18, 1966,
as a full-time officer or employee of an organization composed
primarily of employees as defined by section 8331(1) of this
title. An employee who makes the deposit shall be allowed full
retirement credit for the period or periods of leave without
pay. If the employee dies, a survivor as defined by section
8331(10) of this title may make the deposit. If the deposit is
not made in full, retirement credit shall be allowed in
accordance with the second sentence of subsection (f) of this
section.
(l)(1) Any employee or Member who--
(A) is of Japanese ancestry; and
(B) while a citizen of the United States or an
alien lawfully admitted to the United States for
permanent residence, was interned or otherwise detained
at any time during World War II in any camp,
installation, or other facility in the United States,
or in any territory or possession of the United States,
under any policy or program of the United States
respecting individuals of Japanese ancestry which was
established during World War II in the interests of
national security pursuant to--
(i) Executive Order Numbered 9066, dated
February 19, 1942;
(ii) section 67 of the Act entitled ``An
Act to provide a government for the Territory
of Hawaii'', approved April 30, 1900 (chapter
339, Fifty-sixth Congress; 31 Stat. 153);
(iii) Executive Order Numbered 9489, dated
October 18, 1944;
(iv) sections 4067 through 4070 of the
Revised Statutes of the United States; or
(v) any other statute, rules, regulation,
or order; or
(C) is of Aleut ancestry and while a citizen of the
United States was interned or otherwise detained in, or
relocated to any camp, installation, or other facility
in the Territory of Alaska which was established during
World War II for the purpose of the internment,
detention, or relocation of Aleuts pursuant to any
statute, rule, regulation, or order;
shall be allowed credit (as civilian service) for any period
during which such employee or Member was so interned or
otherwise detained after such employee became 18 years of age.
(2) For the purpose of this subsection, ``World War II''
means the period beginning on December 7, 1941, and ending on
December 31, 1946.
(m)(1) Upon application to the Office of Personnel
Management, any individual who is an employee on the date of
the enactment of this subsection, and who has on such date or
thereafter acquires 5 years or more of creditable civilian
service under this section (exclusive of service for which
credit is allowed under this subsection) shall be allowed
credit (as service as a Congressional employee) for service
before the date of the enactment of this subsection while
employed by the Democratic Senatorial Campaign Committee, the
Republican Senatorial Campaign Committee, the Democratic
National Congressional Committee, or the Republican National
Congressional Committee, if--
(A) such employee has at least 4 years and 6 months
of service on such committees as of December 12, 1980;
and
(B) such employee makes a deposit to the Fund in an
amount equal to the amount which would be required
under section 8334(c) of this title if such service
were service as a Congressional employee.
(2) Upon application to the Office of Personnel Management,
any individual who was an employee on the date of enactment of
this paragraph, and who has on such date or thereafter acquires
5 years or more of creditable civilian service under this
section (exclusive of service for which credit is allowed under
this subsection) shall be allowed credit (as service as a
congressional employee) for service before December 31, 1990,
while employed by the Democratic Senatorial Campaign Committee,
the Republican Senatorial Campaign Committee, the Democratic
National Congressional Committee, or the Republican National
Congressional Committee, if--
(A) such employee has at least 4 years and 6 months
of service on such committees as of December 31, 1990;
and
(B) such employee makes a deposit to the Fund in an
amount equal to the amount which would be required
under section 8334(c) if such service were service as a
congressional employee.
(3) The Office shall accept the certification of the
President of the Senate (or his designee) or the Speaker of the
House (or his designee), as the case may be, concerning the
service of, and the amount of compensation received by, an
employee with respect to which credit is to be sought under
this subsection.
(4) An individual receiving credit for service for any
period under this subsection shall not be granted credit for
such service under the provisions of the Social Security Act.
(n) Any employee who--
(1) served in a position in which the employee was
excluded from coverage under this subchapter because
the employee was covered under a retirement system
established under section 10 of the Federal Reserve
Act; and
(2) transferred without a break in service to a
position to which the employee was appointed by the
President, with the advice and consent of the Senate,
and in which position the employee is subject to this
subchapter,
shall be treated for all purposes of this subchapter as if any
service that would have been creditable under the retirement
system established under section 10 of the Federal Reserve Act
was service performed while subject to this subchapter if any
employee and employer deductions, contributions or rights with
respect to the employee's service are transferred from such
retirement system to the Fund.
Sec. 8333. Eligibility for annuity
(a) An employee must complete at least 5 years of civilian
service before he is eligible for an annuity under this
subchapter.
(b) An employee or Member must complete, within the last 2
years before any separation from service, except a separation
because of death or disability, at least 1 year of creditable
civilian service during which he is subject to this subchapter
before he or his survivors are eligible for annuity under this
subchapter based on the separation. If an employee or Member,
except an employee or Member separated from the service because
of death or disability, fails to meet the service requirement
of the preceding sentence, the amounts deducted from his pay
during the service for which no eligibility for annuity is
established based on the separation shall be returned to him on
the separation. Failure to meet this service requirement does
not deprive the individual or his survivors of annuity rights
which attached on a previous separation.
(c) A Member or his survivor is eligible for an annuity
under this subchapter only if the amounts named by section 8334
of this title have been deducted or deposited with respect to
his last 5 years of civilian service, or, in the case of a
survivor annuity under section 8341(d) or (e)(1) of this title,
with respect to his total service.
Sec. 8334. Deductions, contributions, and deposits
(a)(1) The employing agency shall deduct and withhold from
the basic pay of an employee, Member, Congressional employee,
law enforcement officer, firefighter, bankruptcy judge, judge
of the United States Court of Appeals for the Armed Forces,
United States magistrate, Court of Federal Claims judge, member
of the Capitol Police, member of the Supreme Court Police, or
nuclear materials courier, as the case may be, the percentage
of basic pay applicable under subsection (c). An equal amount
shall be contributed from the appropriation or fund used to pay
the employee or, in the case of an elected official, from an
appropriation or fund available for payment of other salaries
of the same office or establishment. When an employee in the
legislative branch is paid by the Chief Administrative Officer
of the House of Representatives, the Chief Administrative
Officer may pay from the applicable accounts of the House of
Representatives the contribution that otherwise would be
contributed from the appropriation or fund used to pay the
employee.
(2) The amounts so deducted and withheld, together with the
amounts so contributed, shall be deposited in the Treasury of
the United States to the credit of the Fund under such
procedures as the Secretary of the Treasury may prescribe.
Deposits made by an employee or Member also shall be credited
to the Fund.
(b) Each employee or Member is deemed to consent and agree
to these deductions from basic pay. Notwithstanding any law or
regulation affecting the pay of an employee or Member, payment
less these deductions is a full and complete discharge and
acquittance of all claims and demands for regular services
during the period covered by the payment, except the right to
the benefits to which the employee or Member is entitled under
this subchapter.
(c) Each employee or Member credited with civilian service
after July 31, 1920, for which retirement deductions or
deposits have not been made, may deposit with interest an
amount equal to the following percentages of his basic pay
received for that service:
Percentage of basic pay
Service period
Employee............................... 2\1/2\................... August 1, 1920, to June 30, 1926.
3\1/2\................... July 1, 1926, to June 30, 1942.
5........................ July 1, 1942, to June 30, 1948.
6........................ July 1, 1948, to October 31, 1956.
6\1/2\................... November 1, 1956, to December 31, 1969.
7........................ January 1, 1970, to December 31, 1998.
7.25..................... January 1, 1999, to December 31, 1999.
7.4...................... January 1, 2000, to December 31, 2000.
7........................ After December 31, 2000.
Member or employee for Congressional 2\1/2\................... August 1, 1920, to June 30, 1926.
employee service.
3\1/2\................... July 1, 1926, to June 30, 1942.
5........................ July 1, 1942, to June 30, 1948.
6........................ July 1, 1948, to October 31, 1956.
6\1/2\................... November 1, 1956, to December 31, 1969.
7.5...................... January 1, 1970, to December 31, 1998.
7.75..................... January 1, 1999, to December 31, 1999.
7.9...................... January 1, 2000, to December 31, 2000.
7.5...................... After December 31, 2000.
Member for Member service.............. 2\1/2\................... August 1, 1920, to June 30, 1926.
3\1/2\................... July 1, 1926, to June 30, 1942.
5........................ July 1, 1942, to August 1, 1946.
6........................ August 2, 1946, to October 31, 1956.
7\1/2\................... November 1, 1956, to December 31, 1969.
8........................ January 1, 1970, to December 31, 1998.
8.25..................... January 1, 1999, to December 31, 1999.
8.4...................... January 1, 2000, to December 31, 2000.
8.5...................... January 1, 2001, to December 31, 2002.
8........................ After December 31, 2002.
Law enforcement officer for law 2\1/2\................... August 1, 1920, to June 30, 1926.
enforcement service, member of the 3\1/2\................... July 1, 1926, to June 30, 1942.
Supreme Court Police for Supreme Court
Police service, and firefighter for
firefighter service.
5........................ July 1, 1942, to June 30, 1948.
6........................ July 1, 1948, to October 31, 1956.
6\1/2\................... November 1, 1956, to December 31, 1969.
7........................ January 1, 1970, to December 31, 1974.
7.5...................... January 1, 1975, to December 31, 1998.
7.75..................... January 1, 1999, to December 31, 1999.
7.9...................... January 1, 2000, to December 31, 2000.
7.5...................... After December 31, 2000.
Bankruptcy judge....................... 2\1/2\................... August 1, 1920, to June 30, 1926.
3\1/2\................... July 3, 1926, to June 30, 1942.
5........................ July 1, 1942, to June 30, 1948.
6........................ July 1, 1948, to October 31, 1956.
6\1/2\................... November 1, 1956, to December 31, 1969.
7........................ January 1, 1970, to December 31, 1983.
8........................ January 1, 1984, to December 31, 1998.
8.25..................... January 1, 1999, to December 31, 1999.
8.4...................... January 1, 2000, to December 31, 2000.
8........................ After December 31, 2000.
Judge of the United States Court of 6........................ May 5, 1950, to October 31, 1956.
Appeals for the Armed Forces for 6\1/2\................... November 1, 1956, to December 31, 1969.
service as a judge of that court.
7........................ January 1, 1970, to (but not including) the
date of the enactment of the Department of
Defense Authorization Act, 1984.
8........................ The date of enactment of the Department of
Defense Authorization Act, 1984, to
December 31, 1998.
8.25..................... January 1, 1999, to December 31, 1999.
8.4...................... January 1, 2000, to December 31, 2000.
8........................ After December 31, 2000.
United States magistrate............... 2\1/2\................... August 1, 1920, to June 30, 1926.
3\1/2\................... July 1, 1926, to June 30, 1942.
5........................ July 1, 1942, to June 30, 1948.
6........................ July 1, 1948, to October 31, 1956.
6\1/2\................... November 1, 1956, to December 31, 1969.
7........................ January 1, 1970, to September 30, 1987.
8........................ October 1, 1987, to December 31, 1998.
8.25..................... January 1, 1999, to December 31, 1999.
8.4...................... January 1, 2000, to December 31, 2000.
8........................ After December 31, 2000.
Court of Federal Claims Judge.......... 2\1/2\................... August 1, 1920, to June 30, 1926.
3\1/2\................... July 1, 1926, to June 30, 1942.
5........................ July 1, 1942, to June 30, 1948.
6........................ July 1, 1948, to October 31, 1956.
6\1/2\................... November 1, 1956, to December 31, 1969.
7........................ January 1, 1970, to September 30, 1988.
8........................ October 1, 1988, to December 31, 1998.
8.25..................... January 1, 1999, to December 31, 1999.
8.4...................... January 1, 2000, to December 31, 2000.
8........................ After December 31, 2000.
Member of the Capitol Police........... 2.5...................... August 1, 1920, to June 30, 1926.
3.5...................... July 1, 1926, to June 30, 1942.
5........................ July 1, 1942, to June 30, 1948.
6........................ July 1, 1948, to October 31, 1956.
6.5...................... November 1, 1956, to December 31, 1969.
7.5...................... January 1, 1970, to December 31, 1998.
7.75..................... January 1, 1999, to December 31, 1999.
7.9...................... January 1, 2000, to December 31, 2000.
7.5...................... After December 31, 2000.
Nuclear materials courier.............. 7........................ October 1, 1977 to October 16, 1998.
7.5...................... October 17, 1998 to December 31, 1998.
7.75..................... January 1, 1999 to December 31, 1999.
7.9...................... January 1, 2000 to December 31, 2000.
7.5...................... After December 31, 2000.
Notwithstanding the preceding provisions of this subsection and
any provision of section 206(b)(3) of the Federal Employees'
Retirement Contribution Temporary Adjustment Act of 1983, the
percentage of basic pay required under this subsection in the
case of an individual described in section 8402(b)(2) shall,
with respect to any covered service (as defined by section
203(a)(3) of such Act) performed by such individual after
December 31, 1983, and before January 1, 1987, be equal to 1.3
percent, and, with respect to any such service performed after
December 31, 1986, be equal to the amount that would have been
deducted from the employee's basic pay under subsection (k) of
this section if the employee's pay had been subject to that
subsection during such period.
(d)(1) Each employee or Member who has received a refund of
retirement deductions under this or any other retirement system
established for employees of the Government covering service
for which he may be allowed credit under this subchapter may
deposit the amount received, with interest. Credit may not be
allowed for the service covered by the refund until the deposit
is made.
(2)(A) This paragraph applies with respect to any employee
or Member who--
(i) separates before October 1, 1990, and receives
(or elects, in accordance with applicable provisions of
this subchapter, to receive) a refund (described in
paragraph (1)) which relates to a period of service
ending before October 1, 1990;
(ii) is entitled to an annuity under this
subchapter (other than a disability annuity) which is
based on service of such employee or Member, and which
commences on or after December 2, 1990; and
(iii) does not make the deposit (described in
paragraph (1)) required in order to receive credit for
the period of service with respect to which the refund
relates.
(B) Notwithstanding the second sentence of paragraph (1),
the annuity to which an employee or Member under this paragraph
is entitled shall (subject to adjustment under section 8340) be
equal to an amount which, when taken together with the unpaid
amount referred to in subparagraph (A)(iii), would result in
the present value of the total being actuarially equivalent to
the present value of the annuity which would otherwise be
provided by the employee or Member under this subchapter, as
computed under subsections (a)-(i) and (n) of section 8339
(treating, for purposes of so computing the annuity which would
otherwise be provided under this subchapter, the deposit
referred to in subparagraph (A)(iii) as if it had been timely
made).
(C) The Office of Personnel Management shall prescribe such
regulations as may be necessary to carry out this paragraph.
(e)(1) Interest under subsection (c), (d)(1), (j), (k), or
(l) of this section is computed in accordance with paragraphs
(2) and (3) of this subsection and regulations prescribed by
the Office of Personnel Management.
(2) Interest accrues annually on the outstanding portion of
any amount that may be deposited under subsection (c), (d)(1),
(j), (k), or (l) of this section, and is compounded annually,
until the portion is deposited. Such interest is computed from
the mid-point of each service period included in the
computation, or from the date refund was paid. The deposit may
be made in one or more installments. Interest may not be
charged for a period of separation from the service which began
before October 1, 1956.
(3) The rate of interest is 4 percent a year through
December 31, 1947, and 3 percent a year beginning January 1,
1948, through December 31, 1984. Thereafter, the rate of
interest for any calendar year shall be equal to the overall
average yield to the Fund during the preceding fiscal year from
all obligations purchased by the Secretary of the Treasury
during such fiscal year under section 8348(c), (d), and (e) of
this title, as determined by the Secretary.
(f) Under such regulations as the Office of Personnel
Management may prescribe, amounts deducted under subsection (a)
or (k) of this section and deposited under subsections (c) and
(d)(1) of this section shall be entered on individual
retirement records.
(g) Deposit may not be required for--
(1) service before August 1, 1920;
(2) military service, except to the extent provided
under section 8332(c) or 8334(j) of this title;
(3) service for the Panama Railroad Company before
Janu-ary 1, 1924;
(4) service performed before October 29, 1983, by
natives of the Pribilof Islands in the taking and
curing of fur seal skins and other activities in
connection with the administration of the Pribilof
Islands except where deductions, contributions, and
deposits were made before October 29, 1983;
(5) days of unused sick leave credited under
section 8339(m) of this title; or
(6) any period for which credit is allowed under
section 8332(l) of this title.
(h) For the purpose of survivor annuities, deposits
authorized by subsections (c), (d)(1), (j), and (k) of this
section may also be made by a survivor of an employee or
Member.
(i)(1) The Director of the Administrative Office of the
United States Courts shall pay to the Fund the amount which an
employee may deposit under subsection (c) of this section for
service creditable under section 8332(b)(12) of this title if
such creditable service immediately precedes service as an
employee subject to this subchapter with a break in service of
no more than ninety working days. The Director shall pay such
amount from any appropriation available to him as a necessary
expense of the appropriation concerned.
(2) The amount the Director pays in accordance with
paragraph (1) of this subsection shall be reduced by the amount
of any refund to the employee under section 376 of title 28.
Except to the extent of such reduction, the amount the Director
pays to the Fund shall satisfy the deposit requirement of
subsection (c) of this section.
(3) Notwithstanding any other provision of law, the amount
the Director pays under this subsection shall constitute an
employer contribution to the Fund, excludable under section 402
of the Internal Revenue Code of 1954 from the employee's gross
income until such time as the contribution is distributed or
made available to the employee, and shall not be subject to
refund or to lump-sum payment to the employee.
(4) Notwithstanding any other provision of law, a
bankruptcy judge or magistrate who is covered by section 377 of
title 28 or section 2(c) of the Retirement and Survivors'
Annuities for Bankruptcy Judges and Magistrates Act of 1988
shall not be subject to deductions and contributions to the
Fund, if the judge or magistrate notifies the Director of the
Administrative Office of the United States Courts of an
election of a retirement annuity under those provisions. Upon
such an election, the judge or magistrate shall be entitled to
a lump-sum credit under section 8342(a) of this title.
(5) Notwithstanding any other provision of law, a judge who
is covered by section 4096 of title 38 shall not be subject to
deductions and contributions to the Fund, if the judge notifies
the Director of the Office of Personnel Management of an
election of a retirement annuity under that section. Upon such
an election, the judge shall be entitled to a lump-sum credit
under section 8342(a) of this title.
(6) Notwithstanding any other provision of law, a judge of
the United States Claims Court who is covered by section 178 of
title 28 shall not be subject to deductions and contributions
to the Fund if the judge notifies the Director of the
Administrative Office of the United States Courts of an
election of a retirement annuity under those provisions. Upon
such an election, the judge shall be entitled to a lump-sum
credit under section 8342(a) of this title.
(j)(1)(A) Except as provided in subparagraph (B), and
subject to paragraph (5), each employee or Member who has
performed military service before the date of the separation on
which the entitlement to any annuity under this subchapter is
based may pay, in accordance with such regulations as the
Office shall issue, to the agency by which the employee is
employed, or, in the case of a Member or a Congressional
employee, to the Secretary of the Senate or the Chief
Administrative Officer of the House of Representatives, as
appropriate, an amount equal to 7 percent of the amount of the
basic pay paid under section 204 of title 37 to the employee or
Member for each period of military service after December 1956.
The amount of such payments shall be based on such evidence of
basic pay for military service as the employee or Member may
provide, or if the Office determines sufficient evidence has
not been so provided to adequately determine basic pay for
military service, such payment shall be based upon estimates of
such basic pay provided to the Office under paragraph (4).
(B) \1\ In any case where military service
interrupts creditable civilian service under this
subchapter and reemployment pursuant to chapter 43 of
title 38 occurs on or after August 1, 1990, the deposit
payable under this paragraph may not exceed the amount
that would have been deducted and withheld under
subsection (a)(1) from basic pay during civilian
service if the employee had not performed the period of
military service.
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\1\ Margin so in law. Section 5(b)(1)(B) of P.L. 103-353 (108 Stat.
3173) added this subparagraph but it probably should have been indented
two ems to the left.
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(2) Any deposit made under paragraph (1) of this subsection
more than two years after the later of--
(A) October 1, 1983; or
(B) the date on which the employee or Member making
the deposit first becomes an employee or Member
following the period of military service for which such
deposit is due,
shall include interest on such amount computed and compounded
annually beginning on the date of the expiration of the two-
year period. The interest rate that is applicable in computing
interest in any year under this paragraph shall be equal to the
interest rate that is applicable for such year under subsection
(e) of this section.
(3) Any payment received by an agency, the Secretary of the
Senate, or the Chief Administrative Officer of the House of
Representatives under this subsection shall be immediately
remitted to the Office for deposit in the Treasury of the
United States to the credit of the Fund.
(4) The Secretary of Defense, the Secretary of
Transportation, the Secretary of Commerce, or the Secretary of
Health and Human Services, as appropriate, shall furnish such
information to the Office as the Office may determine to be
necessary for the administration of this subsection.
(5) Effective with respect to any period of military
service after December 31, 1998, the percentage of basic pay
under section 204 of title 37 payable under paragraph (1) shall
be equal to the same percentage as would be applicable under
subsection (c) of this section for that same period for service
as an employee, subject to paragraph (1)(B).
(k)(1) Effective with respect to pay periods beginning
after December 31, 1986, in administering this section in the
case of an individual described in section 8402(b)(2) of this
title--
(A) the amount to be deducted and withheld by the
employing agency shall be determined in accordance with
paragraph (2) of this subsection instead of the first
sentence of subsection (a)(1) of this section; and
(B) the amount of the contribution under the second
sentence of subsection (a)(1) of this section shall be
the amount which would have been contributed under such
sentence if this subsection had not been enacted.
(2)(A) With respect to Federal wages of an employee or
Member (or that portion thereof) not exceeding the contribution
and benefit base during the calendar year involved, the
appropriate amount to be deducted and withheld under this
subsection is the amount by which--
(i) the total deduction for those wages (or for
that portion) exceeds;
(ii) the OASDI contribution with respect to those
wages (or that portion).
(B) With respect to any portion of Federal wages of an
employee or Member which exceed the contribution and benefit
base during the calendar year involved, the appropriate amount
to be deducted and withheld under this subsection is an amount
equal to the total deduction for that portion.
(C) For purposes of this paragraph--
(i) the term ``Federal wages'' means basic pay for
service as an employee or Member, as the case may be;
(ii) the term ``contribution and benefit base''
means the contribution and benefit base in effect with
respect to the period involved, as determined under
section 230 of the Social Security Act;
(iii) the term ``total deduction'', as used with
respect to any Federal wages (or portion thereof),
means an amount equal to the amount of those wages (or
of that portion), multiplied by the percentage which
(but for this subsection) would apply under the first
sentence of subsection (a)(1) with respect to the
individual involved; and
(iv) the term ``OASDI contribution'', with respect
to any income, means the amount of tax which may be
imposed under section 3101(a) of the Internal Revenue
Code of 1954 with respect to such income (determined
without regard to any income which is not a part of
Federal wages).
(3) The amount of a deposit under subsection (c) of this
section for any service with respect to which paragraph (1) of
this subsection applies shall be equal to an amount determined
based on the preceding provisions of this subsection, and shall
include interest.
(4) In administering paragraphs (1) through (3)--
(A) the term ``an individual described in section
8402(b)(2) of this title'' shall be considered to
include any individual--
(i) who is subject to this subchapter as a
result of a provision of law described in
section 8347(o), and
(ii) whose employment (as described in
section 8347(o)) is also employment for
purposes of title II of the Social Security Act
and chapter 21 of the Internal Revenue Code of
1986; and
(B) the term ``Federal wages'', as applied with
respect to any individual to whom this subsection
applies as a result of subparagraph (A), means basic
pay for any employment referred to in subparagraph
(A)(ii).
(l)(1) Each employee or Member who has performed service as
a volunteer or volunteer leader under part A of title VIII of
the Economic Opportunity Act of 1964, as a full-time volunteer
enrolled in a program of at least 1 year's duration under part
A, B, or C of title I of the Domestic Volunteer Service Act of
1973, or as a volunteer or volunteer leader under the Peace
Corps Act before the date of the separation on which the
entitlement to any annuity under this subchapter is based may
pay, in accordance with such regulations as the Office of
Personnel Management shall issue, an amount equal to 7 percent
of the readjustment allowance paid to the employee or Member
under title VIII of the Economic Opportunity Act of 1964 or
section 5(c) or 6(1) of the Peace Corps Act or the stipend paid
to the employee or Member under part A, B, or C of title I of
the Domestic Volunteer Service Act of 1973, for each period of
service as such a volunteer or volunteer leader. This paragraph
shall be subject to paragraph (4).
(2) Any deposit made under paragraph (1) more than 2 years
after the later of--
(A) October 1, 1993; or
(B) the date on which the employee or Member making
the deposit first becomes an employee or Member,
shall include interest on such amount computed and compounded
annually beginning on the date of the expiration of the 2-year
period. The interest rate that is applicable in computing
interest in any year under this paragraph shall be equal to the
interest rate that is applicable for such year under subsection
(e).
(3) The Director of the Peace Corps and the Chief Executive
Officer of the Corporation for National and Community Service
shall furnish such information to the Office of Personnel
Management as the Office may determine to be necessary for the
administration of this subsection.
(4) Effective with respect to any period of service after
December 31, 1998, the percentage of the readjustment allowance
or stipend (as the case may be) payable under paragraph (1)
shall be equal to the same percentage as would be applicable
under subsection (c) of this section for the same period for
service as an employee.
(m) A Member who has served in a position in the executive
branch for which the rate of basic pay was reduced for the
duration of the service of the Member to remove the impediment
to the appointment of the Member imposed by article I, section
6, clause 2 of the Constitution, or the survivor of such a
Member, may deposit to the credit of the Fund an amount equal
to the difference between the amount deducted from the basic
pay of the Member during that period of service and the amount
that would have been deducted if the rate of basic pay which
would otherwise have been in effect during that period had been
in effect, plus interest computed under subsection (e).
Sec. 8335. Mandatory separation
(a) An air traffic controller shall be separated from the
service on the last day of the month in which he becomes 56
years of age. The Secretary, under such regulations as he may
prescribe, may exempt a controller having exceptional skills
and experience as a controller from the automatic separation
provisions of this subsection until that controller becomes 61
years of age. The Secretary shall notify the controller in
writing of the date of separation at least 60 days before that
date. Action to separate the controller is not effective,
without the consent of the controller, until the last day of
the month in which the 60-day notice expires.
(b) A firefighter who is otherwise eligible for immediate
retirement under section 8336(c) shall be separated from the
service on the last day of the month in which such firefighter
becomes 55 years of age or completes 20 years of service if
then over that age. A law enforcement officer or nuclear
materials courier who is otherwise eligible for immediate
retirement under section 8336(c) shall be separated from the
service on the last day of the month in which that officer or
courier, as the case may be, becomes 57 years of age or
complete 20 years of service if then over that age. The head of
the agency, when in his judgment the public interest so
requires, may exempt such an employee from automatic separation
under this subsection until that employee becomes 60 years of
age. The employing office shall notify the employee in writing
of the date of separation at least 60 days in advance thereof.
Action to separate the employee is not effective, without the
consent of the employee, until the last day of the month in
which the 60-day notice expires.
(c) A member of the Capitol Police who is otherwise
eligible for immediate retirement under section 8336(m) shall
be separated from the service on the last day of the month in
which such member becomes 57 years of age or completes 20 years
of service if then over that age. The Capitol Police Board,
when in its judgment the public interest so requires, may
exempt such a member from automatic separation under this
subsection until that member becomes 60 years of age. The Board
shall notify the member in writing of the date of separation at
least 60 days in advance thereof. Action to separate the member
is not effective, without the consent of the member, until the
last day of the month in which the 60-day notice expires.
(d) A member of the Supreme Court Police who is otherwise
eligible for immediate retirement under section 8336(n) shall
be separated from the service on the last day of the month in
which such member becomes 57 years of age or completes 20 years
of service if then over that age. The Marshal of the Supreme
Court of the United States, when in his judgment the public
interest so requires, may exempt such a member from automatic
separation under this subsection until that member becomes 60
years of age. The Marshal shall notify the member in writing of
the date of separation at least 60 days in advance thereof.
Action to separate the member is not effective, without the
consent of the member, until the last day of the month in which
the 60-day notice expires.
(f) \1\ The President, by Executive order, may exempt an
employee (other than a member of the Capitol Police or the
Supreme Court Police) from automatic separation under this
section when he determines the public interest so requires.
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\1\ So in law. See section 308(b)(2)(A) of the Departments of
Commerce, Justice, and State, the Judiciary, and Related Agencies
Appropriations Act, 2001 (as enacted into law by section 1(a)(2) of
Public Law 106-553; 114 Stat. 2762A-87) and section 141(a) of
Miscellaneous Appropriations Act, 2001 (as enacted into law by section
1(a)(4) of Public Law 106-554; 114 Stat. 2763A-235).
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Sec. 8336. Immediate retirement
(a) An employee who is separated from the service after
becoming 55 years of age and completing 30 years of service is
entitled to an annuity.
(b) An employee who is separated from the service after
becoming 60 years of age and completing 20 years of service is
entitled to an annuity.
(c)(1) An employee who is separated from the service after
becoming 50 years of age and completing 20 years of service as
a law enforcement officer, firefighter, or nuclear materials
courier, or any combination of such service totaling at least
20 years, is entitled to an annuity.
(2) An employee is entitled to an annuity if the employee--
(A) was a law enforcement officer or firefighter
employed by the Panama Canal Company or the Canal Zone
Government at any time during the period beginning
March 31, 1979, and ending September 30, 1979; and
(B) is separated from the service before January 1,
2000, after becoming 48 years of age and completing 18
years of service as a law enforcement officer or
firefighter, or any combination of such service
totaling at least 18 years.
(d) An employee who--
(1) is separated from the service involuntarily,
except by removal for cause on charges of misconduct or
delinquency; or
(2) <SUP>1,2</SUP> except in the case of an
employee who is separated from the service under a
program carried out under subsection (o), while serving
in a geographic area designated by the Office of
Personnel Management, is separated from the service
voluntarily during a period in which the Office
determines that--
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\1\ Section 7001(a) of the 1998 Supplemental Appropriations and
Rescissions Act (Public Law 105-174; 112 Stat. 91), as amended by
Public Law 106-58, title VI, Sec. 651(a), September 29, 1999, 113 Stat.
480, provides as follows:
Sec. 7001. Federal Employee Voluntary Early Retirement. (a) Civil
Service Retirement System.--Effective May 1, 1998, paragraph (2) of
section 8336(d) of title 5, United States Code, shall be applied as if
it had been amended to read as follows:
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``(2)(A) has been employed continuously, by the agency in
which the employee is serving, for at least the 31-day period
ending on the date on which such agency requests the
determination referred to in subparagraph (D);
``(B) is serving under an appointment that is not time
limited;
``(C) has not been duly notified that such employee is to be
involuntarily separated for misconduct or unacceptable
performance;
``(D) is separated from the service voluntarily during a
period in which, as determined by the Office of Personnel
Management (upon request of the agency) under regulations
prescribed by the Office--
``(i) such agency (or, if applicable, the component
in which the employee is serving) is undergoing a major
reorganization, a major reduction in force, or a major
transfer of function; and
``(ii) a significant percentage of the employees
serving in such agency (or component) will be separated
or subject to an immediate reduction in the rate of
basic pay (without regard to subchapter VI of chapter
53, or comparable provisions); and
``(E) as determined by the agency under regulations
prescribed by the Office, is within the scope of the offer of
voluntary early retirement, which may be made on the basis of--
``(i) one or more organizational units;
``(ii) one or more occupational series or levels;
``(iii) one or more geographical locations;
``(iv) other similar nonpersonal factors the Office
determines appropriate; or
``(v) any appropriate combination of such factors;''.
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\2\ Section 1(a) of the Act entitled ``To make certain personnel
flexibilities available with respect to the General Accounting Office,
and for other purposes'' (Public Law 106-303; 114 Stat. 1063), enacted
October 13, 2000, provides as follows:
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SECTION 1. VOLUNTARY EARLY RETIREMENT AUTHORITY.
---------------------------------------------------------------------------
(a) Civil Service Retirement System.--Effective for purposes of the
period beginning on the date of the enactment of this Act and ending on
December 31, 2003, paragraph (2) of section 8336(d) of title 5, United
States Code, shall, with respect to officers and employees of the
General Accounting Office, be applied as if it had been amended to read
as follows:
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``(2)(A) has been employed continuously by the General
Accounting Office for at least the 31-day period immediately
preceding the start of the period referred to in subparagraph
(D);
``(B) is serving under an appointment that is not time
limited;
``(C) has not received a notice of involuntary separation,
for misconduct or unacceptable performance, with respect to
which final action remains pending; and
``(D) is separated from the service voluntarily during a
period with respect to which the Comptroller General determines
that the application of this subsection is necessary and
appropriate for the purpose of--
``(i) realigning the General Accounting Office's
workforce in order to meet budgetary constraints or
mission needs;
``(ii) correcting skill imbalances; or
``(iii) reducing high-grade, managerial, or
supervisory positions;''.
(A) the agency in which the employee is
serving is undergoing a major reorganization, a
major reduction in force, or a major transfer
of function; and
(B) a significant percent of the employees
serving in such agency will be separated or
subject to an immediate reduction in the rate
of basic pay (without regard to subchapter VI
of chapter 53 of this title or comparable
provisions);
after completing 25 years of service or after becoming 50 years
of age and completing 20 years of service is entitled to an
annuity. For purposes of paragraph (1) of this subsection,
separation for failure to accept a directed reassignment to a
position outside the commuting area of the employee concerned
or to accompany a position outside of such area pursuant to a
transfer of function shall not be considered to be a removal
for cause on charges of misconduct or delinquency.
Notwithstanding the first sentence of this subsection, an
employee described in paragraph (1) of this subsection is not
entitled to an annuity under this subsection if the employee
has declined a reasonable offer of another position in the
employee's agency for which the employee is qualified, which is
not lower than 2 grades (or pay levels) below the employee's
grade (or pay level), and which is within the employee's
commuting area.
(e) An employee who is voluntarily or involuntarily
separated from the service, except by removal for cause on
charges of misconduct or delinquency, after completing 25 years
of service as an air traffic controller or after becoming 50
years of age and completing 20 years of service as an air
traffic controller, is entitled to an annuity.
(f) An employee who is separated from the service after
becoming 62 years of age and completing 5 years of service is
entitled to an annuity.
(g) A Member who is separated from the service after
becoming 62 years of age and completing 5 years of civilian
service, or after becoming 60 years of age and completing 10
years of Member service is entitled to an annuity. A Member who
is separated from the service after becoming 55 years of age
(but before becoming 60 years of age) and completing 30 years
of service is entitled to a reduced annuity. A Member who is
separated from the service, except by resignation or expulsion,
after completing 25 years of service or after becoming 50 years
of age and (1) completing 20 years of service or (2) serving in
9 Congresses is entitled to an annuity.
(h)(1) A member of the Senior Executive Service who is
removed from the Senior Executive Service for failure to be
recertified as a senior executive under section 3393a or for
less than fully successful executive performance (as determined
under subchapter II of chapter 43 of this title) after
completing 25 years of service or after becoming 50 years of
age and completing 20 years of service is entitled to an
annuity.
(2) A member of the Defense Intelligence Senior Executive
Service or the Senior Cryptologic Executive Service who is
removed from such service for failure to be recertified as a
senior executive or for less than fully successful executive
performance after completing 25 years of service or after
becoming 50 years of age and completing 20 years of service is
entitled to an annuity.
(3) A member of the Federal Bureau of Investigation and
Drug Enforcement Administration Senior Executive Service who is
removed from such service for failure to be recertified as a
senior executive or for less than fully successful executive
performance after completing 25 years of service or after
becoming 50 years of age and completing 20 years of service is
entitled to an annuity.
(i)(1) An employee of the Panama Canal Commission or of an
Executive agency conducting operations in the Canal Zone or
Republic of Panama who is separated from the service before
January 1, 2000, who was employed by the Canal Zone Government
or the Panama Canal Company at any time during the period
beginning March 31, 1979, and ending September 30, 1979, and
who has had continuous Panama Canal service, without a break in
service of more than 3 days, from that time until separation,
is entitled to an annuity if the employee is separated--
(A) involuntarily, after completing 20 years of
service or after becoming 48 years of age and
completing 18 years of service, if the separation is a
result of the implementation of any provision of the
Panama Canal Treaty of 1977 and related agreements; or
(B) voluntarily, after completing 23 years of
service or after becoming 48 years of age and
completing 18 years of service.
(2) An employee of the Panama Canal Commission or of an
Executive agency conducting operations in the Canal Zone or
Republic of Panama who is separated from the service before
January 1, 2000, who was employed, at a permanent duty station
in the Canal Zone, by any Executive agency other than the Canal
Zone Government or the Panama Canal Company at any time during
the period beginning March 31, 1979, and ending September 30,
1979, and who has had continuous Panama Canal service, without
a break in service of more than 3 days, from that time until
separation, is entitled to an annuity if--
(A) the employee is separated involuntarily, after
completing 20 years of service or after becoming 48
years of age and completing 18 years of service; and
(B) the separation is the result of the
implementation of any provision of the Panama Canal
Treaty of 1977 and related agreements.
(3) An employee of the Panama Canal Commission employed by
that body after September 30, 1979, who is separated from the
Panama Canal Commission before January 1, 2000, and who at the
time of separation has a minimum of 11 years of continuous
employment with the Commission (disregarding any break in
service of 3 days or less) is entitled to an annuity if the
employee is separated--
(A) involuntarily, after completing 20 years of
service or after becoming 48 years of age and
completing 18 years of service, if the separation is a
result of the implementation of any provision of the
Panama Canal Treaty of 1977 and related agreements; or
(B) voluntarily, after completing 23 years of
service or after becoming 48 years of age and
completing 18 years of service.
(4) For the purpose of this subsection--
(A) ``Panama Canal service'' means--
(i) service as an employee of the Canal
Zone Government, the Panama Canal Company, or
the Panama Canal Commission; or
(ii) service at a permanent duty station in
the Canal Zone or Republic of Panama as an
employee of an Executive agency conducting
operations in the Canal Zone or the Republic of
Panama; and
(B) ``Executive agency'' includes the United States
District Court for the District of the Canal Zone and
the Smithsonian Institution.
(j)(1) Except as provided in paragraph (3), an employee is
entitled to an annuity if he--
(A)(i) is separated from the service after
completing 25 years of service or after becoming 50
years of age and completing 20 years of service, or
(ii) is involuntarily separated, except by removal
for cause on charges of misconduct or delinquency,
during the 2-year period before the date on which he
would meet the years of service and age requirements
under clause (i),
(B) was employed in the Bureau of Indian Affairs,
the Indian Health Service, a tribal organization (to
the extent provided in paragraph (2)), or any
combination thereof, continuously from December 21,
1972, to the date of his separation, and
(C) is not entitled to preference under the Indian
preference laws.
(2) Employment in a tribal organization may be considered
for purposes of paragraph (1)(B) of this subsection only if--
(A) the employee was employed by the tribal
organization after January 4, 1975, and immediately
before such employment he was an employee of the Bureau
of Indian Affairs or the Indian Health Service, and
(B) at the time of such employment such employee
and the tribal organization were eligible to elect, and
elected, to have the employee retain the coverage,
rights, and benefits of this chapter under section
105(e)(2) of the Indian Self-Determination Act (25
U.S.C. 450i(a)(2); 88 Stat. 2209).
(3)(A) The provisions of paragraph (1) of this subsection
shall not apply with respect to any separation of any employee
which occurs after the date 10 years after--
(i) the date the employee first meets the years of
service and age requirements of paragraph (1)(A)(i), or
(ii) the date of the enactment of this paragraph,
if the employee met those requirements before that
date.
(B) For purposes of applying this paragraph with respect to
any employee of the Bureau of Indian Affairs in the Department
of the Interior or of the Indian Health Service in the
Department of Health, Education, and Welfare, the Secretary of
the department involved may postpone the date otherwise
applicable under subparagraph (A) if--
(i) such employee consents to such postponement,
and
(ii) the Secretary finds that such postponement is
necessary for the continued effective operation of the
agency.
The period of any postponement under this subparagraph shall
not exceed 12 months and the total period of all postponements
with respect to any employee shall not exceed 5 years.
(4) For the purpose of this subsection--
(A) ``Bureau of Indian Affairs'' means (i) the
Bureau of Indian Affairs and (ii) all other
organizational units in the Department of the Interior
directly and primarily related to providing services to
Indians and in which positions are filled in accordance
with the Indian preference laws.
(B) ``Indian preference laws'' means section 12 of
the Act of June 18, 1934 (25 U.S.C. 472; 48 Stat. 986),
or any other provision of law granting a preference to
Indians in promotions or other Federal personnel
actions.
(k) A bankruptcy judge United States magistrate, or Claims
Court judge who is separated from service, except by removal,
after becoming 62 years of age and completing 5 years of
civilian service, or after becoming 60 years of age and
completing 10 years of service as a bankruptcy judge, United
States magistrate, or Claims Court judge, is entitled to an
annuity.
(l) A judge of the United States Court of Appeals for the
Armed Forces who is separated from the service after becoming
62 years of age and completing 5 years of civilian service or
after completing the term of service for which he was appointed
as a judge of such court is entitled to an annuity. A judge who
is separated from the service before becoming 60 years of age
is entitled to a reduced annuity.
(m) A member of the Capitol Police who is separated from
the service after becoming 50 years of age and completing 20
years of service as a member of the Capitol Police or as a law
enforcement officer, or any combination of such service
totaling at least 20 years, is entitled to an annuity.
(n) A member of the Supreme Court Police who is separated
from the service after becoming 50 years of age and completing
20 years of service as a member of the Supreme Court Police or
as a law enforcement officer, or any combination of such
service totaling at least 20 years, is entitled to an annuity.
(o) \1\ An annuity or reduced annuity authorized by this
section is computed under section 8339 of this title.
---------------------------------------------------------------------------
\1\ So in law. See section 1152(a)(2) of the Floyd D. Spence
National Defense Authorization Act for Fiscal Year 2001 (as enacted
into law by section 1 of Public Law 106-398; 114 Stat. 1654A-320) and
section 308(b)(3) of the Departments of Commerce, Justice, and State,
the Judiciary, and Related Agencies Appropriations Act, 2001 (as
enacted into law by section 1(a)(2) of Public Law 106-553; 114 Stat.
2762A-87, Appendix B).
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(o)(1) \1\ The Secretary of Defense may, during fiscal
years 2002 and 2003, carry out a program under which an
employee of the Department of Defense may be separated from the
service entitled to an immediate annuity under this subchapter
if the employee--
(A) has--
(i) completed 25 years of service; or
(ii) become 50 years of age and completed
20 years of service; and
(B) is eligible for the annuity under paragraph (2)
or (3).
(2)(A) For the purposes of paragraph (1), an employee
referred to in that paragraph is eligible for an immediate
annuity under this paragraph if the employee--
(i) is separated from the service involuntarily
other than for cause; and
(ii) has not declined a reasonable offer of another
position in the Department of Defense for which the
employee is qualified, which is not lower than 2 grades
(or pay levels) below the employee's grade (or pay
level), and which is within the employee's commuting
area.
(B) For the purposes of paragraph (2)(A)(i), a separation
for failure to accept a directed reassignment to a position
outside the commuting area of the employee concerned or to
accompany a position outside of such area pursuant to a
transfer of function may not be considered to be a removal for
cause.
(3) For the purposes of paragraph (1), an employee referred
to in that paragraph is eligible for an immediate annuity under
this paragraph if the employee satisfies all of the following
conditions:
(A) The employee is separated from the service
voluntarily during a period in which the organization
within the Department of Defense in which the employee
is serving is undergoing a major organizational
adjustment.
(B) The employee has been employed continuously by
the Department of Defense for more than 30 days before
the date on which the head of the employee's
organization requests the determinations required under
subparagraph (A).
(C) The employee is serving under an appointment
that is not limited by time.
(D) The employee is not in receipt of a decision
notice of involuntary separation for misconduct or
unacceptable performance.
(E) The employee is within the scope of an offer of
voluntary early retirement, as defined on the basis of
one or more of the following objective criteria:
(i) One or more organizational units.
(ii) One or more occupational groups,
series, or levels.
(iii) One or more geographical locations.
(iv) Any other similar objective and
nonpersonal criteria that the Office of
Personnel Management determines appropriate.
(4) Under regulations prescribed by the Office of Personnel
Management, the determinations of whether an employee meets--
(A) the requirements of subparagraph (A) of
paragraph (3) shall be made by the Office, upon the
request of the Secretary of Defense; and
(B) the requirements of subparagraph (E) of such
paragraph shall be made by the Secretary of Defense.
(5) A determination of which employees are within the scope
of an offer of early retirement shall be made only on the basis
of consistent and well-documented application of the relevant
criteria.
(6) In this subsection, the term ``major organizational
adjustment'' means any of the following:
(A) A major reorganization.
(B) A major reduction in force.
(C) A major transfer of function.
(D) A workforce restructuring--
(i) to meet mission needs;
(ii) to achieve one or more reductions in
strength;
(iii) to correct skill imbalances; or
(iv) to reduce the number of high-grade,
managerial, supervisory, or similar positions.
Sec. 8337. Disability retirement
(a) An employee who completes 5 years of civilian service
and has become disabled shall be retired on the employee's own
application or on application by the employee's agency. Any
employee shall be considered to be disabled only if the
employee is found by the Office of Personnel Management to be
unable, because of disease or injury, to render useful and
efficient service in the employee's position and is not
qualified for reassignment, under procedures prescribed by the
Office, to a vacant position which is in the agency at the same
grade or level and in which the employee would be able to
render useful and efficient service. For the purpose of the
preceding sentence, an employee of the United States Postal
Service shall be considered not qualified for a reassignment
described in that sentence if the reassignment is to a position
in a different craft or is inconsistent with the terms of a
collective bargaining agreement covering the employee. A judge
of the United States Court of Appeals for the Armed Forces who
completes 5 years of civilian service and who is found by the
Office to be disabled for useful and efficient service as a
judge of such court or who is removed for mental or physical
disability under section 942(c) of title 10 shall be retired on
the judge's own application or upon such removal. A Member who
completes 5 years of Member service and is found by the Office
to be disabled for useful and efficient service as a Member
because of disease or injury shall be retired on the Member's
own application. An annuity authorized by this section is
computed under section 8339(g) of this title, unless the
employee or Member is eligible for a higher annuity computed
under section 8339(a) through (e), (n), (q), (r), or (s).
(b) A claim may be allowed under this section only if the
application is filed with the Office before the employee or
Member is separated from the service or within 1 year
thereafter. This time limitation may be waived by the Office
for an employee or Member who at the date of separation from
service or within 1 year thereafter is mentally incompetent, if
the application is filed with the Office within 1 year from the
date of restoration of the employee or Member to competency or
the appointment of a fiduciary, whichever is earlier.
(c) An annuitant receiving disability retirement annuity
from the Fund shall be examined under the direction of the
Office--
(1) at the end of 1 year from the date of the
disability retirement; and
(2) annually thereafter until he becomes 60 years
of age;
unless his disability is permanent in character. If the
annuitant fails to submit to examination as required by this
section, payment of the annuity shall be suspended until
continuance of the disability is satisfactorily established.
(d) If an annuitant receiving disability retirement annuity
from the Fund, before becoming 60 years of age, recovers from
his disability, payment of the annuity terminates on
reemployment by the Government or 1 year after the date of the
medical examination showing the recovery, whichever is earlier.
If an annuitant receiving disability retirement annuity from
the Fund, before becoming 60 years of age, is restored to an
earning capacity fairly comparable to the current rate of pay
of the position occupied at the time of retirement, payment of
the annuity terminates on reemployment by the Government or 180
days after the end of the calendar year in which earning
capacity is so restored, whichever is earlier. Earning capacity
is deemed restored if in any calendar year the income of the
annuitant from wages or self-employment or both equals at least
80 percent of the current rate of pay of the position occupied
immediately before retirement.
(e) If an annuitant whose annuity is terminated under
subsection (d) of this section is not reemployed in a position
in which he is subject to this subchapter, he is deemed, except
for service credit, to have been involuntarily separated from
the service for the purpose of this subchapter as of the date
of termination of the disability annuity, and after that
termination is entitled to annuity under the applicable
provisions of this subchapter. If an annuitant whose annuity is
heretofore or hereafter terminated because of an earning
capacity provision of this subchapter or an earlier statute--
(1) is not reemployed in a position within the
purview of this subchapter; and
(2) has not recovered from the disability for which
he was retired;
his annuity shall be restored at the same rate effective the
first of the year following any calendar year in which his
income from wages or self-employment or both is less than 80
percent of the current rate of pay of the position occupied
immediately before retirement. If an annuitant whose annuity is
heretofore or hereafter terminated because of a medical finding
that he has recovered from disability is not reemployed in a
position in which he is subject to this subchapter, his annuity
shall be restored at the same rate effective from the date of
medical examination showing a recurrence of the disability. The
second and third sentences of this subsection do not apply to
an individual who has become 62 years of age and is receiving
or is eligible to receive annuity under the first sentence of
this subsection.
(f)(1) An individual is not entitled to receive--
(A) an annuity under this subchapter, and
(B) compensation for injury to, or disability of,
such individual under subchapter I of chapter 81, other
than compensation payable under section 8107,
covering the same period of time.
(2) An individual is not entitled to receive an annuity
under this subchapter and a concurrent benefit under subchapter
I of chapter 81 on account of the death of the same person.
(3) Paragraphs (1) and (2) do not bar the right of a
claimant to the greater benefit conferred by either this
subchapter or subchapter I of chapter 81.
(g) If an individual is entitled to an annuity under this
subchapter, and the individual receives a lump-sum payment for
compensation under section 8135 based on the disability or
death of the same person, so much of the compensation as has
been paid for a period extended beyond the date payment of the
annuity commences, as determined by the Department of Labor,
shall be refunded to that Department for credit to the
Employees' Compensation Fund. Before the individual may receive
the annuity, the individual shall--
(1) refund to the Department of Labor the amount
representing the commuted compensation payments for the
extended period; or
(2) authorize the deduction of the amount from the
annuity.
Deductions from the annuity may be made from accrued or
accruing payments. The amounts deducted and withheld from the
annuity shall be transmitted to the Department of Labor for
reimbursement to the Employees' Compensation Fund. When the
Department of Labor finds that the financial circumstances of
an individual entitled to an annuity under this subchapter
warrant deferred refunding, deductions from the annuity may be
prorated against and paid from accruing payments in such manner
as the Department determines appropriate.
(h)(1) As used in this subsection, the term ``technician''
means an individual employed under section 709(a) of title 32
or section 10216 of title 10 who, as a condition of the
employment, is required under section 709(b) of title 32 or
section 10216 of title 10, respectively, to be a member of the
Selected Reserve.
(2)(A) Except as provided in subparagraph (B) of this
paragraph, an individual shall be retired under this section if
the individual--
(i) is separated from employment as a technician
under section 709(e)(1) of title 32 or section 10216 of
title 10 by reason of a disability that disqualifies
the individual from membership in the Selected Reserve;
(ii) is not considered to be disabled under the
second sentence of subsection (a) of this section;
(iii) is not appointed to a position in the
Government (whether under paragraph (3) of this
subsection or otherwise); and
(iv) has not declined an offer of an appointment to
a position in the Government under paragraph (3) of
this subsection.
(B) Payment of any annuity for an individual pursuant to
this subsection terminates--
(i) on the date the individual is appointed to a
position in the Government (whether pursuant to
paragraph (3) of this subsection or otherwise);
(ii) on the date the individual declines an offer
of appointment to a position in the Government under
paragraph (3); or
(iii) as provided under subsection (d).
(3) Any individual applying for or receiving any annuity
pursuant to this subsection shall, in accordance with
regulations prescribed by the Office, be considered by any
agency of the Government before any vacant position in the
agency is filled if--
(A) the position is located within the commuting
area of the individual's former position;
(B) the individual is qualified to serve in such
position, as determined by the head of the agency; and
(C) the position is at the same grade or equivalent
level as the position from which the individual was
separated under section 709(e)(1) of title 32 or
section 10216 of title 10.
Sec. 8338. Deferred retirement
(a) An employee who is separated from the service or
transferred to a position in which he does not continue subject
to this subchapter after completing 5 years of civilian service
is entitled to an annuity beginning at the age of 62 years.
(b) A Member who, after December 31, 1955, is separated
from the service as a Member after completing 5 years of
civilian service is entitled to an annuity beginning at the age
of 62 years. A Member who is separated from the service after
completing 10 or more years of Member service is entitled to an
annuity beginning at the age of 60 years. A Member who is
separated from the service after completing 20 or more years of
service, including 10 or more years of Member service, is
entitled to a reduced annuity beginning at the age of 50 years.
(c) A judge of the United States Court of Appeals for the
Armed Forces who is separated from the service after completing
5 years of civilian service is entitled to an annuity beginning
at the age of 62 years. A judge of such court who is separated
from the service after completing the term of service for which
he was appointed is entitled to an annuity. If an annuity is
elected before the judge becomes 60 years of age, it shall be a
reduced annuity.
(d) An annuity or reduced annuity authorized by this
section is computed under section 8339 of this title.
Sec. 8339. Computation of annuity
(a) Except as otherwise provided by this section, the
annuity of an employee retiring under this subchapter is--
(1) 1\1/2\ percent of his average pay multiplied by
so much of his total service as does not exceed 5
years; plus
(2) 1\3/4\ percent of his average pay multiplied by
so much of his total service as exceeds 5 years but
does not exceed 10 years; plus
(3) 2 percent of his average pay multiplied by so
much of his total service as exceeds 10 years.
However, when it results in a larger annuity, 1 percent of his
average pay plus $25 is substituted for the percentage
specified by paragraph (1), (2), or (3) of this subsection, or
any combination thereof.
(b) The annuity of a Congressional employee, or former
Congressional employee, retiring under this subchapter is
computed under subsection (a) of this section, except, if he
has had--
(1) at least 5 years' service as a Congressional
employee or Member or any combination thereof; and
(2) deductions withheld from his pay or has made
deposit covering his last 5 years of civilian service;
his annuity is computed with respect to his service as a
Congressional employee, his military service not exceeding 5
years, and any Member service, by multiplying 2\1/2\ percent of
his average pay by the years of that service.
(c) The annuity of a Member, or former Member with title to
Member annuity, retiring under this subchapter is computed
under subsection (a) of this section, except, if he has had at
least 5 years' service as a Member or Congressional employee or
any combination thereof, his annuity is computed with respect
to--
(1) his service as a Member and so much of his
military service as is creditable for the purpose of
this paragraph; and
(2) his Congressional employee service;
by multiplying 2\1/2\ percent of his average pay by the years
of that service.
(d)(1) The annuity of an employee retiring under section
8335(b) or 8336(c) of this title is--
(A) 2\1/2\ percent of his average pay multiplied by
so much of his total service as does not exceed 20
years; plus
(B) 2 percent of his average pay multiplied by so
much of his total service as exceeds 20 years.
(2) The annuity of an employee retiring under this
subchapter who was employed by the Panama Canal Company or
Canal Zone Government on September 30, 1979, is computed with
respect to the period of continuous Panama Canal service from
that date, disregarding any break in service of not more than 3
days, by adding--
(A) 2\1/2\ percent of the employee's average pay
multiplied by so much of that service as does not
exceed 20 years; plus
(B) 2 percent of the employee's average pay
multiplied by so much of that service as exceeds 20
years.
(3) The annuity of an employee retiring under this
subchapter who is employed by the Panama Canal Commission at
any time during the period beginning October 1, 1990, and
ending December 31, 1999, is computed, with respect to any
period of service with the Panama Canal Commission, by adding--
(A) 2\1/2\ percent of the employee's average pay
multiplied by so much of that service as does not
exceed 20 years; plus
(B) 2 percent of the employee's average pay
multiplied by so much of that service as exceeds 20
years.
(4)(A) In the case of an employee who has service as a law
enforcement officer or firefighter to which paragraph (2) of
this subsection applies, the annuity of that employee is
increased by $8 for each full month of that service which is
performed in the Republic of Panama.
(B) In the case of an employee retiring under this
subchapter who--
(i) was employed as a law enforcement officer or
firefighter by the Panama Canal Company or Canal Zone
Government at any time during the period beginning
March 31, 1979, and ending September 30, 1979; and
(ii) does not meet the age and service requirements
of section 8336(c) of this title;
the annuity of that employee is increased by $12 for each full
month of that service which occurred before October 1, 1979.
(C) An annuity increase under this paragraph does not apply
with respect to service performed after completion of 20 years
of service (or any combination of service) as a law enforcement
officer or firefighter.
(5) For the purpose of this subsection--
(A) ``Panama Canal service'' means--
(i) service as an employee of the Panama
Canal Commission; or
(ii) service at a permanent duty station in
the Canal Zone or Republic of Panama as an
employee of an Executive agency conducting
operations in the Canal Zone or Republic of
Panama; and
(B) ``Executive agency'' includes the Smithsonian
Institution.
(6) The annuity of an employee retiring under section
8336(j) of this title is computed under subsection (a) of this
section, except that with respect to service on or after
December 21, 1972, the employee's annuity is--
(A) 2\1/2\ percent of the employee's average pay
multiplied by so much of the employee's service on or
after that date as does not exceed 20 years; plus
(B) 2 percent of the employee's average pay
multiplied by so much of the employee's service on or
after that date as exceeds 20 years.
(7) The annuity of an employee who is a judge of the United
States Court of Appeals for the Armed Forces, or a former judge
of such court, retiring under this subchapter is computed under
subsection (a) of this section, except, with respect to his
service as a judge of such court, his service as a Member, his
congressional employee service, and his military service (not
exceeding 5 years) creditable under section 8332 of this title,
his annuity is computed by multiplying 2\1/2\ percent of his
average pay by the years of that service.
(e) The annuity of an employee retiring under section
8336(e) of this title is computed under subsection (a) of this
section. That annuity may not be less than 50 percent of the
average pay of the employee unless such employee has received,
pursuant to section 8342 of this title, payment of the lump-sum
credit attributable to deductions under section 8334(a) of this
title during any period of employment as an air traffic
controller and such employee has not deposited in the Fund the
amount received, with interest, pursuant to section 8334(d)(1)
of this title.
(f) The annuity computed under subsections (a) through (e),
(n), (q), (r), and (s) may not exceed 80 percent of--
(1) the average pay of the employee; or
(2) the greatest of--
(A) the final basic pay of the Member;
(B) the average pay of the Member; or
(C) the final basic pay of the appointive
position of a former Member who elects to have
his annuity computed or recomputed under
section 8344(d)(1) of this title.
(g) The annuity of an employee or Member retiring under
section 8337 of this title is at least the smaller of--
(1) 40 percent of his average pay; or
(2) the sum obtained under subsections (a) through
(c), (n), (q), (r), or (s) after increasing his service
of the type last performed by the period elapsing
between the date of separation and the date he becomes
60 years of age.
However, if an employee or Member retiring under section 8337
of this title is receiving retired pay or retainer pay for
military service (except that specified in section 8332(c)(1)
of (2) of this title) or pension or compensation from the
Department of Veterans Affairs in lieu of such retired or
retainer pay, the annuity of that employee or Member shall be
computed under subsection (a), (b), (c), (n), (q), (r), or (s),
as appropriate, excluding credit for military service from that
computation. If the amount of the annuity so computed, plus the
retired or retainer pay which is received, or which would be
received but for the pension or compensation from the
Department of Veterans Affairs in lieu of such retired or
retainer pay, is less than the smaller of the annuity otherwise
payable under paragraph (1) or (2) of this subsection, an
amount equal to the difference shall be added to the annuity
payable under subsection (a), (b), (c), (n), (q), (r), or (s),
as appropriate.
(h) The annuity computed under subsections (a), (b),
(d)(5), and (f) of this section for an employee retiring under
section 8336(d), (h), (j), or (o) of this title is reduced by
\1/6\ of 1 percent for each full month the employee is under 55
years of age at the date of separation, except that such
reduction shall not apply in the case of an employee retiring
under section 8336(h) for failure to be recertified as a senior
executive. The annuity computed under subsections (c) and (f)
of this section for a Member retiring under the second or third
sentence of section 8336(g) of this title or the third sentence
of section 8338(b) of this title is reduced by \1/12\ of 1
percent for each full month not in excess of 60 months, and \1/
6\ of 1 percent for each full month in excess of 60 months the
Member is under 60 years of age at the date of separation. The
annuity computed under subsections (a), (d)(6), and (f) of this
section for a judge of the United States Court of Appeals for
the Armed Forces retiring under the second sentence of section
8336(k) of this title or the third sentence of section 8338(c)
of this title is reduced by \1/12\ of 1 percent for each full
month not in excess of 60 months, and \1/6\ of 1 percent for
each full month in excess of 60 months, the judge is under 60
years of age at the date of separation.
(i) For the purposes of subsections (a)-(h), (n), (q), (r),
or (s), the total service of any employee or Member shall not
include any period of civilian service after July 31, 1920, for
which retirement deductions or deposits have not been made
under section 8334(a) of this title unless--
(1) the employee or Member makes a deposit for such
period as provided in section 8334(c) or (d)(1) of this
title; or
(2) no deposit is required for such service, as
provided under section 8334(g) of this title or under
any statute.
(j)(1) The annuity computed under subsections (a)-(i), (n),
(q), (r), and (s) (or a portion of the annuity, if jointly
designated for this purpose by the employee or Member and the
spouse of the employee or Member under procedures prescribed by
the Office of Personnel Management) for an employee or Member
who is married at the time of retiring under this subchapter is
reduced as provided in paragraph (4) of this subsection in
order to provide a survivor annuity for the spouse under
section 8341(b) of this title, unless the employee or Member
and the spouse jointly waive the spouse's right to a survivor
annuity in a written election filed with the Office at the time
that the employee or Member retires. Each such election shall
be made in accordance with such requirements as the Office
shall, by regulation, prescribe, and shall be irrevocable. The
Office shall provide, by regulation, that an employee or Member
may waive the survivor annuity without the spouse's consent if
the employee or Member establishes to the satisfaction of the
Office--
(A) that the spouse's whereabouts cannot be
determined, or
(B) that, due to exceptional circumstances,
requiring the employee or Member to seek the spouse's
consent would otherwise be inappropriate.
(2) If an employee or Member has a former spouse who is
entitled to a survivor annuity as provided in section 8341(h)
of this title, the annuity of the employee or Member computed
under subsections (a)-(i), (n), (q), (r), and (s) (or any
designated portion of the annuity, in the event that the former
spouse is entitled to less than 55 percent of the employee or
Member's annuity) is reduced as provided in paragraph (4) of
this subsection.
(3) An employee or Member who has a former spouse may
elect, under procedures prescribed by the Office, to have the
annuity computed under subsections (a)-(i), (n), (q), (r), and
(s) or a portion thereof reduced as provided in paragraph (4)
of this subsection in order to provide a survivor annuity for
such former spouse under section 8341(h) of this title, unless
all rights to survivor benefits for such former spouse under
this subchapter based on marriage to such employee or Member
were waived under paragraph (1) of this subsection. An election
under this paragraph shall be made at the time of retirement
or, if later, within 2 years after the date on which the
marriage of the former spouse to the employee or Member is
dissolved, subject to a deposit in the Fund by the retired
employee or Member of an amount determined by the Office, as
nearly as may be administratively feasible, to reflect the
amount by which the annuity of such employee or Member would
have been reduced if the election had been continuously in
effect since the date the annuity commenced, plus interest. For
the purposes of the preceding sentence, the annual rate of
interest for each year during which the annuity would have been
reduced if the election had been in effect since the date the
annuity commenced shall be 6 percent. The Office shall, by
regulation, provide for payment of the deposit required under
this paragraph by a reduction in the annuity of the employee or
Member. The reduction shall, to the extent practicable, be
designed so that the present value of the future reduction is
actuarially equivalent to the deposit required under this
paragraph, except that the total reductions in the annuity of
an employee or Member to pay deposits required by the
provisions of this paragraph, paragraph (5), or subsection
(k)(2) shall not exceed 25 percent of the annuity computed
under subsections (a) through (i), (n), and (q), including
adjustments under section 8340. The reduction, which shall be
effective on the same date as the election under this
paragraph, shall be permanent and unaffected by any future
termination of the entitlement of the former spouse. Such
reduction shall be independent of and in addition to the
reduction required under the first sentence of this paragraph.
An election under this paragraph--
(A) shall not be effective to the extent that it--
(i) conflicts with--
(I) any court order or decree
referred to in subsection (h)(1) of
section 8341 of this title, which was
issued before the date of such
election; or
(II) any agreement referred to in
such subsection which was entered into
before such date; or
(ii) would cause the total of survivor
annuities payable under subsections (b), (d),
(f), and (h) of section 8341 of this title
based on the service of the employee or Member
to exceed 55 percent of the annuity to which
the employee or Member is entitled under
subsections (a)-(i), (n), (q), (r), and (s);
and
(B) shall not be effective, in the case of an
employee or Member who is then married, unless it is
made with the spouse's written consent.
The Office shall provide by regulation that subparagraph (B) of
this paragraph may be waived for either of the reasons set
forth in the last sentence of paragraph (1) of this subsection.
In the case of a retired employee or Member whose annuity is
being reduced in order to provide a survivor annuity for a
former spouse, an election to provide or increase a survivor
annuity for any other former spouse (and to continue an
appropriate reduction) may be made within the same period that,
and subject to the same conditions under which, an election
could be made under paragraph (5)(B) of this subsection for a
current spouse (subject to the provisions of this paragraph
relating to consent of a current spouse, if the retired
employee or Member is then married). The opportunity to make an
election under the preceding sentence is in addition to any
opportunity otherwise afforded under this paragraph.
(4) In order to provide a survivor annuity or combination
of survivor annuities under subsections (b), (d), (f), and (h)
of section 8341 of this title, the annuity of an employee or
Member (or any designated portion or portions thereof) is
reduced by 2\1/2\ percent of the first $3,600 thereof plus 10
percent of so much thereof as exceeds $3,600.
(5)(A) Any reduction in an annuity for the purpose of
providing a survivor annuity for the current spouse of a
retired employee or Member shall be terminated for each full
month--
(i) after the death of the spouse, or
(ii) after the dissolution of the spouse's marriage
to the employee or Member, except that an appropriate
reduction shall be made thereafter if the spouse is
entitled, as a former spouse, to a survivor annuity
under section 8341(h) of this title.
(B) Any reduction in an annuity for the purpose of
providing a survivor annuity for a former spouse of a retired
employee or Member shall be terminated for each full month
after the former spouse remarries before reaching age 55 or
dies. This reduction shall be replaced by an appropriate
reduction or reductions under paragraph (4) of this subsection
if the retired employee or Member has (i) another former spouse
who is entitled to a survivor annuity under section 8341(h) of
this title, (ii) a current spouse to whom the employee or
Member was married at the time of retirement and with respect
to whom a survivor annuity was not jointly waived under
paragraph (1) of this subsection, or (iii) a current spouse
whom the employee or Member married after retirement and with
respect to whom an election has been made under subparagraph
(C) of this paragraph or subsection (k)(2) of this section.
(C)(i) Upon remarriage, a retired employee or Member who
was married at the time of retirement (including an employee or
Member whose annuity was not reduced to provide a survivor
annuity for the employee or Member's spouse or former spouse as
of the time of retirement) may irrevocably elect during such
marriage, in a signed writing received by the Office within 2
years after such remarriage or, if later, within 2 years after
the death or remarriage of any former spouse of such employee
or Member who was entitled to a survivor annuity under section
8341(h) of this title (or of the last such surviving former
spouse, if there was more than one), a reduction in the
employee or Member's annuity under paragraph (4) of this
subsection for the purpose of providing an annuity for such
employee or Member's spouse in the event such spouse survives
the employee or Member.
(ii) Such election and reduction shall be effective the
first day of the second month after the election is received by
the Office, but not less than 9 months after the date of the
remarriage, and the retired employee or Member shall deposit in
the Fund an amount determined by the Office of Personnel
Management, as nearly as may be administratively feasible, to
reflect the amount by which the annuity of such retired
employee or Member would have been reduced if the election had
been in effect since the date of retirement or, if later, the
date the previous reduction in such retired employee or
Member's annuity was terminated under subparagraph (A) or (B)
of this paragraph, plus interest. For the purposes of the
preceding sentence, the annual rate of interest for each year
during which an annuity would have been reduced if the election
had been in effect on and after the applicable date referred to
in such sentence shall be 6 percent.
(iii) \1\ The Office shall, by regulation,
provide for payment of the deposit required
under clause (ii) by a reduction in the annuity
of the employee or Member. The reduction shall,
to the extent practicable, be designed so that
the present value of the future reduction is
actuarially equivalent to the deposit required
under clause (ii), except that total reductions
in the annuity of an employee or Member to pay
deposits required by the provisions of this
paragraph or paragraph (3) shall not exceed 25
percent of the annuity computed under
subsections (a) through (i), (n), and (q),
including adjustments under section 8340. The
reduction required by this clause, which shall
be effective on the same date as the election
under clause (i), shall be permanent and
unaffected by any future termination of the
marriage. Such reduction shall be independent
of and in addition to the reduction required
under clause (i).
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\1\ So in original. The margin of this clause probably should be
set full measure.
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(iv) Notwithstanding any other provision of this
subparagraph, an election under this subparagraph may not be
made for the purpose of providing an annuity in the case of a
spouse by remarriage if such spouse was married to the employee
or Member at the time of such employee or Member's retirement,
and all rights to survivor benefits for such spouse under this
subchapter based on marriage to such employee or Member were
then waived under paragraph (1) of this subsection or a similar
prior provision of law.
(v) An election to provide a survivor annuity to a person
under this subparagraph--
(I) shall prospectively void any election made by
the employee or Member under subsection (k)(1) of this
section with respect to such person; or
(II) shall, if an election was made by the employee
or Member under subsection (k)(1) with respect to a
different person, prospectively void such election if
appropriate written application is made by such
employee or Member at the time of making the election
under this subparagraph.
(vi) The deposit provisions of clauses (ii) and (iii) of
this subparagraph shall not apply if--
(I) the employee or Member makes an election under
this subparagraph after having made an election under
subsection (k)(1) of this section; and
(II) the election under subsection (k)(1) becomes
void under clause (v) of this subparagraph.
(k)(1) At the time of retiring under section 8336 or 8338
of this title, an employee or Member who is found to be in good
health by the Office may elect a reduced annuity instead of an
annuity computed under subsections (a)-(i), (n), (q), (r), and
(s) and name in writing an individual having an insurable
interest in the employee or Member to receive an annuity under
section 8341(c) of this title after the death of the retired
employee or Member. The annuity of the employee or Member
making the election is reduced by 10 percent, and by 5 percent
for each full 5 years the individual named is younger than the
retiring employee or Member. However, the total reduction may
not exceed 40 percent. An annuity which is reduced under this
paragraph or any similar prior provision of law shall,
effective the first day of the month following the death of the
individual named under this paragraph, be recomputed and paid
as if the annuity had not been so reduced. In the case of a
married employee or Member, an election under this paragraph on
behalf of the spouse may be made only if any right of such
spouse to a survivor annuity based on the service of such
employee or Member is waived in accordance with subsection
(j)(1) of this section.
(2)(A) An employee or Member, who is unmarried at the time
of retiring under a provision of law which permits election of
a reduced annuity with a survivor annuity payable to such
employee or Member's spouse and who later marries, may
irrevocably elect, in a signed writing received in the Office
within 2 years after such employee or Member marries or, if
later, within 2 years after the death or remarriage of any
former spouse of such employee or Member who was entitled to a
survivor annuity under section 8341(h) of this title (or of the
last such surviving former spouse, if there was more than one),
a reduction in the retired employee or Member's current annuity
as provided in subsection (j) of this section.
(B)(i) The election and reduction shall take effect the
first day of the first month beginning after the expiration of
the 9-month period beginning on the date of marriage. Any such
election to provide a survivor annuity for a person--
(I) shall prospectively void any election made by
the employee or Member under paragraph (1) of this
subsection with respect to such person; or
(II) shall, if an election was made by the employee
or Member under such paragraph with respect to a
different person, prospectively void such election if
appropriate written application is made by such
employee or Member at the time of making the election
under this paragraph.
(ii) The retired employee or Member shall deposit in the
Fund an amount determined by the Office of Personnel
Management, as nearly as may be administratively feasible, to
reflect the amount by which the retired employee or Member's
annuity would have been reduced under subsection (j)(4) of this
section since the commencing date of the annuity, if the
employee or Member had been married at the time of retirement
and had elected to provide a survivor annuity at that time,
plus interest. For the purposes of the preceding sentence, the
annual rate of interest for each year during which the annuity
would have been reduced if the election had been in effect
since the date of the annuity commenced shall be 6 percent.
(C) \1\ The Office shall, by regulation, provide
for payment of the deposit required under subparagraph
(B)(ii) by a reduction in the annuity of the employee
or Member. The reduction shall, to the extent
practicable, be designed so that the present value of
the future reduction is actuarially equivalent to the
deposit required under subparagraph (B)(ii), except
that total reductions in the annuity of an employee or
Member to pay deposits required by this subsection or
subsection (j)(3) shall not exceed 25 percent of the
annuity computed under subsections (a) through (i),
(n), and (q), including adjustments under section 8340.
The reduction required by this subparagraph, which
shall be effective on the same date as the election
under subparagraph (A), shall be permanent and
unaffected by any future termination of the marriage.
Such reduction shall be independent of and in addition
to the reduction required under subparagraph (A).
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\1\ So in original. The margin of this subparagraph probably should
be set full measure.
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(D) Subparagraphs (B)(ii) and (C) of this paragraph shall
not apply if--
(i) the employee or Member makes an election under
this paragraph after having made an election under
paragraph (1) of this subsection; and
(ii) the election under such paragraph (1) becomes
void under subparagraph (B)(i) of this paragraph.
(l) The annuity computed under subsections (a)-(k), (n),
(q), (r), and (s) for an employee who is a citizen of the
United States is increased by $36 for each year of service in
the employ of--
(1) the Alaska Engineering Commission, or The
Alaska Railroad, in Alaska between March 12, 1914, and
July 1, 1923; or
(2) the Isthmian Canal Commission, or the Panama
Railroad Company, on the Isthmus of Panama between May
4, 1904, and April 1, 1914.
(m) In computing any annuity under subsections (a) through
(e), (n), (q), (r), and (s), the total service of an employee
who retires on an immediate annuity or dies leaving a survivor
or survivors entitled to annuity includes, without regard to
the limitations imposed by subsection (f) of this section, the
days of unused sick leave to his credit under a formal leave
system, except that these days will not be counted in
determining average pay or annuity eligible under this
subchapter. For the purpose of this subsection, in the case of
any such employee who is excepted from subchapter I of chapter
63 of this title under section 6301(2)(x)-(xiii) of this title,
the days of unused sick leave to his credit include any unused
sick leave standing to his credit when he was excepted from
such subchapter.
(n) The annuity of an employee who is a Claims Court judge,
bankruptcy judge, or United States magistrate is computed, with
respect to service as a Claims Court judge, as a commissioner
of the Court of Claims, as a referee in bankruptcy, as a
bankruptcy judge, as a United States magistrate, and as a
United States commissioner, and with respect to the military
service of any such individual (not exceeding 5 years)
creditable under section 8332 of this title, by multiplying
2\1/2\ percent of the individual's average pay by the years of
that service.
(o)(1)(A) An employee or Member--
(i) who, at the time of retirement, is married, and
(ii) who notifies the Office at such time (in
accordance with subsection (j)) that a survivor annuity
under section 8341(b) of this title is not desired,
may, during the 18-month period beginning on the date of the
retirement of such employee or Member, elect to have a
reduction under subsection (j) made in the annuity of the
employee or Member (or in such portion thereof as the employee
or Member may designate) in order to provide a survivor annuity
for the spouse of such employee or Member.
(B) An employee or Member--
(i) who, at the time of retirement, is married, and
(ii) who at such time designates (in accordance
with subsection (j)) that a limited portion of the
annuity of such employee or Member is to be used as the
base for a survivor annuity under section 8341(b) of
this title,
may, during the 18-month period beginning on the date of the
retirement of such employee or Member, elect to have a greater
portion of the annuity of such employee or Member so used.
(2)(A) An election under subparagraph (A) or (B) of
paragraph (1) of this subsection shall not be considered
effective unless the amount specified in subparagraph (B) of
this paragraph is deposited into the Fund before the expiration
of the applicable 18-month period under paragraph (1).
(B) The amount to be deposited with respect to an election
under this subsection is an amount equal to the sum of--
(i) the additional cost to the System which is
associated with providing a survivor annuity under
subsection (b)(2) of this section and results from such
election taking into account (I) the difference (for
the period between the date on which the annuity of the
participant or former participant commences and the
date of the election) between the amount paid to such
participant or former participant under this subchapter
and the amount which would have been paid if such
election had been made at the time the participant or
former participant applied for the annuity, and (II)
the costs associated with providing for the later
election; and
(ii) interest on the additional cost determined
under clause (i) of this subparagraph computed using
the interest rate specified or determined under section
8334(e) of this title for the calendar year in which
the amount to be deposited is determined.
(3) An election by an employee or Member under this
subsection voids prospectively any election previously made in
the case of such employee or Member under subsection (j).
(4) An annuity which is reduced in connection with an
election under this subsection shall be reduced by the same
percentage reductions as were in effect at the time of
retirement of the employee or Member whose annuity is so
reduced.
(5) Rights and obligations resulting from the election of a
reduced annuity under this subsection shall be the same as the
rights and obligations which would have resulted had the
employee or Member involved elected such annuity at the time of
retiring.
(6) The Office shall, on an annual basis, inform each
employee or Member who is eligible to make an election under
this subsection of the right to make such election and the
procedures and deadlines applicable to such election.
(p)(1) In computing an annuity under this subchapter for an
employee whose service includes service that was performed on a
part-time basis--
(A) the average pay of the employee, to the extent
that it includes pay for service performed in any
position on a part-time basis, shall be determined by
using the annual rate of basic pay that would be
payable for full-time service in the position; and
(B) the benefit so computed shall then be
multiplied by a fraction equal to the ratio which the
employee's actual service, as determined by prorating
an employee's total service to reflect the service that
was performed on a part-time basis, bears to the total
service that would be creditable for the employee if
all of the service had been performed on a full-time
basis.
(2) For the purpose of this subsection, employment on a
part-time basis shall not be considered to include employment
on a temporary or intermittent basis.
(q) The annuity of a member of the Capitol Police, or
former member of the Capitol Police, retiring under this
subchapter is computed in accordance with subsection (b),
except that, in the case of a member who retires under section
8335(c) or 8336(m), and who meets the requirements of
subsection (b)(2), the annuity of such member is--
(1) 2\1/2\ percent of the member's average pay
multiplied by so much of such member's total service as
does not exceed 20 years; plus
(2) 2 percent of the member's average pay
multiplied by so much of such member's total service as
exceeds 20 years.
(r) The annuity of a member of the Supreme Court Police, or
former member of the Supreme Court Police, retiring under this
subchapter is computed in accordance with subsection (d).
(s) \1\ The annuity of a Member who has served in a
position in the executive branch for which the rate of basic
pay was reduced for the duration of the service of the Member
in that position to remove the impediment to the appointment of
the Member imposed by article I, section 6, clause 2 of the
Constitution, shall, subject to a deposit in the Fund as
provided under section 8334(m), be computed as though the rate
of basic pay which would otherwise have been in effect during
that period of service had been in effect.
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\1\ So in law. See section 308(b)(4) of the Departments of
Commerce, Justice, and State, the Judiciary, and Related Agencies
Appropriations Act, 2001 (as enacted into law by section 1(a)(2) of
Public Law 106-553; 114 Stat. 2762A-87, Appendix B) and section 3(b)(1)
of the Federal Physicians Comparability Allowance Amendments of 2000
(Public Law 106-571; 114 Stat. 3055).
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(s)(1) \1\ For purposes of this subsection, the term
``physicians comparability allowance'' refers to an amount
described in section 8331(3)(H).
(2) Except as otherwise provided in this subsection, no
part of a physicians comparability allowance shall be treated
as basic pay for purposes of any computation under this section
unless, before the date of the separation on which entitlement
to annuity is based, the separating individual has completed at
least 15 years of service as a Government physician (whether
performed before, on, or after the date of the enactment of
this subsection).
(3) If the condition under paragraph (2) is met, then, any
amounts received by the individual in the form of a physicians
comparability allowance shall (for the purposes referred to in
paragraph (2)) be treated as basic pay, but only to the extent
that such amounts are attributable to service performed on or
after the date of the enactment of this subsection, and only to
the extent of the percentage allowable, which shall be
determined as follows:
If the total amount of service
performed, on or after the date of Then, the percentage
the enactment of this subsection, allowable is:
as a Government physician is:
Less than 2 years......................................... 0
At least 2 but less than 4 years.......................... 25
At least 4 but less than 6 years.......................... 50
At least 6 but less than 8 years.......................... 75
At least 8 years.......................................... 100.
(4) Notwithstanding any other provision of this subsection,
100 percent of all amounts received as a physicians
comparability allowance shall, to the extent attributable to
service performed on or after the date of the enactment of this
subsection, be treated as basic pay (without regard to any of
the preceding provisions of this subsection) for purposes of
computing--
(A) an annuity under subsection (g); and
(B) a survivor annuity under section 8341, if based
on the service of an individual who dies before
separating from service.
Sec. 8340. Cost-of-living adjustment of annuities
(a) For the purpose of this section--
(1) the term ``base quarter'', as used with respect
to a year, means the calendar quarter ending on
September 30, of such year; and
(2) the price index for a base quarter is the
arithmetical mean of such index for the 3 months
comprising such quarter.
(b) Except as provided in subsection (c) of this section,
effective December 1 of each year, each annuity payable from
the Fund having a commencing date not later than such December
1 shall be increased by the percent change in the price index
for the base quarter of such year over the price index for the
base quarter of the preceding year in which an adjustment under
this subsection was made, adjusted to the nearest \1/10\ of 1
percent.
(c) Eligibility for an annuity increase under this section
is governed by the commencing date of each annuity payable from
the Fund as of the effective date of an increase, except as
follows:
(1) The first increase (if any) made under
subsection (b) of this section to an annuity which is
payable from the Fund to an employee or Member who
retires, to the widow, widower, or former spouse, of a
deceased employee or Member, or to the widow, widower,
former spouse, or insurable interest designee of a
deceased annuitant whose annuity has not been increased
under this subsection or subsection (b) of this
section, shall be equal to the product (adjusted to the
nearest \1/10\ of 1 percent) of--
(A) \1/12\ of the applicable percent change
computed under subsection (b) of this section,
multiplied by
(B) the number of months (not to exceed 12
months, counting any portion of a month as a
month)--
(i) for which the annuity was
payable from the Fund before the
effective date of the increase, or
(ii) in the case of a widow,
widower, former spouse, or insurable
interest designee of a deceased
annuitant whose annuity has not been so
increased, since the annuity was first
payable to the deceased annuitant.
(2) Effective from its commencing date, an annuity
payable from the Fund to an annuitant's survivor
(except a child entitled under section 8341(e) of this
title), which annuity commences the day after the death
of the annuitant and after the effective date of the
first increase under this section, shall be increased
by the total percent increase the annuitant was
receiving under this section at death. However, the
increase in a survivor annuity authorized by section 8
of the Act of May 29, 1930, as amended to July 6, 1950,
shall be computed as if the annuity commencing date had
been the effective date of the first increase under
this section.
(3) For the purpose of computing the annuity of a
child under section 8341(e) of this title that
commences after October 31, 1969, the items $900,
$1,080, $2,700, and $3,240 appearing in section 8341(e)
of this title shall be increased by the total percent
increases allowed and in force under this section on or
after such day and, in case of a deceased annuitant,
the items 60 percent and 75 percent appearing in
section 8341(e) of this title shall be increased by the
total percent allowed and in force to the annuitant
under this section on or after such day.
(d) This section does not authorize an increase in an
additional annuity purchased at retirement by voluntary
contributions.
(e) The monthly installment of annuity after adjustment
under this section shall be rounded to the next lowest dollar.
However, the monthly installment shall after adjustment reflect
an increase of at least $1.
(f) Effective September 1, 1966, or on the commencing date
of annuity, whichever is later, the annuity of each surviving
spouse whose entitlement to annuity payable from the Fund
resulted from the death of--
(1) an employee or Member before October 11, 1962;
or
(2) a retired employee or Member whose retirement
was based on a separation from service before October
11, 1962;
is increased by 10 percent.
(g)(1) An annuity shall not be increased by reason of any
adjustment under this section to an amount which exceeds the
greater of--
(A) the maximum pay payable for GS-15 30 days
before the effective date of the adjustment under this
section; or
(B) the final pay (or average pay, if higher) of
the employee or Member with respect to whom the annuity
is paid, increased by the overall annual average
percentage adjustments (compounded) in rates of pay of
the General Schedule under subchapter I of chapter 53
of this title during the period--
(i) beginning on the date the annuity
commenced (or, in the case of a survivor of the
retired employee or Member, the date the
employee's or Member's annuity commenced), and
(ii) ending on the effective date of the
adjustment under this section.
(2) For the purposes of paragraph (1) of this subsection,
``pay'' means the rate of salary or basic pay as payable under
any provision of law, including any provision of law limiting
the expenditure of appropriated funds.
Sec. 8341. Survivor annuities
(a) For the purpose of this section--
(1) ``widow'' means the surviving wife of an
employee or Member who--
(A) was married to him for at least 9
months immediately before his death; or
(B) is the mother of issue by that
marriage;
(2) ``widower'' means the surviving husband of an
employee or Member who--
(A) was married to her for at least 9
months immediately before her death; or
(B) is the father of issue by that
marriage;
(3) ``dependent'', in the case of any child, means
that the employee or Member involved was, at the time
of the employee or Member's death, either living with
or contributing to the support of such child, as
determined in accordance with such regulations as the
Office of Personnel Management shall prescribe; and
(4) ``child'' means--
(A) an unmarried dependent child under 18
years of age, including (i) an adopted child,
and (ii) a stepchild but only if the stepchild
lived with the employee or Member in a regular
parent-child relationship, and (iii) a
recognized natural child, and (iv) a child who
lived with and for whom a petition of adoption
was filed by an employee or Member, and who is
adopted by the surviving spouse of the employee
or Member after his death;
(B) such unmarried dependent child
regardless of age who is incapable of self-
support because of mental or physical
disability incurred before age 18; or
(C) such unmarried dependent child between
18 and 22 years of age who is a student
regularly pursuing a full-time course of study
or training in residence in a high school,
trade school, technical or vocational
institute, junior college, college, university,
or comparable recognized educational
institution.
For the purpose of this paragraph and subsection (e) of
this section, a child whose 22nd birthday occurs before
July 1 or after August 31 of a calendar year, and while
he is regularly pursuing such a course of study or
training, is deemed to have become 22 years of age on
the first day of July after that birthday. A child who
is a student is deemed not to have ceased to be a
student during an interim between school years if the
interim is not more than 5 months and if he shows to
the satisfaction of the Office of Personnel Management
that he has a bona fide intention of continuing to
pursue a course of study or training in the same or
different school during the school semester (or other
period into which the school year is divided)
immediately after the interim.
(b)(1) Except as provided in paragraph (2) of this
subsection, if an employee or Member dies after having retired
under this subchapter and is survived by a widow or widower,
the widow or widower is entitled to an annuity equal to 55
percent (or 50 percent if retired before October 11, 1962) of
an annuity computed under section 8339 (a)-(i), (n), (p), (q),
(r), and (s) as may apply with respect to the annuitant, or of
such portion thereof as may have been designated for this
purpose under section 8339(j)(1) of this title, unless the
right to a survivor annuity was waived under section 8339(j)(1)
or, in the case of remarriage, the employee or Member did not
file an election under section 8339(j)(5)(C) or section
8339(k)(2) of this title, as the case may be.
(2) If an annuitant--
(A) who retired before April 1, 1948; or
(B) who elected a reduced annuity provided in
paragraph (2) of section 8339(k) of this title;
dies and is survived by a widow or widower, the widow or
widower is entitled to an annuity in an amount which would have
been paid had the annuitant been married to the widow or
widower at the time of retirement.
(3) A spouse acquired after retirement is entitled to a
survivor annuity under this subsection only upon electing this
annuity instead of any other survivor benefit to which he may
be entitled under this subchapter or another retirement system
for Government employees. The annuity of the widow or widower
under this subsection commences on the day after the annuitant
dies. This annuity and the right thereto terminate on the last
day of the month before the widow or widower--
(A) dies; or
(B) except as provided in subsection (k), remarries
before becoming 55 years of age.
(4) Notwithstanding the preceding provisions of this
subsection, the annuity payable under this subsection to the
widow or widower of a retired employee or Member may not exceed
the difference between--
(A) the amount which would otherwise be payable to
such widow or widower under this subsection (determined
without regard to any waiver or designation under
section 8339(j)(1) of this title or a prior similar
provision of law), and
(B) the amount of the survivor annuity payable to
any former spouse of such employee or Member under
subsection (h) of this section.
(c) The annuity of a survivor named under section
8339(k)(1) of this title is 55 percent of the reduced annuity
of the retired employee or Member. The annuity of the survivor
commences on the day after the retired employee or Member dies.
This annuity and the right thereto terminate on the last day of
the month before the survivor dies.
(d) If an employee or Member dies after completing at least
18 months of civilian service, his widow or widower is entitled
to an annuity equal to 55 percent of an annuity computed under
section 8339(a)-(f), (i), (n), (p), (q), (r), and (s) as may
apply with respect to the employee or Member, except that, in
the computation of the annuity under such section, the annuity
of the employee or Member shall be at least the smaller of--
(1) 40 percent of his average pay; or
(2) the sum obtained under such section after
increasing his service of the type last performed by
the period elapsing between the date of death and the
date he would have become 60 years of age.
Notwithstanding the preceding sentence, the annuity payable
under this subsection to the widow or widower of an employee or
Member may not exceed the difference between--
(A) the amount which would otherwise be payable to
such widow or widower under this subsection, and
(B) the amount of the survivor annuity payable to
any former spouse of such employee or Member under
subsection (h) of this section.
The annuity of the widow or widower commences on the day after
the employee or Member dies. This annuity and the right thereto
terminate on the last day of the month before the widow or
widower--
(i) dies; or
(ii) except as provided in subsection (k),
remarries before becoming 55 years of age.
(e)(1) For the purposes of this subsection, ``former
spouse'' includes a former spouse who was married to an
employee or Member for less than 9 months and a former spouse
of an employee or Member who completed less than 18 months of
service covered by this subchapter.
(2) If an employee or Member dies after completing at least
18 months of civilian service, or an employee or Member dies
after retiring under this subchapter, and is survived by a
spouse or a former spouse who is the natural or adoptive parent
of a surviving child of the employee or Member, that surviving
child is entitled to an annuity equal to the smallest of--
(A) 60 percent of the average pay of the employee
or Member divided by the number of children;
(B) $900; or
(C) $2,700 divided by the number of children;
subject to section 8340 of this title. If the employee or
Member is not survived by a spouse or a former spouse who is
the natural or adoptive parent of a surviving child of the
employee or Member, that surviving child is entitled to an
annuity equal to the smallest of--
(i) 75 percent of the average pay of the employee
or Member divided by the number of children;
(ii) $1,080; or
(iii) $3,240 divided by the number of children;
subject to section 8340 of this title.
(3) The annuity of a child under this subchapter or under
the Act of May 29, 1930, as amended from and after February 28,
1948, commences on the day after the employee or Member dies,
or commences or resumes on the first day of the month in which
the child later becomes or again becomes a student as described
by subsection (a)(3) of this section, if any lump sum paid is
returned to the Fund. This annuity and the right thereto
terminate on the last day of the month before the child--
(A) becomes 18 years of age unless he is then a
student as described or incapable of self-support;
(B) becomes capable of self-support after becoming
18 years of age unless he is then such a student;
(C) becomes 22 years of age if he is then such a
student and capable of self-support;
(D) ceases to be such a student after becoming 18
years of age unless he is then incapable of self-
support; or
(E) dies or marries;
whichever first occurs. On the death of the surviving spouse or
former spouse or termination of the annuity of a child, the
annuity of any other child or children shall be recomputed and
paid as though the spouse, former spouse, or child had not
survived the employee or Member.
(4) If the annuity of a child under this subchapter
terminates under paragraph (3)(E) because of marriage, then, if
such marriage ends, such annuity shall resume on the first day
of the month in which it ends, but only if--
(A) any lump sum paid is returned to the Fund; and
(B) that individual is not otherwise ineligible for
such annuity.
(f) If a Member heretofore or hereafter separated from the
service with title to deferred annuity from the Fund hereafter
dies before having established a valid claim for annuity and is
survived by a spouse to whom married at the date of separation,
the surviving spouse--
(1) is entitled to an annuity equal to 55 percent
of the deferred annuity of the Member commencing on the
day after the Member dies and terminating on the last
day of the month before the surviving spouse dies or
remarries; or
(2) may elect to receive the lump-sum credit
instead of annuity if the spouse is the individual who
would be entitled to the lump-sum credit and files
application therefor with the Office before the award
of the annuity.
Notwithstanding the preceding sentence, an annuity payable
under this subsection to the surviving spouse of a Member may
not exceed the difference between--
(A) the annuity which would otherwise be payable to
such surviving spouse under this subsection, and
(B) the amount of the survivor annuity payable to
any former spouse of such Member under subsection (h)
of this section.
(g) In the case of a surviving spouse whose annuity under
this section is terminated because of remarriage before
becoming 55 years of age, annuity at the same rate shall be
restored commencing on the day the remarriage is dissolved by
death, annulment, or divorce, if--
(1) the surviving spouse elects to receive this
annuity instead of a survivor benefit to which he may
be entitled, under this subchapter or another
retirement system for Government employees, by reason
of the remarriage; and
(2) any lump sum paid on termination of the annuity
is returned to the Fund.
(h)(1) Subject to paragraphs (2) through (5) of this
subsection, a former spouse of a deceased employee, Member,
annuitant, or former Member who was separated from the service
with title to a deferred annuity under section 8338(b) of this
title is entitled to a survivor annuity under this subsection,
if and to the extent expressly provided for in an election
under section 8339(j)(3) of this title, or in the terms of any
decree of divorce or annulment or any court order or court-
approved property settlement agreement incident to such decree.
(2)(A) The annuity payable to a former spouse under this
subsection may not exceed the difference between--
(i) the amount applicable in the case of such
former spouse, as determined under subparagraph (B) of
this paragraph, and
(ii) the amount of any annuity payable under this
subsection to any other former spouse of the employee,
Member, or annuitant, based on an election previously
made under section 8339(j)(3) of this title, or a court
order previously issued.
(B) The applicable amount, for purposes of subparagraph
(A)(i) of this paragraph in the case of a former spouse, is the
amount which would be applicable--
(i) under subsection (b)(4)(A) of this section in
the case of a widow or widower, if the deceased was an
employee or Member who died after retirement;
(ii) under subparagraph (A) of subsection (d) of
this section in the case of a widow or widower, if the
deceased was an employee or Member described in the
first sentence of such subsection; or
(iii) under subparagraph (A) of subsection (f) of
this section in the case of a surviving spouse, if the
deceased was a Member described in the first sentence
of such subsection.
(3) The commencement and termination of an annuity payable
under this subsection shall be governed by the terms of the
applicable order, decree, agreement, or election, as the case
may be, except that any such annuity--
(A) shall not commence before--
(i) the day after the employee, Member, or
annuitant dies, or
(ii) the first day of the second month
beginning after the date on which the Office
receives written notice of the order, decree,
agreement, or election, as the case may be,
together with such additional information or
documentation as the Office may prescribe,
whichever is later, and
(B) shall terminate--
(i) except as provided in subsection (k),
in the case of an annuity computed by reference
to clause (i) or (ii) of paragraph (2)(B) of
this subsection, no later than the last day of
the month before the former spouse remarries
before becoming 55 years of age or dies; or
(ii) in the case of an annuity computed by
reference to clause (iii) of such paragraph, no
later than the last day of the month before the
former spouse remarries or dies.
(4) For purposes of this subchapter, a modification in a
decree, order, agreement, or election referred to in paragraph
(1) of this subsection shall not be effective--
(A) if such modification is made after the
retirement or death of the employee or Member
concerned, and
(B) to the extent that such modification involves
an annuity under this subsection.
(5) For purposes of this subchapter, a decree, order,
agreement, or election referred to in paragraph (1) of this
subsection shall not be effective, in the case of a former
spouse, to the extent that it is inconsistent with any joint
designation or waiver previously executed with respect to such
former spouse under section 8339(j)(1) of this title or a
similar prior provision of law.
(6) Any payment under this subsection to a person bars
recovery by any other person.
(7) As used in this subsection, ``court'' means any court
of any State, the District of Columbia, and Commonwealth of
Puerto Rico, Guam, the Northern Mariana Islands, or the Virgin
Islands, and any Indian court.
(i) The requirement in subsections (a)(1)(A) and (a)(2)(A)
of this section that the surviving spouse of an employee or
Member have been married to such employee or Member for at
least 9 months immediately before the employee or Member's
death in order to qualify as the widow or widower of such
employee or Member shall be deemed satisfied in any case in
which the employee or Member dies within the applicable 9-month
period, if--
(1) the death of the employee or Member was
accidental; or
(2) the surviving spouse of such individual had
been previously married to the individual and
subsequently divorced, and the aggregate time married
is at least 9 months.
(k)(1) \1\ Subsections (b)(3)(B), (d)(ii), and (h)(3)(B)(i)
(to the extent that they provide for termination of a survivor
annuity because of a remarriage before age 55) shall not apply
if the widow, widower, or former spouse was married for at
least 30 years to the individual on whose service the survivor
annuity is based.
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\1\ So in law. This subsection (as added by section 518 of Public
Law 105-61; 111 Stat. 1307) probably should have been a new subsection
(j).
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(2) A remarriage described in paragraph (1) shall not be
taken into account for purposes of section 8339(j)(5)(B) or (C)
or any other provision of this chapter which the Office may by
regulation identify in order to carry out the purposes of this
subsection.
Sec. 8342. Lump-sum benefits; designation of beneficiary; order of
precedence
(a) Subject to subsection (j) of this section, an employee
or Member who--
(1)(A) is separated from the service for at least
thirty-one consecutive days; or
(B) is transferred to a position in which he is not
subject to this subchapter, or chapter 84 of this
title, and remains in such a position for at least
thirty-one consecutive days;
(2) files an application with the Office of
Personnel Management for payment of the lump-sum
credit;
(3) is not reemployed in a position in which he is
subject to this subchapter, or chapter 84 of this
title, at the time he files the application; and
(4) will not become eligible to receive an annuity
within thirty-one days after filing the application,
is entitled to be paid the lump-sum credit. Except as provided
in section 8343a or 8334(d)(2) of this title, the receipt of
the payment of the lump-sum credit by the employee or Member
voids all annuity rights under this subchapter based on the
service on which the lump-sum credit is based, until the
employee or Member is reemployed in the service subject to this
subchapter. In applying this subsection to an employee or
Member who becomes subject to chapter 84 (other than by an
election under title III of the Federal Employees' Retirement
System Act of 1986) and who, while subject to such chapter,
files an application with the Office for a payment under this
subsection--
(i) entitlement to payment of the lump-sum credit
shall be determined without regard to paragraph (1) or
(3) if, or to the extent that, such lump-sum credit
relates to service of a type described in clauses (i)
through (iii) of section 302(a)(1)(C) of the Federal
Employees' Retirement System Act of 1986; and
(ii) if, or to the extent that, the lump-sum credit
so relates to service of a type referred to in clause
(i), it shall (notwithstanding section 8331(8)) consist
of--
(I) the amount by which any unrefunded
amount described in section 8331(8) (A) or (B)
relating to such service, exceeds 1.3 percent
of basic pay for such service; and
(II) interest on the amount payable under
subclause (I), computed in a manner consistent
with applicable provisions of section 8331(8).
(b) Under regulations prescribed by the Office, a present
or former employee or Member may designate a beneficiary or
beneficiaries for the purpose of this subchapter.
(c) Lump-sum benefits authorized by subsections (d)-(f) of
this section shall be paid to the person or persons surviving
the employee or Member and alive at the date title to the
payment arises in the following order of precedence, and the
payment bars recovery by any other person:
First, to the beneficiary or beneficiaries
designated by the employee or Member in a signed and
witnessed writing received in the Office before his
death. For this purpose, a designation, change, or
cancellation of beneficiary in a will or other document
not so executed and filed has no force or effect.
Second, if there is no designated beneficiary, to
the widow or widower of the employee or Member.
Third, if none of the above, to the child or
children of the employee or Member and descendants of
deceased children by representation.
Fourth, if none of the above, to the parents of the
employee or Member or the survivor of them.
Fifth, if none of the above, to the duly appointed
executor or administrator of the estate of the employee
or Member.
Sixth, if none of the above, to such other next of
kin of the employee or Member as the Office determines
to be entitled under the laws of the domicile of the
employee or Member at the date of his death.
For the purpose of this subsection, ``child'' includes a
natural child and an adopted child, but does not include a
stepchild.
(d) If an employee or Member dies--
(1) without a survivor; or
(2) with a survivor or survivors and the right of
all survivors terminates before a claim for survivor
annuity is filed;
or if a former employee or Member not retired dies, the lump-
sum credit shall be paid.
(e) If all annuity rights under this subchapter based on
the service of a deceased employee or Member terminate before
the total annuity paid equals the lump-sum credit, the
difference shall be paid.
(f) If an annuitant dies, annuity accrued and unpaid shall
be paid.
(g) Annuity accrued and unpaid on the termination, except
by death, of the annuity of an annuitant or survivor annuitant
shall be paid to that individual. Annuity accrued and unpaid on
the death of a survivor annuitant shall be paid in the
following order of precedence, and the payment bars recovery by
any other person:
First, to the duly appointed executor or
administrator of the estate of the survivor annuitant.
Second, if there is no executor or administrator,
payment may be made, after 30 days from the date of
death of the survivor annuitant, to such next of kin of
the survivor annuitant as the Office determines to be
entitled under the laws of the domicile of the survivor
annuitant at the date of his death.
(h) Amounts deducted and withheld from the basic pay of an
employee or Member from the first day of the first month which
begins after he has performed sufficient service (excluding
service which the employee or Member elects to eliminate for
the purpose of annuity computation under section 8339 of this
title) to entitle him to the maximum annuity provided by
section 8339 of this title, together with interest on the
amounts at the rate of 3 percent a year compounded annually
from the date of the deductions to the date of retirement or
death, shall be applied toward any deposit due under section
8334 of this title, and any balance not so required is deemed a
voluntary contribution for the purpose of section 8343 of this
title.
(i) An employee who--
(1) is separated from the service before July 12,
1960; and
(2) continues in the service after July 12, 1960,
without break in service of 1 workday or more;
is entitled to the benefits of subsection (h) of this section.
(j)(1)(A) Payment of the lump-sum credit under subsection
(a) may be made only if the spouse, if any, and any former
spouse of the employee or Member are notified of the employee
or Member's application.
(B) The Office shall prescribe regulations under which the
lump-sum credit shall not be paid without the consent of a
spouse or former spouse of the employee or Member where the
Office has received such additional information and
documentation as the Office may require that--
(i) a court order bars payment of the lump-sum
credit in order to preserve the court's ability to
award an annuity under section 8341(h) or section
8345(j); or
(ii) payment of the lump-sum credit would
extinguish the entitlement of the spouse or former
spouse, under a court order on file with the Office, to
a survivor annuity under section 8341(h) or to any
portion of an annuity under section 8345( j).
(2)(A) Notification of a spouse or former spouse under this
subsection shall be made in accordance with such requirements
as the Office shall by regulation prescribe.
(B) Under the regulations, the Office may provide that
paragraph (1)(A) of this subsection may be waived with respect
to a spouse or former spouse if the employee or Member
establishes to the satisfaction of the Office that the
whereabouts of such spouse or former spouse cannot be
determined.
(3) The Office shall prescribe regulations under which this
subsection shall be applied in any case in which the Office
receives two or more such orders or decrees.
Sec. 8343. Additional annuities; voluntary contributions
(a) Under regulations prescribed by the Office of Personnel
Management, an employee or Member may voluntarily contribute
additional sums in multiples of $25, but the total may not
exceed 10 percent of his basic pay for creditable service after
July 31, 1920. The voluntary contribution account in each case
is the sum of unrefunded contributions, plus interest at 3
percent a year through December 31, 1984, and thereafter at the
rate computed under section 8334(e) of this title, compounded
annually to--
(1) the date of payment under subsection (d) of
this section, separation, or transfer to a position in
which he does not continue subject to this subchapter,
whichever is earliest; or
(2) the commencing date fixed for a deferred
annuity or date of death, whichever is earlier, in the
case of an individual who is separated with title to
deferred annuity and does not claim the voluntary
contribution account.
(b) The voluntary contribution account is used to purchase
at retirement an annuity in addition to the annuity otherwise
provided. For each $100 in the voluntary contribution account,
the additional annuity consists of $7, increased by 20 cents
for each full year, if any, the employee or Member is over 55
years of age at the date of retirement.
(c) A retiring employee or Member may elect a reduced
additional annuity instead of the additional annuity described
by subsection (b) of this section and designate in writing an
individual to receive after his death an annuity of 50 percent
of his reduced additional annuity. The additional annuity of
the employee or Member making the election is reduced by 10
percent, and by 5 percent for each full 5 years the individual
designated is younger than the retiring employee or Member.
However, the total reduction may not exceed 40 percent.
(d) A present or former employee or Member is entitled to
be paid the voluntary contribution account if he files
application for payment with the Office before receiving an
additional annuity. An individual who has been paid the
voluntary contribution account may not again deposit additional
sums under this section until, after a separation from the
service of more than 3 calendar days, he again becomes subject
to this subchapter.
(e) If a present or former employee or Member not retired
dies, the voluntary contribution account is paid under section
8342(c) of this title. If all additional annuities or any right
thereto based on the voluntary contribution account of a
deceased employee or Member terminate before the total
additional annuity paid equals the account, the difference is
paid under section 8342(c) of this title.
Sec. 8343a. Alternative forms of annuities
(a) The Office of Personnel Management shall prescribe
regulations under which any employee or Member who has a life-
threatening affliction or other critical medical condition may,
at the time of retiring under this subchapter (other than under
section 8337 of this title), elect annuity benefits under this
section instead of any other benefits under this subchapter
(including any benefits under section 8341 of this title) based
on the service of the employee or Member.
(b) Subject to subsection (c), the Office shall by
regulation provide for such alternative forms of annuities as
the Office considers appropriate, except that among the
alternatives offered shall be--
(1) an alternative which provides for--
(A) payment of the lump-sum credit to the
employee or Member; and
(B) payment of an annuity to the employee
or Member for life; and
(2) in the case of an employee or Member who is
married at the time of retirement, an alternative which
provides for--
(A) payment of the lump-sum credit to the
employee or Member; and
(B) payment of an annuity to the employee
or Member for life, with a survivor annuity
payable for the life of a surviving spouse.
(c) Each alternative provided for under subsection (b)
shall, to the extent practicable, be designed such that the
present value of the benefits provided under such alternative
(including any lump-sum credit) is actuarially equivalent to
the present value of the annuity which would otherwise be
provided the employee or Member under this subchapter, as
computed under subsections (a)-(i), (n), and (q) of section
8339 of this title.\1\
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\1\ Section 516(a)(5) of the Treasury and General Governement
Appropriations Act, 1998 (Public Law 105-61; 111 Stat. 1306) amends
``section 8334a(c)'' by striking ``and (q) of section 8339 of this
title'' and inserting ``(q), and (r) of section 8339''. The amendment
was not executed because it should have been made to ``section 8343a''.
Section 308(h)(5) of the Departments of Commerce, Justice, and
State, the Judiciary, and Related Agencies Appropriations Act, 2001 (as
enacted into law by section 1(a)(2) of Public Law 106-553; 114 Stat.
2762A-89, Appendix B) attempts to amend this provision by striking
``(a)-(i), (n), (q), and (r)'' and inserting ``(a)-(i), (n), (q), (r),
and (s)''.
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(d) An employee or Member who, at the time of retiring
under this subchapter--
(1) is married, shall be ineligible to make an
election under this section unless a waiver is made
under section 8339(j)(1) of this title; or
(2) has a former spouse, shall be ineligible to
make an election under this section if the former
spouse is entitled to benefits under section 8341(h) or
8345(j) of this title (based on the service of the
employee or Member) under the terms of a decree of
divorce or annulment, or a court order or court-
approved property settlement incident to any such
decree, with respect to which the Office has been duly
notified.
(e) An employee or Member who is married at the time of
retiring under this subchapter and who makes an election under
this section may, during the 18-month period beginning on the
date of retirement, make the election provided for under
section 8339(o) of this title, subject to the deposit
requirement thereunder.
Sec. 8344. Annuities and pay on reemployment
(a) If an annuitant receiving annuity from the Fund,
except--
(1) a disability annuitant whose annuity is
terminated because of his recovery or restoration of
earning capacity;
(2) an annuitant whose annuity, based on an
involuntary separation (other than an automatic
separation or an involuntary separation for cause on
charges of misconduct or delinquency), is terminated
under subsection (b) of this section;
(3) an annuitant whose annuity is terminated under
subsection (c) of this section; or
(4) a Member receiving annuity from the Fund;
becomes employed in an appointive or elective position, his
service on and after the date he is so employed is covered by
this subchapter. Deductions for the Fund may not be withheld
from his pay unless the individual elects to have such
deductions withheld under subparagraph (A). An amount equal to
the annuity allocable to the period of actual employment shall
be deducted from his pay, except for lump-sum leave payment
purposes under section 5551 of this title. The amounts so
deducted shall be deposited in the Treasury of the United
States to the credit of the Fund. If the annuitant serves on a
full-time basis, except as President, for at least 1 year, on a
part-time basis for periods equivalent to at least 1 year of
full-time service, in employment not excluding him from
coverage under section 8331(1) (i) or (ii) of this title--
(A) deductions for the Fund may be withheld from
his pay (if the employee so elects), and his annuity on
termination of employment is increased by an annuity
computed under section 8339 (a), (b), (d), (e), (h),
(i), (n), (q), (r), and (s) as may apply based on the
period of employment and the basic pay, before
deduction, averaged during that employment; and
(B) his lump-sum credit may not be reduced by
annuity paid during that employment.
If the annuitant is receiving a reduced annuity as provided in
section 8339(j) or section 8339(k)(2) of this title, the
increase in annuity payable under subparagraph (A) of this
subsection is reduced by 10 percent and the survivor annuity
payable under section 8341(b) of this title is increased by 55
percent of the increase in annuity payable under such
subparagraph (A), unless, at the time of claiming the increase
payable under such subparagraph (A), the annuitant notifies the
Office of Personnel Management in writing that he does not
desire the survivor annuity to be increased. If the annuitant
dies while still reemployed, the survivor annuity payable is
increased as though the reemployment had otherwise terminated.
If the described employment of the annuitant continues for at
least 5 years, or the equivalent of 5 years in the case of
part-time employment, he may elect, instead of the benefit
provided by subparagraph (A) of this subsection, to deposit in
the Fund (to the extent deposits or deductions have not
otherwise been made) an amount computed under section 8334(c)
of this title covering that employment and have his rights
redetermined under this subchapter. If the annuitant dies while
still reemployed and the described employment had continued for
at least 5 years, or the equivalent of 5 years in the case of
part-time employment, the person entitled to survivor annuity
under section 8341(b) of this title may elect to deposit in the
Fund and have his rights redetermined under this subchapter.
(b) If an annuitant, other than a Member receiving an
annuity from the Fund, whose annuity is based on an involuntary
separation (other than an automatic separation or an
involuntary separation for cause or charges on misconduct or
delinquency) is reemployed in a position in which he is subject
to this subchapter, payment of the annuity terminates on
reemployment.
(c) If an annuitant, other than a Member receiving an
annuity from the Fund, is appointed by the President to a
position in which he is subject to this subchapter, or is
elected as a Member, payment of the annuity terminates on
reemployment. Upon separation from such position, an individual
whose annuity is so terminated is entitled to have his rights
redetermined under this subchapter, except that the amount of
the annuity resulting from such redetermination shall be at
least equal to the amount of the terminated annuity plus any
increases under section 8340 of this title occurring after the
termination and before the commencement of the redetermined
annuity.
(d) If a Member receiving annuity from the Fund becomes
employed in an appointive or elective position, annuity
payments are discontinued during the employment and resumed on
termination of the employment in the amount equal to the sum of
the amount of the annuity the member was receiving immediately
before the commencement of the employment and the amount of the
increases which would have been made in the amount of the
annuity under section 8340 of this title during the period of
the employment if the annuity had been payable during that
period, except that--
(1) the retired Member or Member separated with
title to immediate or deferred annuity, who serves at
any time after separation as a Member in an appointive
position in which he is subject to this subchapter, is
entitled, if he so elects, to have his Member annuity
computed or recomputed as if the service had been
performed before his separation as a Member and the
annuity as so computed or recomputed is effective--
(A) the day Member annuity commences; or
(B) the day after the date of separation
from the appointive position;
whichever is later;
(2) if the retired Member becomes employed after
December 31, 1958, in an appointive position on an
intermittent-service basis--
(A) his annuity continues during the
employment and is not increased as a result of
service performed during that employment;
(B) retirement deductions may not be
withheld from his pay;
(C) an amount equal to the annuity
allocable to the period of actual employment
shall be deducted from his pay, except for
lump-sum leave payment purposes under section
5551 of this title; and
(D) the amounts so deducted shall be
deposited in the Treasury of the United States
to the credit of the Fund;
(3) if the retired Member becomes employed after
December 31, 1958, in an appointive position without
pay on a full-time or substantially full-time basis,
his annuity continues during the employment and is not
increased as a result of service performed during the
employment; and
(4) if the retired Member takes office as Member
and gives notice as provided by section 8331(2) of this
title, his service as Member during that period shall
be credited in determining his right to and the amount
of later annuity.
(e) This section does not apply to an individual appointed
to serve as a Governor of the Board of Governors of the United
States Postal Service.
(f) Notwithstanding the provisions of subsection (a) of
this section, if an annuitant receiving annuity from the Fund,
except a Member receiving annuity from the Fund, becomes
employed as a justice or judge of the United States, as defined
by section 451 of title 28, annuity payments are discontinued
during such employment and are resumed in the same amount upon
resignation or retirement from regular active service as such a
justice or judge.
(g) A former employee or a former Member who becomes
employed as a justice or judge of the United States, as defined
by section 451 of title 28, may, at any time prior to
resignation or retirement from regular active service as such a
justice or judge, apply for and be paid, in accordance with
section 8342(a) of this title, the amount (if any) by which the
lump-sum credit exceeds the total annuity paid, notwithstanding
the time limitation contained in such section for filing an
application for payment.
(h)(1) Subject to paragraph (2) of this subsection,
subsections (a), (b), (c), and (d) of this section shall not
apply to any annuitant receiving an annuity from the Fund while
such annuitant is employed, during any period described in
section 5532(f)(2) of this title (as in effect before the
repeal of that section by section 651(a) of Public Law 106-65)
or any portion thereof, under the administrative authority of
the Administrator, Federal Aviation Administration, or the
Secretary of Defense to perform duties in the operation of the
air traffic control system or to train other individuals to
perform such duties: Provided, however, That the amount such an
annuitant may receive in pay, excluding premium pay, in any pay
period when aggregated with the annuity payable during that
same period shall not exceed the rate payable for level V of
the Executive Schedule.
(2) Paragraph (1) of this subsection shall apply only in
the case of any annuitant receiving an annuity from the Fund
who, before December 31, 1987, applied for retirement or
separated from the service while being entitled to an annuity
under this chapter.
(i)(1) The Director of the Office of Personnel Management
may, at the request of the head of an Executive agency--
(A) waive the application of the preceding
provisions of this section on a case-by-case basis for
employees in positions for which there is exceptional
difficulty in recruiting or retaining a qualified
employee; or
(B) grant authority to the head of such agency to
waive the application of the preceding provisions of
this section, on a case-by-case basis, for an employee
serving on a temporary basis, but only if, and for so
long as, the authority is necessary due to an emergency
involving a direct threat to life or property or other
unusual circumstances.
(2) The Office shall prescribe regulations for the exercise
of any authority under this subsection, including criteria for
any exercise of authority and procedures for terminating a
delegation of authority under paragraph (1)(B).
(j)(1) If warranted by circumstances described in
subsection (i)(1) (A) or (B) (as applicable), the Director of
the Administrative Office of the United States Courts shall,
with respect to an employee in the judicial branch, have the
same waiver authority as would be available to the Director of
the Office of Personnel Management, or a duly authorized agency
head, under subsection (i) with respect to an employee of an
Executive agency.
(2) Authority under this subsection may not be exercised
with respect to a justice or judge of the United States, as
defined in section 451 of title 28.
(k)(1) If warranted by circumstances described in
subsection (i)(1) (A) or (B) (as applicable), an official or
committee designated in paragraph (2) shall, with respect to
the employees specified in the applicable subparagraph of such
paragraph, have the same waiver authority as would be available
to the Director of the Office of Personnel Management, or a
duly authorized agency head, under subsection (i) with respect
to an employee of an Executive agency.
(2) Authority under this subsection may be exercised--
(A) with respect to an employee of an agency in the
legislative branch, by the head of such agency;
(B) with respect to an employee of the House of
Representatives, by the Committee on House Oversight of
the House of Representatives; and
(C) with respect to an employee of the Senate, by
the Committee on Rules and Administration of the
Senate.
(3) Any exercise of authority under this subsection shall
be in conformance with such written policies and procedures as
the agency head, the Committee on House Oversight of the House
of Representatives, or the Committee on Rules and
Administration of the Senate (as applicable) shall prescribe,
consistent with the provisions of this subsection.
(4) For the purpose of this subsection, ``agency in the
legislative branch'', ``employee of the House of
Representatives'', ``employee of the Senate'', and
``congressional employee'' each has the meaning given to it in
section 5531 of this title.
(l)(1) For the purpose of subsections (i) through (k),
``Executive agency'' shall not include the General Accounting
Office.
(2) An employee as to whom a waiver under subsection (i),
(j), or (k) is in effect shall not be considered an employee
for purposes of this chapter or chapter 84 of this title.
Sec. 8345. Payment of benefits; commencement, termination, and waiver
of annuity
(a) Each annuity is stated as an annual amount, one-twelfth
of which, rounded to the next lowest dollar, constitutes the
monthly rate payable on the first business day of the month
after the month or other period for which it has accrued.
(b)(1) \1\ Except as otherwise provided--
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\1\ See also section 305(b) of Public Law 97-253 (September 8,
1982), as amended, which provides:
(b) The amendment made by subsection (a) [5 U.S.C. 8345(b)] shall
apply to annuities which commence on or after October 1, 1982, except
for those individuals who serve three days or less in the month of
retirement.
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(A) an annuity of an employee or Member commences
on the first day of the month after--
(i) separation from the service; or
(ii) pay ceases and the service and age
requirements for title to annuity are met; and
(B) any other annuity payable from the Fund
commences on the first day of the month after the
occurrence of the event on which payment thereof is
based.
(2) The annuity of--
(A) an employee involuntarily separated from
service, except by removal for cause on charges of
misconduct or delinquency; and
(B) an employee or Member retiring under section
8337 of this title due to a disability;
shall commence on the day after separation from the service or
the day after pay ceases and the service and age or disability
requirements for title to annuity are met.
(c) The annuity of a retired employee or Member terminates
on the day death or other terminating event provided by this
subchapter occurs. The annuity of a survivor terminates on the
last day of the month before death or other terminating event
occurs.
(d) An individual entitled to annuity from the Fund may
decline to accept all or any part of the annuity by a waiver
signed and filed with the Office of Personnel Management. The
waiver may be revoked in writing at any time. Payment of the
annuity waived may not be made for the period during which the
waiver was in effect.
(e) Payment due a minor, or an individual mentally
incompetent or under other legal disability, may be made to the
person who is constituted guardian or other fiduciary by the
law of the State of residence of the claimant or is otherwise
legally vested with the care of the claimant or his estate. If
a guardian or other fiduciary of the individual under legal
disability has not been appointed under the law of the State of
residence of the claimant, payment may be made to any person
who, in the judgment of the Office, is responsible for the care
of the claimant, and the payment bars recovery by any other
person.
(f) [Repealed.]
(g) The Office shall prescribe regulations to provide that
the amount of any monthly annuity payable under this section
accruing for any month and which is computed with regard to
service that includes any service referred to in section
8332(b)(6) performed by an individual prior to January 1, 1969,
shall be reduced by the portion of any benefits under any State
retirement system to which such individual is entitled (or on
proper application would be entitled) for such month which is
attributable to such service performed by such individual
before such date.
(h) An individual entitled to an annuity from the Fund may
make allotments or assignments of amounts from his annuity for
such purposes as the Office of Personnel Management in its sole
discretion considers appropriate.
(i)(1) No payment shall be made from the Fund unless an
application for benefits based on the service of an employee or
Member is received in the Office of Personnel Management before
the one hundred and fifteenth anniversary of his birth.
(2) Notwithstanding paragraph (1) of this subsection, after
the death of an employee, Member, or annuitant, no benefit
based on his service shall be paid from the Fund unless an
application therefor is received in the Office of Personnel
Management within 30 years after the death or other event which
gives rise to title to the benefit.
(j)(1) Payments under this subchapter which would otherwise
be made to an employee, Member, or annuitant based on service
of that individual shall be paid (in whole or in part) by the
Office to another person if and to the extent expressly
provided for in the terms of--
(A) any court decree of divorce, annulment, or
legal separation, or the terms of any court order or
court-approved property settlement agreement incident
to any court decree of divorce, annulment, or legal
separation; or
(B) any court order or other similar process in the
nature of garnishment for the enforcement of a judgment
rendered against such employee, Member, or annuitant,
for physically, sexually, or emotionally abusing a
child.
In the event that the Office is served with more than 1 decree,
order, or other legal process with respect to the same moneys
due or payable to any individual, such moneys shall be
available to satisfy such processes on a first-come, first-
served basis, with any such process being satisfied out of such
moneys as remain after the satisfaction of all such processes
which have been previously served.
(2) Paragraph (1) shall only apply to payments made by the
Office under this subchapter after the date of receipt in the
Office of written notice of such decree, order, other legal
process, or agreement, and such additional information and
documentation as the Office may prescribe.
(3) For the purpose of this subsection--
(A) the term ``court'' means any court of any
State, the District of Columbia, the Commonwealth of
Puerto Rico, Guam, the Northern Mariana Islands, or the
Virgin Islands, and any Indian court;
(B) the term ``judgment rendered for physically,
sexually, or emotionally abusing a child'' means any
legal claim perfected through a final enforceable
judgment, which claim is based in whole or in part upon
the physical, sexual, or emotional abuse of a child,
whether or not that abuse is accompanied by other
actionable wrongdoing, such as sexual exploitation or
gross negligence; and
(C) the term ``child'' means an individual under 18
years of age.
(k)(1) The Office shall, in accordance with this
subsection, enter into an agreement with any State within 120
days of a request for agreement from the proper State official.
The agreement shall provide that the Office shall withhold
State income tax in the case of the monthly annuity of any
annuitant who voluntarily requests, in writing, such
withholding. The amounts withheld during any calendar quarter
shall be held in the Fund and disbursed to the States during
the month following that calendar quarter.
(2) An annuitant may have in effect at any time only one
request for withholding under this subsection, and an annuitant
may not have more than two such requests in effect during any
one calendar year.
(3) Subject to paragraph (2) of this subsection, an
annuitant may change the State designated by that annuitant for
purposes of having withholdings made, and may request that the
withholdings be remitted in accordance with such change. An
annuitant also may revoke any request of that annuitant for
withholding. Any change in the State designated or revocation
is effective on the first day of the month after the month in
which the request or the revocation is processed by the Office,
but in no event later than on the first day of the second month
beginning after the day on which such request or revocation is
received by the Office.
(4) This subsection does not give the consent of the United
States to the application of a statute which imposes more
burdensome requirements on the United States than on employers
generally, or which subjects the United States or any annuitant
to a penalty or liability because of this subsection. The
Office may not accept pay from a State for services performed
in withholding State income taxes from annuities. Any amount
erroneously withheld from an annuity and paid to a State by the
Office shall be repaid by the State in accordance with
regulations issued by the Office.
(5) For the purpose of this subsection, ``State'' means a
State, the District of Columbia, or any territory or possession
of the United States.
(l) Transfers of contributions and deposits authorized by
section 408(a)(3) of the Foreign Service Act of 1980 shall be
deemed to be a complete and final payment of benefits under
this chapter.
Sec. 8346. Exemption from legal process; recovery of payments
(a) The money mentioned by this subchapter is not
assignable, either in law or equity, except under the
provisions of subsections (h) and (j) of section 8345 of this
title, or subject to execution, levy, attachment, garnishment,
or other legal process, except as otherwise may be provided by
Federal laws.
(b) Recovery of payments under this subchapter may not be
made from an individual when, in the judgment of the Office of
Personnel Management, the individual is without fault and
recovery would be against equity and good conscience.
Withholding or recovery of money mentioned by this subchapter
on account of a certification or payment made by a former
employee of the United States in the discharge of his official
duties may be made only if the head of the agency on behalf of
which the certification or payment was made certifies to the
Office that the certification or payment involved fraud on the
part of the former employee.
Sec. 8347. Administration; regulations
(a) The Office of Personnel Management shall administer
this subchapter. Except as otherwise specifically provided
herein, the Office shall perform, or cause to be performed,
such acts and prescribe such regulations as are necessary and
proper to carry out this subchapter.
(b) Applications under this subchapter shall be in such
form as the Office prescribes. Agencies shall support the
applications by such certificates as the Office considers
necessary to the determination of the rights of applicants. The
Office shall adjudicate all claims under this subchapter.
(c) The Office shall determine questions of disability and
dependency arising under this subchapter. Except to the extent
provided under subsection (d) of this section, the decisions of
the Office concerning these matters are final and conclusive
and are not subject to review. The Office may direct at any
time such medical or other examinations as it considers
necessary to determine the facts concerning disability or
dependency of an individual receiving or applying for annuity
under this subchapter. The Office may suspend or deny annuity
for failure to submit to examination.
(d)(1) Subject to paragraph (2) of this subsection, an
administrative action or order affecting the rights or
interests of an individual or of the United States under this
subchapter may be appealed to the Merit Systems Protection
Board under procedures prescribed by the Board.
(2) In the case of any individual found by the Office to be
disabled in whole or in part on the basis of the individual's
mental condition, and that finding was made pursuant to an
application by an agency for purposes of disability retirement
under section 8337(a) of this title, the procedures under
section 7701 of this title shall apply and the decision of the
Board shall be subject to judicial review under section 7703 of
this title.
(e) The Office shall fix the fees for examinations made
under this subchapter by physicians or surgeons who are not
medical officers of the United States. The fees and reasonable
traveling and other expenses incurred in connection with the
examinations are paid from appropriations for the cost of
administering this subchapter.
(f) The Office shall select three actuaries, to be known as
the Board of Actuaries of the Civil Service Retirement System.
The Office shall fix the pay of the members of the Board,
except members otherwise in the employ of the United States.
The Board shall report annually on the actuarial status of the
System and furnish its advice and opinion on matters referred
to it by the Office. The Board may recommend to the Office and
to Congress such changes as in the Board's judgment are
necessary to protect the public interest and maintain the
System on a sound financial basis. The Office shall keep, or
cause to be kept, such records as it considers necessary for
making periodic actuarial valuations of the System. The Board
shall make actuarial valuations every 5 years, or oftener if
considered necessary by the Office.
(g) The Office may exclude from the operation of this
subchapter an employee or group of employees in or under an
Executive agency whose employment is temporary or intermittent.
However, the Office may not exclude any employee who occupies a
position on a part-time career employment basis (as defined in
section 3401(2) of this title).
(h) The Office, on recommendation by the Mayor of the
District of Columbia, may exclude from the operation of this
subchapter an individual or group of individuals employed by
the government of the District of Columbia whose employment is
temporary or intermittent.
(i) The Architect of the Capitol may exclude from the
operation of this subchapter an employee under the Office of
the Architect of the Capitol whose employment is temporary or
of uncertain duration.
(j) The Librarian of Congress may exclude from the
operation of this subchapter an employee under the Library of
Congress whose employment is temporary or of uncertain
duration.
(k) The Secretary of Agriculture shall prescribe
regulations to effect the application and operation of this
subchapter to an individual named by section 8331(1)(F) of this
title.
(l) The Director or Acting Director of the Botanic Garden
may exclude from the operation of this subchapter an employee
under the Botanic Garden whose employment is temporary or of
uncertain duration.
(m) Notwithstanding any other provision of law, for the
purpose of ensuring the accuracy of information used in the
administration of this chapter, at the request of the Director
of the Office of Personnel Management--
(1) the Secretary of Defense or the Secretary's
designee shall provide information on retired or
retainer pay provided under title 10;
(2) the Secretary of Veterans Affairs shall provide
information on pensions or compensation provided under
title 38;
(3) the Commissioner of Social Security or the
Secretary's designee shall provide information
contained in the records of the Social Security
Administration; and
(4) the Secretary of Labor or the Secretary's
designee shall provide information on benefits paid
under subchapter I of chapter 81 of this title.
The Director shall request only such information as the
Director determines is necessary. The Director, in consultation
with the officials from whom information is requested, shall
establish, by regulation and otherwise, such safeguards as are
necessary to ensure that information made available under this
subsection is used only for the purpose authorized.
(n)(1) Notwithstanding any other provision of this
subchapter, the Director of Central Intelligence shall, in a
manner consistent with the administration of this subchapter by
the Office, and to the extent considered appropriate by the
Director of Central Intelligence--
(A) determine entitlement to benefits under this
subchapter based on the service of employees of the
Central Intelligence Agency;
(B) maintain records relating to the service of
such employees;
(C) compute benefits under this subchapter based on
the service of such employees;
(D) collect deposits to the Fund made by such
employees, their spouses, and their former spouses;
(E) authorize and direct disbursements from the
Fund to the extent based on service of such employees;
and
(F) perform such other functions under this
subchapter as the Director of Central Intelligence, in
consultation with the Director of the Office of
Personnel Management, determines to be appropriate.
(2) The Director of the Office of Personnel Management
shall furnish such information and, on a reimbursable basis,
such services to the Director of Central Intelligence as the
Director of Central Intelligence requests to carry out
paragraph (1) of this subsection.
(3)(A) The Director of Central Intelligence, in
consultation with the Director of the Office of Personnel
Management, shall by regulation prescribe appropriate
procedures to carry out this subsection.
(B) The regulations shall provide procedures for the
Director of the Office of Personnel Management to inspect and
audit disbursements from the Civil Service Retirement and
Disability Fund under this subchapter.
(C) The Director of Central Intelligence shall submit the
regulations prescribed under subparagraph (A) to the Select
Committee on Intelligence of the Senate and the Permanent
Select Committee on Intelligence of the House of
Representatives before the regulations take effect.
(4)(A) Section 201(c) of the Central Intelligence Agency
Retirement Act shall apply in the administration of this
subchapter to the extent that the provisions of this subchapter
are administered under this subsection.
(B) Notwithstanding subparagraph (A) of this paragraph,
section 8347(d) of this title shall apply with respect to
employees of the Central Intelligence Agency who are subject to
the Civil Service Retirement System.
(o) Any provision of law outside of this subchapter which
provides coverage, service credit, or any other benefit under
this subchapter to any individuals who (based on their being
employed by an entity other than the Government) would not
otherwise be eligible for any such coverage, credit, or
benefit, shall not apply with respect to any individual
appointed, transferred, or otherwise commencing that type of
employment on or after October 1, 1988.
(p) The Director of the Administrative Office of the United
States Courts may exclude from the operation of this subchapter
an employee of the Administrative Office of the United States
Courts, the Federal Judicial Center, or a court named by
section 610 of title 28, whose employment is temporary or of
uncertain duration.
(q)(1) Under regulations prescribed by the Office of
Personnel Management, an employee who--
(A) has not previously made an election under this
subsection or had an opportunity to make an election
under this paragraph;
(B) has 5 or more years of civilian service
creditable under this subchapter; and
(C) moves, without a break in service of more than
1 year, to employment in a nonappropriated fund
instrumentality of the Department of Defense or the
Coast Guard, respectively, described in section
2105(c),
shall be given the opportunity to elect irrevocably, within 30
days after such move, to remain covered as an employee under
this subchapter during any employment described in section
2105(c) after such move.
(2) Under regulations prescribed by the Office of Personnel
Management, an employee of a nonappropriated fund
instrumentality of the Department of Defense or the Coast
Guard, described in section 2105(c), who--
(A) has not previously made an election under this
subsection or had an opportunity to make an election
under this paragraph;
(B) is a vested participant in a retirement system
established for employees described in section 2105(c),
as the term ``vested participant'' is defined by such
system;
(C) moves, without a break in service of more than
1 year, to a position that is not described in section
2105(c); and
(D) is excluded from coverage under chapter 84 by
section 8402(b),
shall be given the opportunity to elect irrevocably, within 30
days after such move, to remain covered, during any subsequent
employment as an employee as defined in section 2105(a) or
section 2105(c), by the retirement system applicable to such
employee's current or most recent employment described in
section 2105(c) rather than be subject to this subchapter.
Sec. 8348. Civil Service Retirement and Disability Fund
(a) There is a Civil Service Retirement and Disability
Fund. The Fund--
(1) is appropriated for the payment of--
(A) benefits as provided by this subchapter
or by the provisions of chapter 84 of this
title which relate to benefits payable out of
the Fund; and
(B) administrative expenses incurred by the
Office of Personnel Management in placing in
effect each annuity adjustment granted under
section 8340 or 8462 of this title, in
administering survivor annuities and elections
providing therefor under sections 8339 and 8341
of this title or subchapters II and IV of
chapter 84 of this title, in administering
alternative forms of annunities under sections
8343a and 8420a (and related provisions of
law), in making an allotment or assignment made
by an individual under section 8345(h) or
8465(b) of this title, and in withholding taxes
pursuant to section 3405 of title 26 or section
8345(k) or 8469 of this title;
(2) is made available, subject to such annual
limitation as the Congress may prescribe, for any
expenses incurred by the Office in connection with the
administration of this chapter, chapter 84 of this
title, and other retirement and annuity statutes; and
(3) is made available, subject to such annual
limitation as the Congress may prescribe, for any
expenses incurred by the Merit Systems Protection Board
in the administration of appeals authorized under
sections 8347(d) and 8461(e) of this title.
(b) The Secretary of the Treasury may accept and credit to
the Fund money received in the form of a donation, gift,
legacy, or bequest, or otherwise contributed for the benefit of
civil-service employees generally.
(c) The Secretary shall immediately invest, in interest-
bearing securities of the United States such currently
available portions of the Fund as are not immediately required
for payments from the Fund. The income derived from these
investments constitutes a part of the Fund.
(d) The purposes for which obligations of the United States
may be issued under chapter 31 of title 31 are extended to
authorize the issuance at par of public-debt obligations for
purchase by the Fund. The obligations issued for purchase by
the Fund shall have maturities fixed with due regard for the
needs of the Fund and bear interest at a rate equal to the
average market yield computed as of the end of the calendar
month next preceding the date of the issue, borne by all
marketable interest-bearing obligations of the United States
then forming a part of the public debt which are not due or
callable until after the expiration of 4 years from the end of
that calendar month. If the average market yield is not a
multiple of \1/8\ of 1 percent, the rate of interest on the
obligations shall be the multiple of \1/8\ of 1 percent nearest
the average market yield.
(e) The Secretary may purchase other interest-bearing
obligations of the United States, or obligations guaranteed as
to both principal and interest by the United States, on
original issue or at the market price only if he determines
that the purchases are in the public interest.
(f) Any statute which authorizes--
(1) new or liberalized benefits payable from the
Fund, including annuity increases other than under
section 8340 of this title;
(2) extension of the coverage of this subchapter to
new groups of employees; or
(3) increases in pay on which benefits are
computed;
is deemed to authorize appropriations to the Fund to finance
the unfunded liability created by that statute, in 30 equal
annual installments with interest computed at the rate used in
the then most recent valuation of the Civil Service Retirement
System and with the first payment thereof due as of the end of
the fiscal year in which each new or liberalized benefit,
extension of coverage, or increase in pay is effective.
(g) At the end of each fiscal year, the Office shall notify
the Secretary of the Treasury of the amount equivalent to (1)
interest on the unfunded liability computed for that year at
the interest rate used in the then most recent valuation of the
System, and (2) that portion of disbursement for annuities for
that year which the Office estimates is attributable to credit
allowed for military service, less an amount determined by the
Office to be appropriate to reflect the value of the deposits
made to the credit of the Fund under section 8334(j) of this
title. Before closing the accounts for each fiscal year, the
Secretary shall credit to the Fund, as a Government
contribution, out of any money in the Treasury of the United
States not otherwise appropriated, the following percentages of
such amounts; 10 percent for 1971; 20 percent for 1972; 30
percent for 1973; 40 percent for 1974; 50 percent for 1975; 60
percent for 1976; 70 percent for 1977; 80 percent for 1978; 90
percent for 1979; and 100 percent for 1980 and for each fiscal
year thereafter.
(h)(1) Notwithstanding any other statute, the United States
Postal Service shall be liable for that portion of any
estimated increase in the unfunded liability of the Fund which
is attributable to any benefits payable from the Fund to active
and retired Postal Service officers and employees, and to their
survivors, when the increase results from an employee-
management agreement under title 39, or any administrative
action by the Postal Service taken pursuant to law, which
authorizes increases in pay on which benefits are computed.
(2) The estimated increase in the unfunded liability,
referred to in paragraph (1) of this subsection, shall be
determined by the Office of Personnel Management. The United
States Postal Service shall pay the amount so determined to the
Office in 30 equal annual installments with interest computed
at the rate used in the most recent valuation of the Civil
Service Retirement System, with the first payment thereof due
at the end of the fiscal year in which an increase in pay
becomes effective.
(i)(1) Notwithstanding any other provision of law, the
Panama Canal Commission shall be liable for that portion of any
estimated increase in the unfunded liability of the fund which
is attributable to any benefits payable from the Fund to or on
behalf of employees and their survivors to the extent
attributable to the amendments made by sections 1241 and 1242,
and the provisions of sections 1231(b) and 1243(a)(1), of the
Panama Canal Act of 1979, and the amendments made by section
3506 of the Panama Canal Commission Authorization Act for
Fiscal Year 1991.
(2) The estimated increase in the unfunded liability
referred to in paragraph (1) of this subsection shall be
determined by the Office of Personnel Management. The Panama
Canal Commission shall pay to the Fund from funds available to
it for that purpose the amount so determined in annual
installments with interest computed at the rate used in the
most recent valuation of the Civil Service Retirement System.
(j)(1) Notwithstanding subsection (c) of this section, the
Secretary of the Treasury may suspend additional investment of
amounts in the Fund if such additional investment could not be
made without causing the public debt of the United States to
exceed the public debt limit.
(2) Any amounts in the Fund which, solely by reason of the
public debt limit, are not invested shall be invested by the
Secretary of the Treasury as soon as such investments can be
made without exceeding the public debt limit.
(3) Upon expiration of the debt issuance suspension period,
the Secretary of the Treasury shall immediately issue to the
Fund obligations under chapter 31 of title 31 that
(notwithstanding subsection (d) of this section) bear such
interest rates and maturity dates as are necessary to ensure
that, after such obligations are issued, the holdings of the
Fund will replicate to the maximum extent practicable the
obligations that would then be held by the Fund if the
suspension of investment under paragraph (1) of this
subsection, and any redemption or disinvestment under
subsection (k) of this section for the purpose described in
such paragraph, during such period had not occurred.
(4) On the first normal interest payment date after the
expiration of any debt issuance suspension period, the
Secretary of the Treasury shall pay to the Fund, from amounts
in the general fund of the Treasury of the United States not
otherwise appropriated, an amount determined by the Secretary
to be equal to the excess of--
(A) the net amount of interest that would have been
earned by the Fund during such debt issuance suspension
period if--
(i) amounts in the Fund that were not
invested during such debt issuance suspension
period solely by reason of the public debt
limit had been invested, and
(ii) redemptions and disinvestments with
respect to the Fund which occurred during such
debt issuance suspension period solely by
reason of the public debt limit had not
occurred, over
(B) the net amount of interest actually earned by
the Fund during such debt issuance suspension period.
(5) For purposes of this subsection and subsections (k) and
(l) of this section--
(A) the term ``public debt limit'' means the
limitation imposed by section 3101(b) of title 31; and
(B) the term ``debt issuance suspension period''
means any period for which the Secretary of the
Treasury determines for purposes of this subsection
that the issuance of obligations of the United States
may not be made without exceeding the public debt
limit.
(k)(1) Subject to paragraph (2) of this subsection, the
Secretary of the Treasury may sell or redeem securities,
obligations, or other invested assets of the Fund before
maturity in order to prevent the public debt of the United
States from exceeding the public debt limit.
(2) The Secretary may sell or redeem securities,
obligations, or other invested assets of the Fund under
paragraph (1) of this subsection only during a debt issuance
suspension period, and only to the extent necessary to obtain
any amount of funds not exceeding the amount equal to the total
amount of the payments authorized to be made from the Fund
under the provisions of this subchapter or chapter 84 of this
title or related provisions of law during such period. A sale
or redemption may be made under this subsection even if, before
the sale or redemption, there is a sufficient amount in the
Fund to ensure that such payments are made in a timely manner.
(l)(1) The Secretary of the Treasury shall report to
Congress on the operation and status of the Fund during each
debt issuance suspension period for which the Secretary is
required to take action under paragraph (3) or (4) of
subsection (j) of this section. The report shall be submitted
as soon as possible after the expiration of such period, but
not later than the date that is 30 days after the first normal
interest payment date occurring after the expiration of such
period.
(2) Whenever the Secretary of the Treasury determines that,
by reason of the public debt limit, the Secretary will be
unable to fully comply with the requirements of subsection (c)
of this section, the Secretary shall immediately notify
Congress of the determination. The notification shall be made
in writing.
(m)(1) Notwithstanding any other provision of law, the
United States Postal Service shall be liable for that portion
of any estimated increase in the unfunded liability of the Fund
which is attributable to any benefits payable from the Fund to
former employees of the Postal Service who first become
annuitants by reason of separation from the Postal Service on
or after July 1, 1971, or to their survivors, or to the
survivors of individuals who die on or after July 1, 1971,
while employed by the Postal Service, when the increase results
from a cost-of-living adjustment under section 8340 of this
title.
(2) The estimated increase in the unfunded liability
referred to in paragraph (1) of this subsection shall be
determined by the Office after consultation with the Postal
Service. The Postal Service shall pay the amount so determined
to the Office in 15 equal annual installments with interest
computed at the rate used in the most recent valuation of the
Civil Service Retirement System, and with the first payment
thereof due at the end of the fiscal year in which the cost-of-
living adjustment with respect to which the payment relates
becomes effective.
(3) In determining any amount for which the Postal Service
is liable under this subsection, the amount of the liability
shall be prorated to reflect only that portion of total service
(used in computing the benefits involved) which is attributable
to civilian service performed after June 30, 1971, as estimated
by the Office.
NOTE:
Section 7101(c)-(d) of the Omnibus Budget Reconciliation Act of
1990 (Public Law 101-508; 5 U.S.C. 8348 note; 104 Stat. 1388-331), as
amended by section 5(a)(1) of Public Law 102-378, 106 Stat. 1358,
provides:
(c) Provision Relating to Pre-1991 COLAs.--(1) For the purpose of
this subsection--
(A) the term ``pre-1991 COLA'' means a cost-of-living
adjustment which took effect in any of the fiscal years
specified in subparagraphs (A)-(N) of paragraph (3);
(B) the term ``post-1990 fiscal year'' means a fiscal year
after fiscal year 1990; and
(C) the term ``pre-1991 fiscal year'' means a fiscal year
before fiscal year 1991.
(2) Notwithstanding any other provision of law, an installment
(equal to an amount determined by reference to paragraph (3)) shall be
payable by the United States Postal Service in a post-1990 fiscal year,
with respect to a pre-1991 COLA, if such fiscal year occurs within the
15-fiscal year period which begins with the first fiscal year in which
that COLA took effect.\1\
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\1\ Probably should read ``7103''.
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(3) Notwithstanding any provision of section 8348(m) of title 5,
United States Code, or any determination thereunder (including any made
under such provision, as in effect before October 1, 1990), the
estimated increase in the unfunded liability referred to in paragraph
(1) of such section 8348(m) shall be payable, in accordance with this
subsection, based on annual installments equal to--
(A) $6,500,000 each, with respect to the cost-of-living
adjustment which took effect in fiscal year 1977;
(B) $7,000,000 each, with respect to the cost-of-living
adjustment which took effect in fiscal year 1978;
(C) $10,400,000 each, with respect to the cost-of-living
adjustment which took effect in fiscal year 1979;
(D) $20,500,000 each, with respect to the cost-of-living
adjustment which took effect in fiscal year 1980;
(E) $26,100,000 each, with respect to the cost-of-living
adjustment which took effect in fiscal year 1981;
(F) $28,100,000 each, with respect to the cost-of-living
adjustment which took effect in fiscal year 1982;
(G) $30,600,000 each, with respect to the cost-of-living
adjustment which took effect in fiscal year 1983;
(H) $5,700,000 each, with respect to the cost-of-living
adjustment which took effect in fiscal year 1984;
(I) $19,400,000 each, with respect to the cost-of-living
adjustment which took effect in fiscal year 1985;
(J) $7,400,000 each, with respect to the cost-of-living
adjustment which took effect in fiscal year 1986;
(K) $8,500,000 each, with respect to the cost-of-living
adjustment which took effect in fiscal year 1987;
(L) $36,800,000 each, with respect to the cost-of-living
adjustment which took effect in fiscal year 1988;
(M) $51,600,000 each, with respect to the cost-of-living
adjustment which took effect in fiscal year 1989; and
(N) $63,500,000 each, with respect to the cost-of-living
adjustment which took effect in fiscal year 1990;
(4) Any installment payable under this subsection shall be paid by
the Postal Service at the same time as when it pays any installments
for which the Postal Service might otherwise be liable in such fiscal
year, with respect to such COLA, under section 8348(m) of title 5,
United States Code.
(d) Effective Date.--This section and the amendments made by this
section shall take effect on October 1, 1990.
Sec. 8349. Offset relating to certain benefits under the Social
Security Act
(a)(1) Notwithstanding any other provision of this
subchapter, if an individual under section 8402(b)(2) is
entitled, or would on proper application be entitled, to old-
age insurance benefits under title II of the Social Security
Act, the annuity otherwise payable to such individual shall be
reduced under this subsection.
(2) A reduction under this subsection commences beginning
with the first month for which the individual both--
(A) is entitled to an annuity under this
subchapter; and
(B) is entitled, or would on proper application be
entitled, to old-age insurance benefits under title II
of the Social Security Act.
(3)(A)(i) Subject to clause (ii) and subparagraphs (B) and
(C), the amount of a reduction under this subsection shall be
equal to the difference between--
(I) the old-age insurance benefit which would be
payable to the individual for the month referred to in
paragraph (2); and
(II) the old-age insurance benefit which would be
so payable, excluding all wages derived from Federal
service of the individual, and assuming the individual
were fully insured (as defined by section 214(a) of the
Social Security Act).
(ii) For purposes of this subsection, the amount of a
benefit referred to in subclause (I) or (II) of clause (i)
shall be determined without regard to subsections (b) through
(l) of section 203 of the Social Security Act, and without
regard to the requirement that an application for such benefit
be filed.
(B) A reduction under this subsection--
(i) may not exceed an amount equal to the product
of--
(I) the old-age insurance benefit to which
the individual is entitled (or would on proper
application be entitled) for the month referred
to in paragraph (2), determined without regard
to subsections (b) through (l) of section 203
of the Social Security Act; and
(II) a fraction, as determined under
section 8421(b)(3) with respect to the
individual, except that the reference to
``service'' in subparagraph (A) of such section
shall be considered to mean Federal service;
and
(ii) may not cause the annuity payment for an
individual to be reduced below zero.
(C) An amount computed under subclause (I) or (II) of
subparagraph (A)(i), or under subparagraph (B)(i)(I), for
purposes of determining the amount of a reduction under this
subsection shall be adjusted under section 8340 of this title.
(4) A reduction under this subsection applies with respect
to the annuity otherwise payable to such individual under this
subchapter (other than under section 8337) for the month
involved--
(A) based on service of such individual; and
(B) without regard to section 8345(j), if otherwise
applicable.
(5) The operation of the preceding paragraphs of this
subsection shall not be considered for purposes of applying the
provisions of the second sentence of section 215(a)(7)(B)(i) or
the provisions of section 215(d)(5)(ii) of the Social Security
Act in determining any amount under subclause (I) or (II) of
paragraph (3)(A)(i) or paragraph (3)(B)(i)(I) for purposes of
this subsection.
(b)(1) Notwithstanding any other provision of this
subchapter--
(A) a disability annuity to which an individual
described in section 8402(b)(2) is entitled under this
subchapter, and
(B) a survivor annuity to which a person is
entitled under this subchapter based on the service of
an individual described in section 8402(b)(2),
shall be subject to reduction under this subsection if that
individual or person is also entitled (or would on proper
application also be entitled) to any similar benefits under
title II of the Social Security Act based on the wages and
self-employment income of such individual described in section
8402(b)(2).
(2)(A) Subject to subparagraph (B), reductions under this
subsection shall be made in a manner consistent with the manner
in which reductions under subsection (a) are computed and
otherwise made.
(B) Reductions under this subsection shall be discontinued
if, or for so long as, entitlement to the similar benefits
under title II of the Social Security Act (as referred to in
paragraph (1)) is terminated (or, in the case of an individual
who has not made proper application therefor, would be
terminated).
(3) For the purpose of applying section 224 of the Social
Security Act to the disability insurance benefit used to
compute the reduction under this subsection, the amount of the
CSRS annuity considered shall be the amount of the CSRS annuity
before application of this section.
(4) The Office shall prescribe regulations to carry out
this subsection.
(c) For the purpose of this section, the term ``Federal
service'' means service which is employment for the purposes of
title II of the Social Security Act and chapter 21 of the
Internal Revenue Code of 1954 by reason of the amendments made
by section 101 of the Social Security Amendments of 1983.
(d) In administering subsections (a) through (c)--
(1) the terms ``an individual under section
8402(b)(2)'' and ``an individual described in section
8402(b)(2)'' shall each be considered to include any
individual--
(A) who is subject to this
subchapter as a result of any provision
of law described in section 8347(o),
and
(B) whose employment (as described
in section 8347(o)) is also employment
for purposes of title II of the Social
Security Act and chapter 21 of the
Internal Revenue Code of 1986; and
(2) the term ``Federal service'', as applied with
respect to any individual to whom this section applies
as a result of paragraph (1), means any employment
referred to in paragraph (1)(B) performed after
December 31, 1983.
Sec. 8350. Retirement counseling
(a) For the purposes of this section, the term ``retirement
counselor'', when used with respect to an agency, means an
employee of the agency who is designated by the head of the
agency to furnish information on benefits under this subchapter
and chapter 84 of this title and counseling services relating
to such benefits to other employees of the agency.
(b) The Director of the Office of Personnel Management
shall establish a training program for all retirement
counselors of agencies of the Federal Government.
(c)(1) The training program established under subsection
(b) of this section shall provide for comprehensive training in
the provisions and administration of this subchapter and
chapter 84 of this title, shall be designed to promote fully
informed retirement decisions by employees and Members under
this subchapter and individuals subject to chapter 84 of this
title, and shall be revised as necessary to assure that the
information furnished to retirement counselors of agencies
under the program is current.
(2) The Director shall conduct a training session under the
training program at least once every 3 months.
(3) Once each year, each retirement counselor of an agency
shall successfully complete a training session conducted under
the training program.
Sec. 8351. Participation in the Thrift Savings Plan
(a)(1) An employee or Member may elect to contribute to the
Thrift Savings Fund established by section 8437 of this title.
(2) An election may be made under paragraph (1) only during
a period provided under section 8432(b) for individuals who are
subject to chapter 84 of this title.
(b)(1) Except as otherwise provided in this subsection, the
provisions of subchapters III and VII of chapter 84 of this
title shall apply with respect to employees and Members making
contributions to the Thrift Savings Fund under subsection (a)
of this section.
(2)(A) An employee or Member may contribute to the Thrift
Savings Fund in any pay period any amount not exceeding the
maximum percentage of such employee's or Member's basic pay for
such pay period allowable under subparagraph (B).
(B) The maximum percentage allowable under this
subparagraph shall be determined in accordance with the
following table:
In the case of a pay period beginning in fiscal year: The maximum
percentage
allowable is:
2001.......................................................... 6
2002.......................................................... 7
2003.......................................................... 8
2004.......................................................... 9
2005.......................................................... 10
2006 or thereafter............................................ 100.
(3) No contributions may be made by an employing agency for
the benefit of an employee or Member under section 8432(c) of
this title.
(4) Section 8433(b) of this title applies to any employee
or Member who elects to make contributions to the Thrift
Savings Fund under subsection (a) of this section and separates
from Government employment.
(5)(A) The provisions of section 8435 of this title that
require a waiver or consent by the spouse of an employee or
Member (or former employee or Member) shall not apply with
respect to sums in the Thrift Savings Fund contributed by the
employee or Member (or former employee or Member) and earnings
in the fund attributable to such sums.
(B) An election or change of election authorized by
subchapter III of chapter 84 of this title shall be effective
in the case of a married employee or Member, and a loan or
withdrawal may be approved under section 8433(g) and (h) of
this title in such case, only after the Executive Director
notifies the employee's or Member's spouse that the election or
change of election has been made or that the Executive Director
has received an application for such loan or withdrawal, as the
case may be.
(C) Subparagraph (B) may be waived with respect to a spouse
if the employee or Member establishes to the satisfaction of
the Executive Director of the Federal Retirement Thrift
Investment Board that the whereabouts of such spouse cannot be
determined.
(D) Except with respect to the making of loans or
withdrawals under section 8433(g) or (h), none of the
provisions of this paragraph requiring notification to a spouse
or former spouse or an employee, Member, former employee, or
former Member shall apply in any case in which the
nonforfeitable account balance of the employee, Member, former
employee, or former Member is $3,500 or less.
(6) Notwithstanding paragraph (4), if an employee or Member
separates from Government employment and such employee's or
Member's nonforfeitable account balance is less than an amount
that the Executive Director prescribes by regulation, the
Executive Director shall pay the nonforfeitable account balance
to the participant in a single payment
(7) For the purpose of this section, the term
``nonforfeitable account balance'' has the same meaning as
under section 8401(32).
(8) \1\ In applying section 8432b to an employee
contributing to the Thrift Savings Fund after being restored to
or reemployed in a position subject to this subchapter,
pursuant to chapter 43 of title 38--
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\1\ For the effective date of the amendment made by clauses (i) and
(ii) of section 661(a)(3)(B) of the National Defense Authorization Act
for Fiscal Year 2000 (Public Law 106-65; 113 Stat. 671) see section 663
set out as a footnote at the end of section 8440e.
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(A) any reference in such section to contributions
under section 8432(a) shall be considered a reference
to employee contributions under this section, except
that the reference in section 8432b(b)(2)(B) to
employee contributions under section 8432(a) shall be
considered a reference to employee contributions under
this subchapter and section 8440e; \1\
(B) the contribution rate under section
8432b(b)(2)(A) shall be the maximum percentage
allowable under subsection (b)(2) of this section; and
(C) subsections (c) and (d) of section 8432b shall
be disregarded.
(9) \1\ For the purpose of this section, separation
from Government employment includes a transfer
described in section 8431.
---------------------------------------------------------------------------
\1\ Indentation so in law.
---------------------------------------------------------------------------
(c) A member of the Foreign Service described in section
103(6) of the Foreign Service Act of 1980 shall be ineligible
to make any election under this section.
(d) A foreign national employee of the Central Intelligence
Agency whose services are performed outside the United States
shall be ineligible to make an election under this section.
(e) The Executive Director of the Federal Retirement Thrift
Investment Board may prescribe regulations to carry out this
section.
CHAPTER 84--FEDERAL EMPLOYEES' RETIREMENT SYSTEM
SUBCHAPTER I--GENERAL PROVISIONS
Sec.
8401. Definitions.
8402. Federal Employees' Retirement System; exclusions.
8403. Relationship to the Social Security Act.
SUBCHAPTER II--BASIC ANNUITY
8410. Eligibility for annuity.
8411. Creditable service.
8412. Immediate retirement.
8413. Deferred retirement.
8414. Early retirement.
8415. Computation of basic annuity.
8416. Survivor reduction for a current spouse.
8417. Survivor reduction for a former spouse.
8418. Survivor elections; deposit; offsets.
8419. Survivor reductions; computation.
8420. Insurable interest reductions.
8420a. Alternative forms of annuities.
8421. Annuity supplement.
8421a. Reductions on account of earnings from work performed while
entitled to an annuity supplement.
8422. Deductions from pay; contributions for military service.
8423. Government contributions.
8424. Lump-sum benefits; designation of beneficiary; order of
precedence.
8425. Mandatory separation.
SUBCHAPTER III--THRIFT SAVINGS PLAN
8431. Certain transfers to be treated as a separation.
8432. Contributions.
8432a. Payment of lost earnings.
8432b. Contributions of persons who perform military service.
8432c. Contributions of certain persons reemployed after service with
international organizations.
8433. Benefits and election of benefits.
8434. Annuities: methods of payment; election; purchase.
8435. Protections for spouses and former spouses.
8436. Administrative provisions.
8437. Thrift Savings Fund.
8438. Investment of Thrift Savings Fund.
8439. Accounting and information.
8440. Tax treatment of the Thrift Savings Fund.
8440a. Justices and judges.
8440b. Bankruptcy judges and magistrates.
8440c. Claims Court judges.
8440d. Judges of the United States Court of Appeals for Veterans
Claims.
8440e. Members of the uniformed services.
8440f. Maximum percentage allowable for certain participants.
SUBCHAPTER IV--SURVIVOR ANNUITIES
8441. Definitions.
8442. Rights of a widow or widower.
8443. Rights of a child.
8444. Rights of a named individual with an insurable interest.
8445. Rights of a former spouse.
SUBCHAPTER V--DISABILITY BENEFITS
8451. Disability retirement.
8452. Computation of disability annuity.
8453. Application.
8454. Medical examination.
8455. Recovery; restoration of earning capacity.
8456. Military reserve technicians.
SUBCHAPTER VI--GENERAL AND ADMINISTRATIVE PROVISIONS
8461. Authority of the Office of Personnel Management.
8462. Cost-of-living adjustments.
8463. Rate of benefits.
8464. Commencement and termination of annuities of employees and
Members.
8464a. Relationship between annuity and workers' compensation.
8465. Waiver, allotment, and assignment of benefits.
8466. Application for benefits.
8467. Court orders.
8468. Annuities and pay on reemployment.
8469. Withholding of State income taxes.
8470. Exemption from legal process; recovery of payments.
SUBCHAPTER VII--FEDERAL RETIREMENT THRIFT INVESTMENT MANAGEMENT SYSTEM
8471. Definitions.
8472. Federal Retirement Thrift Investment Board.
8473. Employee Thrift Advisory Council.
8474. Executive Director.
8475. Investment policies.
8476. Administrative provisions.
8477. Fiduciary responsibilities; liability and penalties.
8478. Bonding.
8478a. Investigative authority.
8479. Exculpatory provisions; insurance.
SUBCHAPTER I--GENERAL PROVISIONS
Sec. 8401. Definitions
For the purpose of this chapter--
(1) the term ``account'' means an account
established and maintained under section 8439(a) of
this title;
(2) the term ``annuitant'' means a former employee
or Member who, on the basis of that individual's
service, meets all requirements for title to an annuity
under subchapter II or V of this chapter and files
claim therefor;
(3) the term ``average pay'' means the largest
annual rate resulting from averaging an employee's or
Member's rates of basic pay in effect over any 3
consecutive years of service or, in the case of an
annuity under this chapter based on service of less
than 3 years, over the total service, with each rate
weighted by the period it was in effect;
(4) the term ``basic pay'' has the meaning given
such term by section 8331(3);
(5) the term ``Board'' means the Federal Retirement
Thrift Investment Board established by section 8472(a)
of this title;
(6) the term ``Civil Service Retirement and
Disability Fund'' or ``Fund'' means the Civil Service
Retirement and Disability Fund under section 8348;
(7) the term ``court'' means any court of any
State, the District of Columbia, the Commonwealth of
Puerto Rico, Guam, the Northern Mariana Islands, or the
Virgin Islands, and any Indian court;
(8) the term ``Director'' means the Director of the
Office of Personnel Management;
(9) the term ``dynamic assumptions'' means economic
assumptions that are used in determining actuarial
costs and liabilities of a retirement system and in
anticipating the effects of long-term future--
(A) investment yields;
(B) increases in rates of basic pay; and
(C) rates of price inflation;
(10) the term ``earnings'', when used with respect
to the Thrift Savings Fund, means the amount of the
gain realized or yield received from the investment of
sums in such Fund;
(11) the term ``employee'' means--
(A) an individual referred to in
subparagraph (A), (E), (F), (H), (I), (J), or
(K) of section 8331(1) of this title;
(B) a Congressional employee as defined in
section 2107 of this title, including a
temporary Congressional employee and an
employee of the Congressional Budget Office;
and
(C) an employee described in section
2105(c) who has made an election under section
8461(n)(1) to remain covered under this
chapter;
whose civilian service after December 31, 1983, is
employment for the purposes of title II of the Social
Security Act and chapter 21 of the Internal Revenue
Code of 1986, except that such term does not include--
(i) any individual referred to in--
(I) clause (i), (vi), or (ix) of
paragraph (1) of section 8331;
(II) clause (ii) of such paragraph;
or
(III) the undesignated material
after the last clause of such
paragraph;
(ii) any individual excluded under section
8402(c) of this title;
(iii) a member of the Foreign Service
described in section 103(6) of the Foreign
Service Act of 1980; or
(iv) an employee who has made an election
under section 8461(n)(2) to remain covered by a
retirement system established for employees
described in section 2105(c);
(12) the term ``former spouse'' means a former
spouse of an individual--
(A) if such individual performed at least
18 months of civilian service creditable under
section 8411 as an employee or Member; and
(B) if the former spouse was married to
such individual for at least 9 months;
(13) the term ``Executive Director'' means the
Executive Director appointed under section 8474(a);
(14) the term ``firefighter'' means--
(A) an employee, the duties of whose
position--
(i) are primarily to perform work
directly connected with the control and
extinguishment of fires; and
(ii) are sufficiently rigorous that
employment opportunities should be
limited to young and physically
vigorous individuals, as determined by
the Director considering the
recommendations of the employing
agency; and
(B) an employee who is transferred directly
to a supervisory or administrative position
after performing duties described in
subparagraph (A) for at least 3 years;
(15) the term ``Government'' means the Federal
Government, Gallaudet College, and, in the case of an
employee described in paragraph (11)(C), a
nonappropriated fund instrumentality of the Department
of Defense or the Coast Guard described in section
2105(c);
(16) the term ``Indian court'' has the meaning
given such term by section 8331(24);
(17) the term ``law enforcement officer'' means--
(A) an employee, the duties of whose
position--
(i) are primarily--
(I) the investigation,
apprehension, or detention of
individuals suspected or
convicted of offenses against
the criminal laws of the United
States, or
(II) the protection of
officials of the United States
against threats to personal
safety; and
(ii) are sufficiently rigorous that
employment opportunities should be
limited to young and physically
vigorous individuals, as determined by
the Director considering the
recommendations of the employing
agency;
(B) an employee of the Department of the
Interior or the Department of the Treasury
(excluding any employee under subparagraph (A))
who occupies a position that, but for the
enactment of the Federal Employees' Retirement
System Act of 1986, would be subject to the
District of Columbia Police and Firefighters'
Retirement System, as determined by the
Secretary of the Interior or the Secretary of
the Treasury, as appropriate;
(C) an employee who is transferred directly
to a supervisory or administrative position
after performing duties described in
subparagraph (A) and (B) for at least 3 years;
and
(D) an employee--
(i) of the Bureau of Prisons or
Federal Prison Industries,
Incorporated;
(ii) of the Public Health Service
assigned to the field service of the
Bureau of Prisons or of the Federal
Prison Industries, Incorporated; or
(iii) in the field service at Army
or Navy disciplinary barracks or at any
other confinement and rehabilitation
facility operated by any of the armed
forces;
whose duties in connection with individuals in
detention suspected or convicted of offenses
against the criminal laws of the United States
or of the District of Columbia or offenses
against the punitive articles of the Uniform
Code of Military Justice (chapter 47 of title
10) require frequent direct contact with these
individuals in their detention and are
sufficiently rigorous that employment
opportunities should be limited to young and
physically vigorous individuals, as determined
by the head of the employing agency;
(18) the term ``loss'', as used with respect to the
Thrift Savings Fund, includes the amount of any loss
resulting from the investment of sums in such Fund, or
from the breach of any responsibility, duty, or
obligation under section 8477.
(19) the term ``lump-sum credit'' means the
unrefunded amount consisting of--
(A) retirement deductions made from the
basic pay of an employee or Member under
section 8422(a) of this title (or under section
204 of the Federal Employees' Retirement
Contribution Temporary Adjustment Act of 1983);
(B) amounts deposited by an employee or
Member under section 8422(e);
(C) amounts deposited by an employee,
Member, or survivor under section 8411(f); and
(D) interest on the deductions and deposits
which, for any calendar year, shall be equal to
the overall average yield to the Fund during
the preceding fiscal year from all obligations
purchased by the Secretary of the Treasury
during such fiscal year under section 8348 (c),
(d), and (e), as determined by the Secretary
(compounded annually);
but does not include interest--
(i) if the service covered thereby
aggregates 1 year or less; or
(ii) for a fractional part of a month in
the total service;
(20) the term ``Member'' has the same meaning as
provided in section 2106, except that such term does
not include an individual who irrevocably elects, by
written notice to the official by whom such individual
is paid, not to participate in the Federal Employees'
Retirement System;
(21) the term ``net earnings'' means the excess of
earnings over losses;
(22) the term ``net losses'' means the excess of
losses over earnings;
(23) \1\ the term ``normal-cost percentage'' means
the entry-age normal cost of the provisions of the
System which relate to the Fund, computed by the Office
in accordance with generally accepted actuarial
practice and standards (using dynamic assumptions) and
expressed as a level percentage of aggregate basic pay;
---------------------------------------------------------------------------
\1\ See also section 307 of Public Law 99-335 (June 6, 1986) which
provides:
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SEC. 307. USE OF ``NORMAL-COST PERCENTAGE''.
---------------------------------------------------------------------------
Notwithstanding any other provision of law, the normal-cost
percentage (as defined by section 8401(23) of title 5, United States
Code, as added by this Act) of the Federal Employees' Retirement System
shall be used to value the cost of the System for all purposes in which
the cost of the System is required to be determined by the Federal
Government, including any comparisons between the cost of performing
commercial activities under contract with commercial sources and the
cost of performing those activities using Government facilities and
personnel.
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(24) the term ``Office'' means the Office of
Personnel Management;
(25) the term ``price index'' has the same meaning
as provided in section 8331(15);
(26) the term ``service'' means service which is
creditable under section 8411;
(27) the term ``supplemental liability'' means the
estimated excess of--
(A) the actuarial present value of all
future benefits payable from the Fund under
this chapter based on the service of current or
former employees or Members, over
(B) the sum of--
(i) the actuarial present value of
deductions to be withheld from the
future basic pay of employees and
Members currently subject to this
chapter pursuant to section 8422;
(ii) the actuarial present value of
the future contributions to be made
pursuant to section 8423(a) with
respect to employees and Members
currently subject to this chapter;
(iii) the Fund balance as of the
date the supplemental liability is
determined, to the extent that such
balance is attributable--
(I) to the System, or
(II) to contributions made
under the Federal Employees'
Retirement Contribution
Temporary Adjustment Act of
1983 by or on behalf of an
individual who became subject
to the System; and
(iv) any other appropriate amount,
as determined by the Office in
accordance with generally accepted
actuarial practices and principles;
(28) the term ``survivor'' means an individual
entitled to an annuity under subchapter IV of this
chapter;
(29) the term ``System'' means the Federal
Employees' Retirement System described in section
8402(a);
(30) the term ``military technician (dual status)''
means an employee described in section 10216 of title
10;
(31) the term ``military service'' means honorable
active service--
(A) in the armed forces;
(B) in the commissioned corps of the Public
Health Service after June 30, 1960; or
(C) in the commissioned corps of the
National Oceanic and Atmospheric
Administration, or a predecessor entity in
function, after June 30, 1961;
but does not include service in the National Guard
except when ordered to active duty in the service of
the United States or full-time National Guard duty (as
such term is defined in section 101(d) of title 10) if
such service interrupts creditable civilian service
under this subchapter and is followed by reemployment
in accordance with chapter 43 of title 38 that occurs
on or after August 1, 1990;
(32) the term ``nonforfeitable account balance''
means any amounts in an account, established and
maintained under subchapter III, which are
nonforfeitable (as determined under section 8432(g));
(33) ``Nuclear materials courier'' has the meaning
given that term in section 8331(27); and
(34) the term ``Government physician'' has the
meaning given such term under section 5948.
Sec. 8402. Federal Employees' Retirement System; exclusions
(a) The provisions of this chapter comprise the Federal
Employees' Retirement System.
(b) The provisions of this chapter shall not apply with
respect to--
(1) any individual who has performed service of a
type described in subparagraph (C), (D), (E), or (F) of
section 210(a)(5) of the Social Security Act
continuously since December 31, 1983 (determined in
accordance with the provisions of section 210(a)(5)(B)
of the Social Security Act, relating to continuity of
employment); or
(2)(A) any employee or Member who has separated
from the service after--
(i) having been subject to--
(I) subchapter III of chapter 83 of
this title;
(II) subchapter I of chapter 8 of
title I of the Foreign Service Act of
1980; or
(III) the benefit structure for
employees of the Board of Governors of
the Federal Reserve System appointed
before January 1, 1984, that is a
component of the Retirement Plan for
Employees of the Federal Reserve
System, established under section 10 of
the Federal Reserve Act; and
(ii) having completed--
(I) at least 5 years of civilian
service creditable under subchapter III
of chapter 83 of this title;
(II) at least 5 years of civilian
service creditable under subchapter I
of chapter 8 of title I of the Foreign
Service Act of 1980; or
(III) at least 5 years of civilian
service (other than any service
performed in the employ of a Federal
Reserve Bank) creditable under the
benefit structure for employees of the
Board of Governors of the Federal
Reserve System appointed before January
1, 1984, that is a component of the
Retirement Plan for Employees of the
Federal Reserve System, established
under section 10 of the Federal Reserve
Act,
determined without regard to any deposit or
redeposit requirement under either such
subchapter or under such benefit structure, or
any requirement that the individual become
subject to either such subchapter or to such
benefit structure after performing the service
involved; or
(B) any employee having at least 5 years of
civilian service performed before January 1, 1987,
creditable under subchapter III of chapter 83 of this
title (determined without regard to any deposit or
redeposit requirement under such subchapter, any
requirement that the individual become subject to such
subchapter after performing the service involved, or
any requirement that the individual give notice in
writing to the official by whom such individual is paid
of such individual's desire to become subject to such
subchapter);
except to the extent provided for under subsection (d) of this
section or title III of the Federal Employees' Retirement
System Act of 1986 pursuant to an election under such title to
become subject to this chapter.
(c)(1) The Office may exclude from the operation of this
chapter an employee or group of employees in or under an
Executive agency, the United States Postal Service, or the
Postal Rate Commission, whose employment is temporary or
intermittent, except an employee whose employment is part-time
career employment (as defined in section 3401(2)).
(2) The Architect of the Capitol may exclude from the
operation of this chapter an employee under the Office of the
Architect of the Capitol whose employment is temporary or of
uncertain duration.
(3) The Librarian of Congress may exclude from the
operation of this chapter an employee under the Library of
Congress whose employment is temporary or of uncertain
duration.
(4) The Director or Acting Director of the Botanic Garden
may exclude from the operation of this chapter an employee
under the Botanic Garden whose employment is temporary or of
uncertain duration.
(5) The Chief Administrative Officer of the House of
Representatives and the Secretary of the Senate each may
exclude from the operation of this chapter a Congressional
employee--
(A) whose employment is temporary or intermittent;
and
(B) who is paid by such Chief Administrative
Officer or Secretary, as the case may be.
(6) The Director of the Office of Technology Assessment may
exclude from the operation of this chapter an employee under
the Office of Technology Assessment whose employment is
temporary or intermittent.
(7) The Director of the Congressional Budget Office may
exclude from the operation of this chapter an employee under
the Congressional Budget Office whose employment is temporary
or intermittent.
(8) The Director of the Administrative Office of the United
States Courts may exclude from the operation of this chapter an
employee of the Administrative Office of the United States
Courts, the Federal Judicial Center, or a court named by
section 610 of title 28, whose employment is temporary or of
uncertain duration.
(9) The Joint Committee on Judicial Administration in the
District of Columbia may exclude from the operation of this
chapter an employee of the District of Columbia Courts whose
employment is temporary or of uncertain duration.
(d) Paragraph (2) of subsection (b) shall not apply to an
individual who--
(1) becomes subject to--
(A) subchapter II of chapter 8 of title I
of the Foreign Service Act of 1980 (relating to
the Foreign Service Pension System) pursuant to
an election; or
(B) the benefit structure in which
employees of the Board of Governors of the
Federal Reserve System appointed on or after
January 1, 1984, participate, which benefit
structure is a component of the Retirement Plan
for Employees of the Federal Reserve System,
established under section 10 of the Federal
Reserve Act (and any redesignated or successor
version of such benefit structure, if so
identified in writing by the Board of Governors
of the Federal Reserve System for purposes of
this chapter); and
(2) subsequently enters a position in which, but
for paragraph (2) of subsection (b), such individual
would be subject to this chapter.
(e) A bankruptcy judge or magistrate who is covered by
section 377 of title 28 or section 2(c) of the Retirement and
Survivors' Annuities for Bankruptcy Judges and Magistrates Act
of 1988 shall be excluded from the operation of this chapter,
other than subchapters III and VII of such chapter, if the
judge or magistrate notifies the Director of the Administrative
Office of the United States Courts of an election of a
retirement annuity under those provisions. Upon such election,
the judge or magistrate shall be entitled to a lump-sum credit
under section 8424 of this title.
(f) A judge who is covered by section 4096 of title 38
shall be excluded from the operation of this chapter if the
judge notifies the Director of the Office of Personnel
Management of an election of a retirement annuity under that
section. Upon such election, the judge shall be entitled to a
lump-sum credit under section 8424 of this title.
(g) A judge of the United States Claims Court who is
covered by section 178 of title 28 shall be excluded from the
operation of this chapter, other than subchapters III and VII
of such chapter, if the judge notifies the Director of the
Administrative Office of the United States Courts of an
election of a retirement annuity under those provisions. Upon
such election, the judge shall be entitled to a lump-sum credit
under section 8424 of this title.
Sec. 8403. Relationship to the Social Security Act
Except as otherwise provided in this chapter, the benefits
payable under the System are in addition to the benefits
payable under the Social Security Act.
SUBCHAPTER II--BASIC ANNUITY
Sec. 8410. Eligibility for annuity
Notwithstanding any other provision of this chapter, an
employee or Member must complete at least 5 years of civilian
service creditable under section 8411 in order to be eligible
for an annuity under this subchapter.
Sec. 8411. Creditable service
(a)(1) The total service of an employee or Member is the
full years and twelfth parts thereof, excluding from the
aggregate the fractional part of a month, if any.
(2) Credit may not be allowed for a period of separation
from the service in excess of 3 calendar days.
(b) For the purpose of this chapter, creditable service of
an employee or Member includes--
(1) employment as an employee, and any service as a
Member (including the period from the date of the
beginning of the term for which elected or appointed to
the date of taking office as a Member), after December
31, 1986;
(2) except as provided in subsection (f), service
with respect to which deductions and withholdings under
section 204(a)(1) of the Federal Employees' Retirement
Contribution Temporary Adjustment Act of 1983 have been
made;
(3) except as provided in subsection (f) or (h),
any civilian service (performed before January 1, 1989,
other than any service under paragraph (1) or (2))
which, but for the amendments made by subsections
(a)(4) and (b) of section 202 of the Federal Employees'
Retirement System Act of 1986, would be creditable
under subchapter III of chapter 83 of this title
(determined without regard to any deposit or redeposit
requirement under such subchapter, any requirement that
the individual become subject to such subchapter after
performing the service involved, or any requirement
that the individual give notice in writing to the
official by whom such individual is paid of such
individual's desire to become subject to such
subchapter);
(4) a period of service (other than any service
under any other paragraphs of this subsection and other
than any military service) that was creditable under
the Foreign Service Pension System described in
subchapter II of chapter 8 of the Foreign Service Act
of 1980, if the employee or Member waives credit for
such service under the Foreign Service Pension System
and makes a payment to the Fund equal to the amount
that would have been deducted from pay under section
8422(a) had the employee been subject to this chapter
during such period of service (together with interest
on such amount computed under paragraphs (2) and (3) of
section 8334(e)); and
(5) a period of service (other than any service
under any other paragraph of this subsection, any
military service, and any service performed in the
employ of a Federal Reserve Bank) that was creditable
under the Bank Plan (as defined in subsection (i)), if
the employee waives credit for such service under the
Bank Plan and makes a payment to the Fund equal to the
amount that would have been deducted from pay under
section 8422(a) had the employee been subject to this
chapter during such period of service (together with
interest on such amount computed under paragraphs (2)
and (3) of section 8334(e)).
Paragraph (5) shall not apply in the case of any employee as to
whom subsection (g) (or, to the extent subchapter III of
chapter 83 is involved, section 8332(n)) otherwise applies.
(c)(1) Except as provided in paragraphs (2), (3), and (5),
an employee or Member shall be allowed credit for--
(A) each period of military service performed
before January 1, 1957; and
(B) each period of military service performed after
December 31, 1956, and before the separation on which
title to annuity is based, if a deposit (including
interest, if any) is made with respect to such period
in accordance with section 8422(e).
(2) If an employee or Member is awarded retired pay based
on any period of military service, the service of the employee
or Member may not include credit for such period of military
service unless the retired pay is awarded--
(A) based on a service-connected disability--
(i) incurred in combat with an enemy of the
United States; or
(ii) caused by an instrumentality of war
and incurred in line of duty during a period of
war as defined by section 301 of title 38; or
(B) under chapter 1223 of title 10 (or under
chapter 67 of that title as in effect before the
effective date of the Reserve Officer Personnel
Management Act).
(3) An employee or Member who has made a deposit under
section 8334(j) (or a similar prior provision of law) with
respect to a period of military service, and who has not taken
a refund of such deposit--
(A) shall be allowed credit for such service
without regard to the deposit requirement under
paragraph (1)(B); and
(B) shall be entitled, upon filing appropriate
application therefor with the Office, to a refund equal
to the difference between--
(i) the amount deposited with respect to
such period under such section 8334(j) (or
prior provision), excluding interest; and
(ii) the amount which would otherwise have
been required with respect to such period under
paragraph (1)(B).
(4)(A) Notwithstanding paragraph (2), for purposes of
computing a survivor annuity for a survivor of an employee or
Member--
(i) who was awarded retired pay based on any period
of military service, and
(ii) whose death occurs before separation from the
service,
creditable service of the deceased employee or Member shall
include each period of military service includable under
subparagraph (A) or (B) of paragraph (1) or under paragraph
(3). In carrying out this subparagraph, any amount deposited
under section 8422(e)(5) shall be taken into account.
(B) A survivor annuity computed based on an amount which,
under authority of subparagraph (A), takes into consideration
any period of military service shall be reduced by the amount
of any survivor's benefits--
(i) payable to a survivor (other than a child)
under a retirement system for members of the uniformed
services;
(ii) if, or to the extent that, such benefits are
based on such period of military service.
(C) The Office of Personnel Management shall prescribe
regulations to carry out this paragraph, including regulations
under which--
(i) a survivor may elect not to be covered by this
paragraph; and
(ii) this paragraph shall be carried out in any
case which involves a former spouse.
(5) If, after January 1, 1997, an employee or Member waives
retired pay that is subject to a court order for which there
has been effective service on the Secretary concerned for
purposes of section 1408 of title 10, the military service on
which the retired pay is based may be credited as service for
purposes of this chapter only if the employee or Member
authorizes the Director to deduct and withhold from the annuity
payable to the employee or Member under this subchapter an
amount equal to the amount that, if the annuity payment was
instead a payment of the employee's or Member's retired pay,
would have been deducted and withheld and paid to the former
spouse covered by the court order under such section 1408. The
amount deducted and withheld under this paragraph shall be paid
to that former spouse. The period of civil service employment
by the employee or Member shall not be taken into consideration
in determining the amount of the deductions and withholding or
the amount of the payment to the former spouse. The Director of
the Office of Personnel Management shall prescribe regulations
to carry out this paragraph.
(d) Credit under this chapter shall be allowed for leaves
of absence without pay granted an employee while performing
military service, or while receiving benefits under subchapter
I of chapter 81. An employee or former employee who returns to
duty after a period of separation is deemed, for the purpose of
this subsection, to have been on leave of absence without pay
for that part of the period in which that individual was
receiving benefits under subchapter I of chapter 81. Credit may
not be allowed for so much of other leaves of absence without
pay as exceeds 6 months in the aggregate in a calendar year.
(e) Credit shall be allowed for periods of approved leave
without pay granted an employee to serve as a full-time officer
or employee of an organization composed primarily of employees
(as defined by section 8331(1) or 8401(11)), subject to the
employee arranging to pay, through the employee's employing
agency, within 60 days after commencement of such leave without
pay, amounts equal to the retirement deductions and agency
contributions which would be applicable under sections 8422(a)
and 8423(a), respectively, if the employee were in pay status.
If the election and all payments provided by this subsection
are not made, the employee may not receive credit for the
periods of leave without pay, notwithstanding the third
sentence of subsection (d).
(f)(1) An employee or Member who has received a refund of
retirement deductions under subchapter III of chapter 83 with
respect to any service described in subsection (b)(2) or (b)(3)
may not be allowed credit for such service under this chapter
unless such employee or Member deposits an amount equal to 1.3
percent of basic pay for such service, with interest. A deposit
under this paragraph may be made only with respect to a refund
received pursuant to an application filed with the Office
before the date on which the employee or Member first becomes
subject to this chapter.
(2) An employee or Member may not be allowed credit under
this chapter for any service described in subsection (b)(3) for
which retirement deductions under subchapter III of chapter 83
have not been made, unless such employee or Member deposits an
amount equal to 1.3 percent of basic pay for such service, with
interest.
(3) Interest under paragraph (1) or (2) shall be computed
in accordance with paragraphs (2) and (3) of section 8334(e)
and regulations prescribed by the Office.
(4) For the purpose of survivor annuities, deposits
authorized by the preceding provisions of this subsection may
also be made by a survivor of an employee or Member.
(g) Any employee who--
(1) served in a position in which the employee was
excluded from coverage under this subchapter because
the employee was covered under a retirement system
established under section 10 of the Federal Reserve
Act; and
(2) transferred without a break in service to a
position to which the employee was appointed by the
President, with the advice and consent of the Senate,
and in which position the employee is subject to this
subchapter,
shall be treated for all purposes of this subchapter as if any
service that would have been creditable under the retirement
system established under section 10 of the Federal Reserve Act
was service performed while subject to this subchapter if any
employee and employer deductions, contributions or rights with
respect to the employee's service are transferred from such
retirement system to the Fund.
(h) An employee or Member shall be allowed credit for
service as a volunteer or volunteer leader under part A of
title VIII of the Economic Opportunity Act of 1964, as a full-
time volunteer enrolled in a program of at least 1 year's
duration under part A, B, or C of title I of the Domestic
Volunteer Service Act of 1973, or as a volunteer or volunteer
leader under the Peace Corps Act performed at any time prior to
the separation on which the entitlement to any annuity under
this subchapter is based if the employee or Member has made a
deposit with interest, if any, with respect to such service
under section 8422(f).
(i) For purposes of subsection (b)(5), the term ``Bank
Plan'' means the benefit structure in which employees of the
Board of Governors of the Federal Reserve System appointed on
or after January 1, 1984, participate, which benefit structure
is a component of the Retirement Plan for Employees of the
Federal Reserve System, established under section 10 of the
Federal Reserve Act (and any redesignated or successor version
of such benefit structure, if so identified in writing by the
Board of Governors of the Federal Reserve System for purposes
of this chapter).
(i)(1) \1\ Upon application to the Office of Personnel
Management, any individual who was an employee on the date of
enactment of this paragraph, and who has on such date or
thereafter acquired 5 years or more of creditable civilian
service under this section (exclusive of service for which
credit is allowed under this subsection) shall be allowed
credit (as service as a congressional employee) for service
before December 31, 1990, while employed by the Democratic
Senatorial Campaign Committee, the Republican Senatorial
Campaign Committee, the Democratic National Congressional
Committee, or the Republican National Congressional Committee,
if--
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\1\ So in law. See section 202(a)(2) of the Federal Reserve Board
Retirement Portability Act (Public Law 106-168) and section 901(a)(2)
of the Miscellaneous Appropriations Act, 2001 (114 Stat. 2763A-196), as
enacted into law by section 1(a)(4) of Public Law 106-554.
---------------------------------------------------------------------------
(A) such employee has at least 4 years and 6 months
of service on such committees as of December 31, 1990;
and
(B) such employee deposits to the Fund an amount
equal to 1.3 percent of the base pay for such service,
with interest.
(2) The Office shall accept the certification of the
President of the Senate (or the President's designee) or the
Speaker of the House of Representatives (or the Speaker's
designee), as the case may be, concerning the service of, and
the amount of compensation received by, an employee with
respect to whom credit is to be sought under this subsection.
(3) An individual shall not be granted credit for such
service under this subsection if eligible for credit under
section 8332(m) for such service.
Sec. 8412. Immediate retirement
(a) An employee or Member who is separated from the service
after attaining the applicable minimum retirement age under
subsection (h) and completing 30 years of service is entitled
to an annuity.
(b) An employee or Member who is separated from the service
after becoming 60 years of age and completing 20 years of
service is entitled to an annuity.
(c) An employee or Member who is separated from the service
after becoming 62 years of age and completing 5 years of
service is entitled to an annuity.
(d) An employee who is separated from the service, except
by removal for cause on charges of misconduct or delinquency--
(1) after completing 25 years of service as a law
enforcement officer, member of the Capitol Police or
Supreme Court Police, firefighter, or nuclear materials
courier, or any combination of such service totaling at
least 25 years, or
(2) after becoming 50 years of age and completing
20 years of service as a law enforcement officer,
member of the Capitol Police or Supreme Court Police,
firefighter, or nuclear materials courier, or any
combination of such service totaling at least 20 years,
is entitled to an annuity.
(e) An employee who is separated from the service, except
by removal for cause on charges of misconduct or delinquency--
(1) after completing 25 years of service as an air
traffic controller, or
(2) after becoming 50 years of age and completing
20 years of service as an air traffic controller,
is entitled to an annuity.
(f) A Member who is separated from the service, except by
resignation or expulsion--
(1) after completing 25 years of service, or
(2) after becoming 50 years of age and completing
20 years of service,
is entitled to an annuity.
(g)(1) An employee or Member who is separated from the
service after attaining the applicable minimum retirement age
under subsection (h) and completing 10 years of service is
entitled to an annuity. This subsection shall not apply to an
employee or Member who is entitled to an annuity under any
other provision of this section.
(2) An employee or Member entitled to an annuity under this
subsection may defer the commencement of such annuity by
written election. The date to which the commencement of the
annuity is deferred may not precede the 31st day after the date
of filing the election, and must precede the date on which the
employee or Member becomes 62 years of age.
(3) The Office shall prescribe regulations under which an
election under paragraph (2) shall be made.
(h)(1) The applicable minimum retirement age under this
subsection is--
(A) for an individual whose date of birth is before
January 1, 1948, 55 years of age;
(B) for an individual whose date of birth is after
December 31, 1947, and before January 1, 1953, 55 years
of age plus the number of months in the age increase
factor determined under paragraph (2)(A);
(C) for an individual whose date of birth is after
December 31, 1952, and before January 1, 1965, 56 years
of age;
(D) for an individual whose date of birth is after
December 31, 1964, and before January 1, 1970, 56 years
of age plus the number of months in the age increase
factor determined under paragraph (2)(B); and
(E) for an individual whose date of birth is after
December 31, 1969, 57 years of age.
(2)(A) For an individual whose date of birth occurs during
the 5-year period consisting of calendar years 1948 through
1952, the age increase factor shall be equal to two-twelfths
times the number of months in the period beginning with January
1948 and ending with December of the year in which the date of
birth occurs.
(B) For an individual whose date of birth occurs during the
5-year period consisting of calendar years 1965 through 1969,
the age increase factor shall be equal to two-twelfths times
the number of months in the period beginning with January 1965
and ending with December of the year in which the date of birth
occurs.
Sec. 8413. Deferred retirement
(a) An employee or Member who is separated from the
service, or transferred to a position in which the employee or
Member does not continue subject to this chapter, after
completing 5 years of service is entitled to an annuity
beginning at the age of 62 years.
(b)(1) An employee or Member who is separated from the
service, or transferred to a position in which the employee or
Member does not continue subject to this chapter, after
completing 10 years of service but before attaining the
applicable minimum retirement age under section 8412(h) is
entitled to an annuity beginning on the date designated by the
employee or Member in a written election under this subsection.
The date designated under this subsection may not precede the
date on which the employee or Member attains such minimum
retirement age and must precede the date on which the employee
or Member becomes 62 years of age.
(2) The election of an annuity under this subsection shall
not be effective unless--
(A) it is made at such time and in such manner as
the Office shall by regulation prescribe; and
(B) the employee or Member will not otherwise be
eligible to receive an annuity within 31 days after
filing the election.
(3) The election of an annuity under this subsection
extinguishes the right of the employee or Member to receive any
other annuity based on the service on which the annuity under
this subsection is based.
Sec. 8414. Early retirement
(a)(1) A member of the Senior Executive Service who is
removed from the Senior Executive Service for failure to be
recertified as a senior executive under section 3393a or for
less than fully successful executive performance (as determined
under subchapter II of chapter 43 of this title) after
completing 25 years of service, or after becoming 50 years of
age and completing 20 years of service, is entitled to an
annuity.
(2) A member of the Defense Intelligence Senior Executive
Service or the Senior Cryptologic Executive Service who is
removed from such service for failure to be recertified as a
senior executive or for less than fully successful executive
performance after completing 25 years of service, or after
becoming 50 years of age and completing 20 years of service, is
entitled to an annuity.
(3) A member of the Federal Bureau of Investigation and
Drug Enforcement Administration Senior Executive Service who is
removed from such service for failure to be recertified as a
senior executive or for less than fully successful executive
performance after completing 25 years of service or after
becoming 50 years of age and completing 20 years of service is
entitled to an annuity.
(b)(1) Except as provided in paragraphs (2) and (3), an
employee who--
(A) is separated from the service involuntarily,
except by removal for cause on charges of misconduct or
delinquency; or
(B) <SUP>1,2</SUP> except in the case of an
employee who is separated from the service under a
program carried out under subsection (d), while serving
in a geographic area designated by the Director, is
separated from the service voluntarily during a period
in which (as determined by the Director)--
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\1\ Section 7001(b) of the 1998 Supplemental Appropriations and
Rescissions Act (Public Law 105-174; 112 Stat. 91), as amended by
Public Law 106-58, title VI, Sec. 651(a), September 29, 1999, 113 Stat.
480, provides as follows:
(b) Federal Employees' Retirement System.--Effective May 1, 1998,
subparagraph (B) of section 8414(b)(1) of title 5, United States Code,
shall be applied as if it had been amended to read as follows:
---------------------------------------------------------------------------
``(B)(i) has been employed continuously, by the agency in
which the employee is serving, for at least the 31-day period
ending on the date on which such agency requests the
determination referred to in clause (iv);
``(ii) is serving under an appointment that is not time
limited;
``(iii) has not been duly notified that such employee is to
be involuntarily separated for misconduct or unacceptable
performance;
``(iv) is separated from the service voluntarily during a
period in which, as determined by the Office of Personnel
Management (upon request of the agency) under regulations
prescribed by the Office--
``(I) such agency (or, if applicable, the component
in which the employee is serving) is undergoing a major
reorganization, a major reduction in force, or a major
transfer of function; and
``(II) a significant percentage of the employees
serving in such agency (or component) will be separated
or subject to an immediate reduction in the rate of
basic pay (without regard to subchapter VI of chapter
53, or comparable provisions); and
``(v) as determined by the agency under regulations
prescribed by the Office, is within the scope of the
offer of voluntary early retirement, which may be made
on the basis of--
``(I) one or more organizational units;
``(II) one or more occupational series or levels;
``(III) one or more geographical locations;
``(IV) other similar nonpersonal factors the Office
determines appropriate; or
``(V) any appropriate combination of such factors;''.
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\2\ Section 1(b) of the Act entitled ``To make certain personnel
flexibilities available with respect to the General Accounting Office,
and for other purposes'' (Public Law 106-303; 114 Stat. 1063), enacted
October 13, 2000, provides as follows:
(b) Federal Employees' Retirement System.--Effective for purposes
of the period beginning on the date of the enactment of this Act and
ending on December 31, 2003, subparagraph (B) of section 8414(b)(1) of
title 5, United States Code, shall, with respect to officers and
employees of the General Accounting Office, be applied as if it had
been amended to read as follows:
---------------------------------------------------------------------------
``(B)(i) has been employed continuously by the General
Accounting Office for at least the 31-day period immediately
preceding the start of the period referred to in clause (iv);
``(ii) is serving under an appointment that is not time
limited;
``(iii) has not received a notice of involuntary separation,
for misconduct or unacceptable performance, with respect to
which final action remains pending; and
``(iv) is separated from the service voluntarily during a
period with respect to which the Comptroller General determines
that the application of this subsection is necessary and
appropriate for the purpose of--
``(I) realigning the General Accounting Office's
workforce in order to meet budgetary constraints or
mission needs;
``(II) correcting skill imbalances; or
``(III) reducing high-grade, managerial, or
supervisory positions;''.
(i) the agency in which the employee is
serving is undergoing a major reorganization, a
major reduction in force, or a major transfer
of function; and
(ii) a significant percentage of the total
number of employees serving in such agency will
be separated or subject to an immediate
reduction in the rate of basic pay (without
regard to subchapter VI of chapter 53 of this
title or comparable provisions);
after completing 25 years of service, or after becoming 50
years of age and completing 20 years of service, is entitled to
an annuity.
(2) An employee under paragraph (1) who is separated as
described in subparagraph (A) of such paragraph is not entitled
to an annuity under this subsection if the employee has
declined a reasonable offer of another position in the
employee's agency for which the employee is qualified, and the
offered position is not lower than 2 grades (or pay levels)
below the employee's grade (or pay level) and is within the
employee's commuting area.
(3) Paragraph (1) shall not apply to an employee entitled
to an annuity under subsection (d) or (e) of section 8412.
(c)(1) An employee who was hired as a military reserve
technician on or before February 10, 1996 (under the provisions
of this title in effect before that date), and who is separated
from technician service, after becoming 50 years of age and
completing 25 years of service, by reason of being separated
from the Selected Reserve of the employee's reserve component
or ceasing to hold the military grade specified by the
Secretary concerned for the position held by the employee is
entitled to an annuity.
(2) An employee who is initially hired as a military
technician (dual status) after February 10, 1996, and who is
separated from the Selected Reserve or ceases to hold the
military grade specified by the Secretary concerned for the
position held by the technician--
(A) after completing 25 years of service as a
military technician (dual status), or
(B) after becoming 50 years of age and completing
20 years of service as a military technician (dual
status),
is entitled to an annuity.
(d)(1) The Secretary of Defense may, during fiscal years
2002 and 2003, carry out a program under which an employee of
the Department of Defense may be separated from the service
entitled to an immediate annuity under this subchapter if the
employee--
(A) has--
(i) completed 25 years of service; or
(ii) become 50 years of age and completed
20 years of service; and
(B) is eligible for the annuity under paragraph (2)
or (3).
(2)(A) For the purposes of paragraph (1), an employee
referred to in that paragraph is eligible for an immediate
annuity under this paragraph if the employee--
(i) is separated from the service involuntarily
other than for cause; and
(ii) has not declined a reasonable offer of another
position in the Department of Defense for which the
employee is qualified, which is not lower than 2 grades
(or pay levels) below the employee's grade (or pay
level), and which is within the employee's commuting
area.
(B) For the purposes of paragraph (2)(A)(i), a separation
for failure to accept a directed reassignment to a position
outside the commuting area of the employee concerned or to
accompany a position outside of such area pursuant to a
transfer of function may not be considered to be a removal for
cause.
(3) For the purposes of paragraph (1), an employee referred
to in that paragraph is eligible for an immediate annuity under
this paragraph if the employee satisfies all of the following
conditions:
(A) The employee is separated from the service
voluntarily during a period in which the organization
within the Department of Defense in which the employee
is serving is undergoing a major organizational
adjustment.
(B) The employee has been employed continuously by
the Department of Defense for more than 30 days before
the date on which the head of the employee's
organization requests the determinations required under
subparagraph (A).
(C) The employee is serving under an appointment
that is not limited by time.
(D) The employee is not in receipt of a decision
notice of involuntary separation for misconduct or
unacceptable performance.
(E) The employee is within the scope of an offer of
voluntary early retirement, as defined on the basis of
one or more of the following objective criteria:
(i) One or more organizational units.
(ii) One or more occupational groups,
series, or levels.
(iii) One or more geographical locations.
(iv) Any other similar objective and
nonpersonal criteria that the Office of
Personnel Management determines appropriate.
(4) Under regulations prescribed by the Office of Personnel
Management, the determinations of whether an employee meets--
(A) the requirements of subparagraph (A) of
paragraph (3) shall be made by the Office upon the
request of the Secretary of Defense; and
(B) the requirements of subparagraph (E) of such
paragraph shall be made by the Secretary of Defense.
(5) A determination of which employees are within the scope
of an offer of early retirement shall be made only on the basis
of consistent and well-documented application of the relevant
criteria.
(6) In this subsection, the term ``major organizational
adjustment'' means any of the following:
(A) A major reorganization.
(B) A major reduction in force.
(C) A major transfer of function.
(D) A workforce restructuring--
(i) to meet mission needs;
(ii) to achieve one or more reductions in
strength;
(iii) to correct skill imbalances; or
(iv) to reduce the number of high-grade,
managerial, supervisory, or similar positions.
Sec. 8415. Computation of basic annuity
(a) Except as otherwise provided in this section, the
annuity of an employee retiring under this subchapter is 1
percent of that individual's average pay multiplied by such
individual's total service.
(b) The annuity of a Member, or former Member with title to
a Member annuity, retiring under this subchapter is computed
under subsection (a), except that if the individual has had at
least 5 years of service as a Member or Congressional employee,
or any combination thereof, so much of the annuity as is
computed with respect to either such type of service (or a
combination thereof), not exceeding a total of 20 years, shall
be computed by multiplying 1\7/10\ percent of the individual's
average pay by the years of such service.
(c) The annuity of a Congressional employee, or former
Congressional employee, retiring under this subchapter is
computed under subsection (a), except that if the individual
has had at least 5 years of service as a Congressional employee
or Member, or any combination thereof, so much of the annuity
as is computed with respect to either such type of service (or
a combination thereof), not exceeding a total of 20 years,
shall be computed by multiplying 1\7/10\ percent of the
individual's average pay by the years of such service.
(d) The annuity of an employee retiring under subsection
(d) or (e) of section 8412 or under subsection (a), (b), or (c)
of section 8425 is--
(1) 1\7/10\ percent of that individual's average
pay multiplied by so much of such individual's total
service as does not exceed 20 years; plus
(2) 1 percent of that individual's average pay
multiplied by so much of such individual's total
service as exceeds 20 years.
(e)(1) In computing an annuity under this subchapter for an
employee whose service includes service performed on a part-
time basis--
(A) the average pay of the employee, to the extent
that it includes pay for service performed in any
position on a part-time basis, shall be determined by
using the annual rate of basic pay that would be
payable for full-time service in the position; and
(B) the benefit so computed shall then be
multiplied by a fraction equal to the ratio which the
employee's actual service, as determined by prorating
the employee's total service to reflect the service
that was performed on a part-time basis, bears to the
total service that would be creditable for the employee
if all of the service had been performed on a full-time
basis.
(2) For the purpose of this subsection, employment on a
part-time basis shall not be considered to include employment
on a temporary or intermittent basis.
(f)(1) The annuity of an employee or Member retiring under
section 8412(g) or 8413(b) is computed in accordance with
applicable provisions of this section, except that the annuity
shall be reduced by five-twelfths of 1 percent for each full
month by which the commencement date of the annuity precedes
the sixty-second anniversary of the birth of the employee or
Member.
(2)(A) Paragraph (1) does not apply in the case of an
employee or Member retiring under section 8412(g) or 8413(b) if
the employee or Member would satisfy the age and service
requirements for title to an annuity under section 8412 (a),
(b), (d)(2), (e)(2), or (f)(2), determined as if the employee
or Member had, as of the date of separation, attained the age
specified in subparagraph (B).
(B) A determination under subparagraph (A) shall be based
on how old the employee or Member will be as of the date on
which the annuity under section 8412(g) or 8413(b) is to
commence.
(g)(1) In applying subsection (a) with respect to an
employee under paragraph (2), the percentage applied under such
subsection shall be 1.1 percent, rather than 1 percent.
(2) This subsection applies in the case of an employee
who--
(A) retires entitled to an annuity under section
8412; and
(B) at the time of the separation on which
entitlement to the annuity is based, is at least 62
years of age and has completed at least 20 years of
service;
but does not apply in the case of a Congressional employee,
military technician (dual status), law enforcement officer,
member of the Supreme Court Police, firefighter, nuclear
materials courier, or air traffic controller.
(h) The annuity of a Member who has served in a position in
the executive branch for which the rate of basic pay was
reduced for the duration of the service of the Member in that
position to remove the impediment to the appointment of the
Member imposed by article I, section 6, clause 2 of the
Constitution, shall, subject to a deposit in the Fund as
provided under section 8422(g), be computed as though the rate
of basic pay which would otherwise have been in effect during
that period of service had been in effect.
(i)(1) For purposes of this subsection, the term
``physicians comparability allowance'' refers to an amount
described in section 8331(3)(H).
(2) Except as otherwise provided in this subsection, no
part of a physicians comparability allowance shall be treated
as basic pay for purposes of any computation under this section
unless, before the date of the separation on which entitlement
to annuity is based, the separating individual has completed at
least 15 years of service as a Government physician (whether
performed before, on, or after the date of the enactment of
this subsection).
(3) If the condition under paragraph (2) is met, then, any
amounts received by the individual in the form of a physicians
comparability allowance shall (for the purposes referred to in
paragraph (2)) be treated as basic pay, but only to the extent
that such amounts are attributable to service performed on or
after the date of the enactment of this subsection, and only to
the extent of the percentage allowable, which shall be
determined as follows:
If the total amount of service
performed, on or after the date of Then, the percentage
the enactment of this subsection, allowable is:
as a Government physician is:
Less than 2 years......................................... 0
At least 2 but less than 4 years.......................... 25
At least 4 but less than 6 years.......................... 50
At least 6 but less than 8 years.......................... 75
At least 8 years.......................................... 100.
(4) Notwithstanding any other provision of this subsection,
100 percent of all amounts received as a physicians
comparability allowance shall, to the extent attributable to
service performed on or after the date of the enactment of this
subsection, be treated as basic pay (without regard to any of
the preceding provisions of this subsection) for purposes of
computing--
(A) an annuity under section 8452; and
(B) a survivor annuity under subchapter IV, if
based on the service of an individual who dies before
separating from service.
Sec. 8416. Survivor reduction for a current spouse
(a)(1) If an employee or Member is married at the time of
retiring under this chapter, the reduction described in section
8419(a) shall be made unless the employee or Member and the
spouse jointly waive, by written election, any right which the
spouse may have to a survivor annuity under section 8442 based
on the service of such employee or Member. A waiver under this
paragraph shall be filed with the Office under procedures
prescribed by the Office.
(2) Notwithstanding paragraph (1), an employee or Member
who is married at the time of retiring under this chapter may
waive the annuity for a surviving spouse without the spouse's
consent if the employee or Member establishes to the
satisfaction of the Office (in accordance with regulations
prescribed by the Office)--
(A) that the spouse's whereabouts cannot be
determined; or
(B) that, due to exceptional circumstances,
requiring the employee or Member to seek the spouse's
consent would otherwise be inappropriate.
(3) Except as provided in subsection (d), a waiver made
under this subsection shall be irrevocable.
(b)(1) Upon remarriage, a retired employee or Member who
was married at the time of retirement (including an employee or
Member whose annuity was not reduced to provide a survivor
annuity for the employee's or Member's spouse or former spouse
as of the time of retirement) may irrevocably elect during such
marriage, in a signed writing received by the Office within 2
years after such remarriage or, if later, within 2 years after
the death or remarriage of any former spouse of such employee
or Member who was entitled to a survivor annuity under section
8445 (or of the last such surviving former spouse, if there was
more than one), a reduction in the employee's or Member's
annuity under section 8419(a) for the purpose of providing an
annuity for such employee's or Member's spouse in the event
such spouse survives the employee or Member.
(2) The election and reduction shall be effective the first
day of the second month after the election is received by the
Office, but not less than 9 months after the date of the
remarriage.
(3) An election to provide a survivor annuity to an
individual under this subsection--
(A) shall prospectively void any election made by
the employee or Member under section 8420 with respect
to such individual; or
(B) shall, if an election was made by the employee
or Member under section 8420 with respect to a
different individual, prospectively void such election
if appropriate written application is made by such
employee or Member at the time of making the election
under this subsection.
(4) Any election under this subsection made by an employee
or Member on behalf of an individual after the retirement of
such employee or Member shall not be effective if--
(A) the employee or Member was married to such
individual at the time of retirement; and
(B) the annuity rights of such individual based on
the service of such employee or Member were then waived
under subsection (a).
(c)(1) An employee or Member who is unmarried at the time
of retiring under this chapter and who later marries may
irrevocably elect, in a signed writing received by the Office
within 2 years after such employee or Member marries or, if
later, within 2 years after the death or remarriage of any
former spouse of such employee or Member who was entitled to a
survivor annuity under section 8445 (or of the last such
surviving former spouse, if there was more than one), a
reduction in the current annuity of the retired employee or
Member, in accordance with section 8419(a).
(2) The election and reduction shall take effect the first
day of the first month beginning 9 months after the date of
marriage. Any such election to provide a survivor annuity for
an individual--
(A) shall prospectively void any election made by
the employee or Member under section 8420 with respect
to such individual; or
(B) shall, if an election was made by the employee
or Member under section 8420 with respect to a
different individual, prospectively void such election
if appropriate written application is made by such
employee or Member at the time of making the election
under this subsection.
(d)(1) An employee or Member--
(A) who is married on the date of retiring under
this chapter, and
(B) with respect to whose spouse a waiver under
subsection (a) has been made,
may, during the 18-month period beginning on such date, elect
to have a reduction made under section 8419 in order to provide
a survivor annuity under section 8442 for such spouse.
(2)(A) An election under this subsection shall not be
effective unless the amount described in subparagraph (B) is
deposited into the Fund before the expiration of the 18-month
period referred to in paragraph (1).
(B) The amount to be deposited under this subparagraph is
equal to the sum of--
(i) the difference (for the period between the date
on which the annuity of the former employee or Member
commences and the date on which reductions pursuant to
the election under this subsection commence) between
the amount paid to the former employee or Member from
the Fund under this chapter and the amount which would
have been paid if such election had been made at the
time of retirement; and
(ii) the costs associated with providing for the
election under this subsection.
The amount to be deposited under clause (i) shall include
interest, computed at the rate of 6 percent a year.
(3) An annuity which is reduced pursuant to an election by
a former employee or Member under this subsection shall be
reduced by the same percentage as was in effect under section
8419 as of the date of the employee's or Member's retirement.
(4) Rights and obligations under this chapter resulting
from an election under this subsection shall be the same as the
rights and obligations which would have resulted had the
election been made at the time of retirement.
(5) The Office shall inform each employee and Member who is
eligible to make an election under this subsection of the right
to make such election and the procedures and deadlines
applicable in making any such election.
Sec. 8417. Survivor reduction for a former spouse
(a) If an employee or Member has a former spouse who is
entitled to a survivor annuity as provided in section 8445, the
reduction described in section 8419(a) shall be made.
(b)(1) An employee or Member who has a former spouse may
elect, under procedures prescribed by the Office, a reduction
in the annuity of the employee or Member under section 8419(a)
in order to provide a survivor annuity for such former spouse
under section 8445.
(2) An election under this subsection shall be made at the
time of retirement or, if the marriage is dissolved after the
date of retirement, within 2 years after the date on which the
marriage of the former spouse to the employee or Member is so
dissolved.
(3) An election under this subsection--
(A) shall not be effective to the extent that it--
(i) conflicts with--
(I) any court order or decree
referred to in section 8445(a) which
was issued before the date of such
election; or
(II) any agreement referred to in
such section 8445(a) which was entered
into before such date; or
(ii) would cause the total of survivor
annuities payable under sections 8442 and 8445,
respectively, based on the service of the
employee or Member to exceed the amount which
would be payable to a widow or widower of such
employee or Member under such section 8442
(determined without regard to any reduction to
provide for an annuity under such section
8445); and
(B) shall not be effective, in the case of an
employee or Member who is then married, unless it is
made with the spouse's written consent.
The Office shall by regulation provide that subparagraph (B)
may be waived for either of the reasons set forth in section
8416(a)(2).
Sec. 8418. Survivor elections; deposit; offsets
(a)(1) An individual who makes an election under subsection
(b) or (c) of section 8416 or section 8417(b) which is required
to be made within 2 years after the date of a prescribed event
shall deposit into the Fund an amount determined by the Office
(as nearly as may be administratively feasible) to reflect the
amount by which the annuity of such individual would have been
reduced if the election had been in effect since the date of
retirement (or, if later, and in the case of an election under
such section 8416(b), since the date the previous reduction in
the annuity of such individual was terminated under paragraph
(1) or (2) of section 8419(b)), plus interest.
(2) Interest under paragraph (1) shall be computed at the
rate of 6 percent a year.
(b) The Office shall, by regulation, provide for payment of
the deposit required under subsection (a) by a reduction in the
annuity of the employee or Member. The reduction shall, to the
extent practicable, be designed so that the present value of
the future reduction is actuarially equivalent to the deposit
required under subsection (a), except that the total reductions
in the annuity of an employee or Member to pay deposits
required by this section shall not exceed 25 percent of the
annuity computed under section 8415 or section 8452, including
adjustments under section 8462. The reduction required by this
subsection, which shall be effective at the same time as the
election under section 8416 (b) and (c) or section 8417(b),
shall be permanent and unaffected by any future termination of
the marriage or the entitlement of the former spouse. Such
reduction shall be independent of and in addition to the
reduction required under section 8416 (b) and (c) or section
8417(b).
(c) Subsections (a) and (b) shall not apply if--
(1) the employee or Member makes an election under
section 8416 (b) or (c) after having made an election
under section 8420; and
(2) the election under such section 8420 becomes
void under subsection (b)(3) or (c)(2) of such section
8416.
(d) The Office shall prescribe regulations under which the
survivor of an employee or Member may make a deposit under this
section.
Sec. 8419. Survivor reductions; computation
(a)(1) Except as provided in paragraph (2), the annuity of
an annuitant computed under section 8415, or under section 8452
(including subsection (a)(2) of such section, if applicable) or
one-half of the annuity, if jointly designated for this purpose
by the employee or Member and the spouse of the employee or
Member under procedures prescribed by the Office of Personnel
Management, shall be reduced by 10 percent if a survivor
annuity, or a combination of survivor annuities, under section
8442 or 8445 (or both) are to be provided for.
(2)(A) If no survivor annuity under section 8442 is to be
provided for, but one or more survivor annuities under section
8445 involving a total of less than the entirety of the amount
referred to in subsection (b)(2) of such section are to be
provided for, the annuity of the annuitant involved (as
computed under section 8415, or under section 8452 (including
subsection (a)(2) of such section, if applicable)) or one-half
of the annuity, if jointly designated for this purpose by the
employee or Member and the spouse of the employee or Member
under procedures prescribed by the Office of Personnel
Management, shall be reduced by an appropriate percentage
determined under subparagraph (B).
(B) The Office shall prescribe regulations under which an
appropriate reduction under this paragraph, not to exceed a
total of 10 percent, shall be made.
(b)(1) Any reduction in an annuity for the purpose of
providing a survivor annuity for the current spouse of a
retired employee or Member shall be terminated for each full
month--
(A) after the death of the spouse; or
(B) after the dissolution of the spouse's marriage
to the employee or Member, except that an appropriate
reduction shall be made thereafter if the spouse is
entitled, as a former spouse, to a survivor annuity
under section 8445.
(2) Any reduction in an annuity for the purpose of
providing a survivor annuity for a former spouse of a retired
employee or Member shall be terminated for each full month
after the former spouse remarries before reaching age 55 or
dies. This reduction shall be replaced by appropriate
reductions under subsection (a) if the retired employee or
Member has one or more of the following:
(A) another former spouse who is entitled to a
survivor annuity under section 8445;
(B) a current spouse to whom the employee or Member
was married at the time of retirement and with respect
to whom a survivor annuity was not waived under section
8416(a) (or, if waived, with respect to whom an
election under section 8416(d) has been made); or
(C) a current spouse whom the employee or Member
married after retirement and with respect to whom an
election has been made under subsection (b) or (c) of
section 8416.
Sec. 8420. Insurable interest reductions
(a)(1) At the time of retiring under section 8412, 8413, or
8414, an employee or Member who is found to be in good health
by the Office may elect to have such employee's or Member's
annuity (as computed under section 8415) reduced under
paragraph (2) in order to provide an annuity under section 8444
for an individual having an insurable interest in the employee
or Member. Such individual shall be designated by the employee
or Member in writing.
(2) The annuity of the employee or Member making the
election is reduced by 10 percent, and by 5 percent for each
full 5 years the individual named is younger than the retiring
employee or Member, except that the total reduction may not
exceed 40 percent.
(3) An annuity which is reduced under this subsection
shall, effective the first day of the month following the death
of the individual named under this subsection, be recomputed
and paid as if the annuity had not been so reduced.
(b)(1) In the case of a married employee or Member, an
election under this section on behalf of the spouse may be made
only if any right of such spouse to a survivor annuity based on
the service of such employee or Member is waived in accordance
with section 8416(a).
(2) Paragraph (1) does not apply in the case of an employee
or Member if such employee or Member has a former spouse who
would become entitled to an annuity under section 8445 as a
survivor of such employee or Member.
Sec. 8420a. Alternative forms of annuities
(a) The Office shall prescribe regulations under any
employee or Member who has a life-threatening affliction or
other critical medical condition may, at the time of retiring
under this subchapter, elect annuity benefits under this
section instead of any other benefits under this subchapter,
and any benefits under subchapter IV of this chapter, based on
the service of the employee or Member.
(b) Subject to subsection (c), the Office shall by
regulation provide for such alternative forms of annuities as
the Office considers appropriate, except that among the
alternatives offered shall be--
(1) an alternative which provides for--
(A) payment of the lump-sum credit
(excluding interest) to the employee or Member;
and
(B) payment of an annuity to the employee
or Member for life; and
(2) in the case of an employee or Member who is
married at the time of retirement, an alternative which
provides for--
(A) payment of the lump-sum credit
(excluding interest) to the employee or Member;
and
(B) payment of an annuity to the employee
or Member for life, with a survivor annuity
payable for the life of a surviving spouse.
(c) Each alternative provided for under subsection (b)
shall, to the extent practicable, be designed such that the
present value of the benefits provided under such alternative
(including any lump-sum credit) is actuarially equivalent to
the sum of--
(1) the present value of the annuity which would
otherwise be provided under this subchapter, as
computed under section 8415; and
(2) the present value of the annuity supplement
which would otherwise be provided (if any) under
section 8421.
(d) An employee or Member who, at the time of retiring
under this subchapter--
(1) is married, shall be ineligible to make an
election under this section unless a waiver is made
under section 8416(a); or
(2) has a former spouse, shall be ineligible to
make an election under this section if the former
spouse is entitled to benefits under section 8445 or
8467 (based on the service of the employee or Member)
under the terms of a decree of divorce or annulment, or
a court order or court-approved property settlement
incident to any such decree, with respect to which the
Office has been duly notified.
(e) An employee or Member who is married at the time of
retiring under this subchapter and who makes an election under
this section may, during the 18-month period beginning on the
date of retirement, make the election provided for under
section 8416(d), subject to the deposit requirement thereunder.
Sec. 8421. Annuity supplement
(a)(1) Subject to paragraph (3), an individual shall, if
and while entitled to an annuity under subsection (a), (b),
(d), or (e) of section 8412, or under section 8414(c), also be
entitled to an annuity supplement under this section.
(2) Subject to paragraph (3), an individual shall, if and
while entitled to an annuity under section 8412(f), or under
subsection (a) or (b) of section 8414, also be entitled to an
annuity supplement under this section if such individual is at
least the applicable minimum retirement age under section
8412(h), except that an individual entitled to an annuity under
section 8414(a) for failure to be recertified as a senior
executive shall be entitled to an annuity supplement without
regard to such applicable minimum retirement age.
(3)(A) An individual whose entitlement to an annuity under
section 8412 or 8414 does not commence before age 62 is not
entitled to an annuity supplement under this section.
(B) An individual entitled to an annuity supplement under
this section ceases to be so entitled after the last day of the
month preceding the first month for which such individual
would, on proper application, be entitled to old-age insurance
benefits under title II of the Social Security Act, but not
later than the last day of the month in which such individual
attains age 62.
(b)(1) The amount of the annuity supplement of an annuitant
under this section for any month shall be equal to the product
of--
(A) an amount determined under paragraph (2),
multiplied by
(B) a fraction, as described in paragraph (3).
(2) The amount under this paragraph for an annuitant is an
amount equal to the old-age insurance benefit which would be
payable to such annuitant under title II of the Social Security
Act (without regard to sections 203, 215(a)(7), and 215(d)(5)
of such Act) upon attaining age 62 and filing application
therefor, determined as if the annuitant had attained such age
and filed application therefor, and were a fully insured
individual (as defined in section 214(a) of such Act), on
January 1 of the year in which such annuitant's entitlement to
any payment under this section commences, except that the
reduction of such old-age insurance benefit under section
202(q) of such Act shall be the maximum applicable for an
individual born in the same year as the annuitant. In computing
the primary insurance amount under section 215 of such Act for
purposes of this paragraph, the number of elapsed years
(referred to in section 215(b)(2)(B)(iii) of such Act and used
to compute the number of benefit computation years) shall not
include years beginning with the year in which such annuitant's
entitlement to any payment under this section commences, and--
(A) only basic pay for service performed (if any)
shall be taken into account in computing the total
wages and self-employment income of the annuitant for a
benefit computation year;
(B) for a benefit computation year which commences
after the date of the separation with respect to which
entitlement to the annuitant's annuity under this
subchapter is based and before the date as of which
such annuitant is treated, under the preceding
sentence, to have attained age 62, the total wages and
self-employment income of such annuitant for such year
shall be deemed to be zero; and
(C) for a benefit computation year after age 21
which precedes the separation referred to in
subparagraph (B), and during which the individual did
not perform a full year of service, the total wages and
self-employment income of such annuitant for such year
shall be deemed to have been an amount equal to the
product of--
(i) the average total wages of all workers
for that year, multiplied by
(ii) a fraction--
(I) the numerator of which is the
total basic pay of the individual for
service performed in the first year
thereafter in which such individual
performed a full year of service; and
(II) the denominator of which is
the average total wages of all workers
for the year referred to in subclause
(I).
(3) The fraction under this paragraph for any annuitant is
a fraction--
(A) the numerator of which is the annuitant's total
years of service (rounding a fraction to the nearest
whole number, with \1/2\ being rounded to the next
higher number), not to exceed the number under
subparagraph (B); and
(B) the denominator of which is 40.
(4) For the purpose of this subsection--
(A) the term ``benefit computation year'' has the
meaning provided in section 215(b)(2)(B)(i) of the
Social Security Act;
(B) the term ``average total wages of all
workers'', for a year, means the average of the total
wages, as defined and computed under section
215(b)(3)(A)(ii)(I) of the Social Security Act for such
year; and
(C) the term ``service'' does not include military
service.
(c) An amount under this section shall, for purposes of
section 8467, be treated in the same way as an amount computed
under section 8415.
Sec. 8421a. Reductions on account of earnings from work performed while
entitled to an annuity supplement
(a) The amount of the annuity supplement to which an
individual is entitled under section 8421 for any month
(determined without regard to subsection (c) of such section)
shall be reduced by the amount of any excess earnings of such
individual which are required to be charged to such supplement
for such month, as determined under subsection (b).
(b) The amount of an individual's excess earnings shall be
charged to months as follows:
(1)(A) There shall be charged to each month of a
year under subsection (a) an amount equal to the
individual's excess earnings (as determined under
paragraph (2) with respect to such year), divided by
the number of the individual's supplement entitlement
months for such year (as determined under paragraph
(3)).
(B) Notwithstanding subparagraph (A), the amount
charged to a month under subsection (a) may not exceed
the amount of the annuity supplement to which the
individual is entitled under section 8421 for such
month (determined without regard to subsection (c) of
such section).
(2) The excess earnings based on which reductions
under subsection (a) shall be made with respect to an
individual in a year--
(A) shall be equal to 50 percent of so much
of such individual's earnings for the
immediately preceding year as exceeds the
applicable exempt amount for such preceding
year; but
(B) may not exceed the total amount of the
annuity supplement payments to which such
individual was entitled for such preceding year
under section 8421 (determined without regard
to subsection (c) of such section, and without
regard to this section).
(3)(A) Subject to subparagraph (B), the number of
an individual's supplement entitlement months for a
year shall be 12.
(B) The number determined under subparagraph (A)
shall be reduced so as not to include any month after
which such individual ceases to be entitled to an
annuity supplement by reason of section 8421(a)(3)(B),
relating to cessation of entitlement upon attaining age
62.
(4)(A) For purposes of this section, and except as
provided in subparagraph (B), the ``earnings'' and the
``applicable exempt amount'' of an individual shall be
determined in a manner consistent with applicable
provisions of section 203 of the Social Security Act.
(B) For purposes of this section--
(i) in determining the excess earnings of
any individual, only earnings attributable to
periods during which such individual was
entitled to an annuity supplement under section
8421 shall be considered; and
(ii) any earnings attributable to a period
before attaining the applicable retirement age
under section 8412(h) shall not be considered
in determining the excess earnings of an
individual who retires under section 8412 (d)
or (e), or section 8414(c).
(5) Notwithstanding paragraphs (1) through (4), the
reduction required by subsection (a) shall be effective
with respect to the annuity supplement payable for each
month in the 12-month period beginning on the first day
of the seventh month after the end of the calendar year
in which the excess earnings were earned.
(c) The Office shall prescribe regulations under which
this section shall be applied in the case of a reemployed
annuitant.
Sec. 8422. Deductions from pay; contributions for military service
(a)(1) The employing agency shall deduct and withhold from
basic pay of each employee and Member a percentage of basic pay
determined in accordance with paragraph (2).
(2) The percentage to be deducted and withheld from basic
pay for any pay period shall be equal to--
(A) the applicable percentage under paragraph (3),
minus
(B) the percentage then in effect under section
3101(a) of the Internal Revenue Code of 1986 (relating
to rate of tax for old-age, survivors, and disability
insurance).
(3) The applicable percentage under this paragraph for
civilian service shall be as follows:
Employee................................ 7...................... January 1, 1987, to December 31, 1998.
7.25................... January 1, 1999, to December 31, 1999.
7.4.................... January 1, 2000, to December 31, 2000.
7...................... After December 31, 2000.
Congressional employee.................. 7.5.................... January 1, 1987, to December 31, 1998.
7.75................... January 1, 1999, to December 31, 1999.
7.9.................... January 1, 2000, to December 31, 2000.
7.5.................... After December 31, 2000.
Member.................................. 7.5.................... January 1, 1987, to December 31, 1998.
7.75................... January 1, 1999, to December 31, 1999.
7.9.................... January 1, 2000, to December 31, 2000.
8...................... January 1, 2001, to December 31, 2002.
7.5.................... After December 31, 2002.
Law enforcement officer, firefighter, 7.5.................... January 1, 1987, to December 31, 1998.
member of the Capitol Police, member of
the Supreme Court Police, or air
traffic controller.
7.75................... January 1, 1999, to December 31, 1999.
7.9.................... January 1, 2000, to December 31, 2000.
7.5.................... After December 31, 2000.
Nuclear materials courier............... 7...................... January 1, 1987, to October 16, 1998.
7.5.................... October 17, 1998, to December 31, 1998.
7.75................... January 1, 1999, to December 31, 1999.
7.9.................... January 1, 2000, to December 31, 2000.
7.5.................... After December 31, 2000.
(b) Each employee or Member is deemed to consent and agree
to the deductions under subsection (a). Notwithstanding any law
or regulation affecting the pay of an employee or Member,
payment less such deductions is a full and complete discharge
and acquittance of all claims and demands for regular services
during the period covered by the payment, except the right to
any benefits under this subchapter, or under subchapter IV or V
of this chapter, based on the service of the employee or
Member.
(c) The amounts deducted and withheld under this section
shall be deposited in the Treasury of the United States to the
credit of the Fund under such procedures as the Secretary of
the Treasury may prescribe.
(d) Under such regulations as the Office may prescribe,
amounts deducted under subsection (a) shall be entered on
individual retirement records.
(e)(1)(A) Except as provided in subparagraph (B), and
subject to paragraph (6), each employee or Member who has
performed military service before the date of the separation on
which the entitlement to any annuity under this subchapter, or
subchapter V of this chapter, is based may pay, in accordance
with such regulations as the Office shall issue, to the agency
by which the employee is employed, or, in the case of a Member
or a Congressional employee, to the Secretary of the Senate or
the Chief Administrative Officer of the House of
Representatives, as appropriate, an amount equal to 3 percent
of the amount of the basic pay paid under section 204 of title
37 to the employee or Member for each period of military
service after December 1956. The amount of such payments shall
be based on such evidence of basic pay for military service as
the employee or Member may provide, or if the Office determines
sufficient evidence has not been so provided to adequately
determine basic pay for military service, such payment shall be
based on estimates of such basic pay provided to the Office
under paragraph (4).
(B) \1\ In any case where military service
interrupts creditable civilian service under this
subchapter and reemployment pursuant to chapter 43 of
title 38 occurs on or after August 1, 1990, the deposit
payable under this paragraph may not exceed the amount
that would have been deducted and withheld under
subsection (a)(1) from basic pay during civilian
service if the employee had not performed the period of
military service.
---------------------------------------------------------------------------
\1\ So in original. The margin of this subparagraph probably should
be set full measure.
---------------------------------------------------------------------------
(2) Any deposit made under paragraph (1) more than two
years after the later of--
(A) January 1, 1987; or
(B) the date on which the employee or Member making
the deposit first becomes an employee or Member
following the period of military service for which such
deposit is due,
shall include interest on such amount computed and compounded
annually beginning on the date of the expiration of the two-
year period. The interest rate that is applicable in computing
interest in any year under this paragraph shall be equal to the
interest rate that is applicable for such year under section
8334(e).
(3) Any payment received by an agency, the Secretary of the
Senate, or the Chief Administrative Officer of the House of
Representatives under this subsection shall be immediately
remitted to the Office for deposit in the Treasury of the
United States to the credit of the Fund.
(4) The Secretary of Defense, the Secretary of
Transportation, the Secretary of Commerce, or the Secretary of
Health and Human Services, as appropriate, shall furnish such
information to the Office as the Office may determine to be
necessary for the administration of this subsection.
(5) For the purpose of survivor annuities, deposits
authorized by this subsection may also be made by a survivor of
an employee or Member.
(6) The percentage of basic pay under section 204 of title
37 payable under paragraph (1), with respect to any period of
military service performed during--
(A) January 1, 1999, through December 31, 1999,
shall be 3.25 percent; and
(B) January 1, 2000, through December 31, 2000,
shall be 3.4 percent.
(f)(1) Each employee or Member who has performed service as
a volunteer or volunteer leader under part A of title VIII of
the Economic Opportunity Act of 1964, as a full-time volunteer
enrolled in a program of at least 1 year's duration under part
A, B, or C of title I of the Domestic Volunteer Service Act of
1973, or as a volunteer or volunteer leader under the Peace
Corps Act before the date of the separation on which the
entitlement to any annuity under this subchapter, or subchapter
V of this chapter, is based may pay, in accordance with such
regulations as the Office of Personnel Management shall issue,
an amount equal to 3 percent of the readjustment allowance paid
to the employee or Member under title VIII of the Economic
Opportunity Service Act of 1964 or section 5(c) or 6(1) of the
Peace Corps Act or the stipend paid to the employee or Member
under part A, B, or C of title I of the Domestic Volunteer
Service Act of 1973, for each period of service as such a
volunteer or volunteer leader. This paragraph shall be subject
to paragraph (4).
(2) Any deposit made under paragraph (1) more than 2 years
after the later of--
(A) October 1, 1993, or
(B) the date on which the employee or Member making
the deposit first becomes an employee or Member,
shall include interest on such amount computed and compounded
annually beginning on the date of the expiration of the 2-year
period. The interest rate that is applicable in computing
interest in any year under this paragraph shall be equal to the
interest rate that is applicable for such year under section
8334(e).
(3) The Director of the Peace Corps and the Chief Executive
Officer of the Corporation for National and Community Service
shall furnish such information to the Office of Personnel
Management as the Office may determine to be necessary for the
administration of this subsection.
(4) The percentage of the readjustment allowance or stipend
(as the case may be) payable under paragraph (1), with respect
to any period of volunteer service performed during--
(A) January 1, 1999, through December 31, 1999,
shall be 3.25 percent; and
(B) January 1, 2000, through December 31, 2000,
shall be 3.4 percent.
(g) A Member who has served in a position in the executive
branch for which the rate of basic pay was reduced for the
duration of the service of the Member to remove the impediment
to the appointment of the Member imposed by article I, section
6, clause 2 of the Constitution, or the survivor of such a
Member, may deposit to the credit of the Fund an amount equal
to the difference between the amount deducted from the basic
pay of the Member during that period of service and the amount
that would have been deducted if the rate of basic pay which
would otherwise have been in effect during that period had been
in effect, plus interest computed under section 8334(e).
Sec. 8423. Government contributions
(a)(1) Each employing agency having any employees or
Members subject to section 8422(a) shall contribute to the Fund
an amount equal to the sum of--
(A) the product of--
(i) the normal-cost percentage, as
determined for employees (other than employees
covered by subparagraph (B)), multiplied by
(ii) the aggregate amount of basic pay
payable by the agency, for the period involved,
to employees (under clause (i)) who are within
such agency; and
(B) the product of--
(i) the normal-cost percentage, as
determined for Members, Congressional
employees, law enforcement officers, members of
the Supreme Court Police, firefighters, nuclear
materials couriers, air traffic controllers,
military reserve technicians, and employees
under sections 302 and 303 of the Central
Intelligence Agency Retirement Act, multiplied
by
(ii) the aggregate amount of basic pay
payable by the agency, for the period involved,
to employees and Members (under clause (i)) who
are within such agency.
(2) In determining any normal-cost percentage to be applied
under this subsection, amounts provided for under section 8422
shall be taken into account.
(3) Contributions under this subsection shall be paid--
(A) in the case of law enforcement officers,
members of the Supreme Court Police, firefighters,
nuclear materials couriers, air traffic controllers,
military reserve technicians, and other employees, from
the appropriation or fund used to pay such law
enforcement officers, members of the Supreme Court
Police, firefighters, air traffic controllers, military
reserve technicians, or other employees, respectively;
(B) in the case of elected officials, from an
appropriation or fund available for payment of other
salaries of the same office or establishment; and
(C) in the case of employees of the legislative
branch paid by the Chief Administrative Officer of the
House of Representatives, from the applicable accounts
of the House of Representatives.
(4) A contribution to the Fund under this subsection shall
be deposited under such procedures as the Comptroller General
of the United States may prescribe.
(b)(1) The Office shall compute--
(A) the amount of the supplemental liability of the
Fund with respect to individuals other than those to
whom subparagraph (B) relates, and
(B) the amount of the supplemental liability of the
Fund with respect to current or former employees of the
United States Postal Service (and the Postal Rate
Commission) and their survivors;
as of the close of each fiscal year beginning after September
30, 1987.
(2) The amount of any supplemental liability computed under
paragraph (1)(A) or (1)(B) shall be amortized in 30 equal
annual installments, with interest computed at the rate used in
the most recent valuation of the System.
(3) At the end of each fiscal year, the Office shall
notify--
(A) the Secretary of the Treasury of the amount of
the installment computed under this subsection for such
year with respect to individuals under paragraph
(1)(A); and
(B) the Postmaster General of the United States of
the amount of the installment computed under this
subsection for such year with respect to individuals
under paragraph (1)(B).
(4)(A) Before closing the accounts for a fiscal year, the
Secretary of the Treasury shall credit to the Fund, as a
Government contribution, out of any money in the Treasury of
the United States not otherwise appropriated, the amount under
paragraph (3)(A) for such year.
(B) Upon receiving notification under paragraph (3)(B), the
United States Postal Service shall pay the amount specified in
such notification to the Fund.
(5) For the purpose of carrying out paragraph (1) with
respect to any fiscal year, the Office may--
(A) require the Board of Actuaries of the Civil
Service Retirement System to make actuarial
determinations and valuations, make recommendations,
and maintain records in the same manner as provided in
section 8347(f); and
(B) use the latest actuarial determinations and
valuations made by such Board of Actuaries.
(c) Under regulations prescribed by the Office, the head of
an agency may request reconsideration of any amount determined
to be payable with respect to such agency under subsection (a)
or (b). Any such request shall be referred to the Board of
Actuaries of the Civil Service Retirement System. The Board of
Actuaries shall review the computations of the Office and may
make any adjustment with respect to any such amount which the
Board determines appropriate. A determination by the Board of
Actuaries under this subsection shall be final.
Sec. 8424. Lump-sum benefits; designation of beneficiary; order of
precedence
(a) Subject to subsection (b), an employee or Member who--
(1)(A) is separated from the service for at least
31 consecutive days; or
(B) is transferred to a position in which the
individual is not subject to this chapter and remains
in such a position for at least 31 consecutive days;
(2) files an application with the Office for
payment of the lump-sum credit;
(3) is not reemployed in a position in which the
individual is subject to this chapter at the time of
filing the application; and
(4) will not become eligible to receive an annuity
within 31 days after filing the application;
is entitled to be paid the lump-sum credit. Except as provided
in section 8420a, payment of the lump-sum credit to an employee
or Member voids all annuity rights under this subchapter, and
subchapters IV and V of this chapter, based on the service on
which the lump-sum credit is based.
(b)(1)(A) Payment of the lump-sum credit under subsection
(a) may be made only if the spouse, if any, and any former
spouse of the employee or Member are notified of the employee
or Member's application.
(B) The Office shall prescribe regulations under which the
lump-sum credit shall not be paid without the consent of a
spouse or former spouse of the employee or Member where the
Office has received such additional information or
documentation as the Office may require that--
(i) a court order bars payment of the lump-sum
credit in order to preserve the court's ability to
award an annuity under section 8445 or 8467; or
(ii) payment of the lump-sum credit would
extinguish the entitlement of the spouse or former
spouse, under a court order on file with the Office, to
a survivor annuity under section 8445 or to any portion
of an annuity under section 8467.
(2)(A) Notification of a spouse or former spouse under this
subsection shall be made in accordance with such requirements
as the Office shall by regulation prescribe.
(B) Under the regulations, the Office may provide that
paragraph (1)(A) may be waived with respect to a spouse or
former spouse if the employee or Member establishes to the
satisfaction of the Office that the whereabouts of such spouse
or former spouse cannot be determined.
(3) The Office shall prescribe regulations under which this
subsection shall be applied in any case in which the Office
receives two or more orders or decrees referred to in paragraph
(1)(B)(i).
(c) Under regulations prescribed by the Office, an employee
or Member, or a former employee or Member, may designate one or
more beneficiaries under this section.
(d) Lump-sum benefits authorized by subsections (e) through
(g) shall be paid to the individual or individuals surviving
the employee or Member and alive at the date title to the
payment arises in the following order of precedence, and the
payment bars recovery by any other individual:
First, to the beneficiary or beneficiaries
designated by the employee or Member in a signed and
witnessed writing received in the Office before the
death of such employee or Member. For this purpose, a
designation, change, or cancellation of beneficiary in
a will or other document not so executed and filed has
no force or effect.
Second, if there is no designated beneficiary, to
the widow or widower of the employee or Member.
Third, if none of the above, to the child or
children of the employee or Member and descendants of
deceased children by representation.
Fourth, if none of the above, to the parents of the
employee or Member or the survivor of them.
Fifth, if none of the above, to the duly appointed
executor or administrator of the estate of the employee
or Member.
Sixth, if none of the above, to such other next of
kin of the employee or Member as the Office determines
to be entitled under the laws of the domicile of the
employee or Member at the date of death of the employee
or Member.
For the purpose of this subsection, ``child'' includes a
natural child and an adopted child, but does not include a
stepchild.
(e) If an employee or Member, or former employee or Member,
dies--
(1) without a survivor, or
(2) with a survivor or survivors and the right of
all survivors under subchapter IV terminates before a
claim for survivor annuity under such subchapter is
filed,
the lump-sum credit shall be paid.
(f) If all annuity rights under this chapter (other than
under subchapter III of this chapter) based on the service of a
deceased employee or Member terminate before the total annuity
paid equals the lump-sum credit, the difference shall be paid.
(g) If an annuitant dies, annuity accrued and unpaid shall
be paid.
(h) Annuity accrued and unpaid on the termination, except
by death, of the annuity of an annuitant or survivor shall be
paid to that individual. Annuity accrued and unpaid on the
death of a survivor shall be paid in the following order of
precedence, and the payment bars recovery by any other person:
First, to the duly appointed executor or
administrator of the estate of the survivor.
Second, if there is no executor or administrator,
payment may be made, after 30 days from the date of
death of the survivor, to such next of kin of the
survivor as the Office determines to be entitled under
the laws of the domicile of the survivor at the date of
death.
Sec. 8425. Mandatory separation
(a) An air traffic controller who is otherwise eligible for
immediate retirement under section 8412(e) shall be separated
from the service on the last day of the month in which that air
traffic controller becomes 56 years of age or completes 20
years of service if then over that age. The Secretary, under
such regulations as the Secretary may prescribe, may exempt a
controller having exceptional skills and experience as a
controller from the automatic separation provisions of this
subsection until that controller becomes 61 years of age. The
Secretary shall notify the controller in writing of the date of
separation at least 60 days before that date. Action to
separate the controller is not effective, without the consent
of the controller, until the last day of the month in which the
60-day notice expires.
(b) A firefighter who is otherwise eligible for immediate
retirement under section 8412(d) shall be separated from the
service on the last day of the month in which such firefighter
becomes 55 years of age or completes 20 years of service if
then over that age. A law enforcement officer or nuclear
materials courier who is otherwise eligible for immediate
retirement under section 8412(d) shall be separated from the
service on the last day of the month in which that law
enforcement officer or nuclear materials courier becomes 57
years of age or completes 20 years of service if then over that
age. If the head of the agency judges that the public interest
so requires, that agency head may exempt such an employee from
automatic separation under this subsection until that employee
becomes 60 years of age. The employing office shall notify the
employee in writing of the date of separation at least 60 days
before that date. Action to separate the employee is not
effective, without the consent of the employee, until the last
day of the month in which the 60-day notice expires.
(c) A member of the Capitol Police who is otherwise
eligible for immediate retirement under section 8412(d) shall
be separated from the service on the last day of the month in
which such member becomes 57 years of age or completes 20 years
of service if then over that age. The Capitol Police Board,
when in its judgment the public interest so requires, may
exempt such a member from automatic separation under this
subsection until that member becomes 60 years of age. The Board
shall notify the member in writing of the date of separation at
least 60 days before that date. Action to separate the member
is not effective, without the consent of the member, until the
last day of the month in which the 60-day notice expires.
(d) A member of the Supreme Court Police who is otherwise
eligible for immediate retirement under section 8412(d) shall
be separated from the service on the last day of the month in
which such member becomes 57 years of age or completes 20 years
of service if then over that age. The Marshal of the Supreme
Court of the United States, when in his judgment the public
interest so requires, may exempt such a member from automatic
separation under this subsection until that member becomes 60
years of age. The Marshal shall notify the member in writing of
the date of separation at least 60 days before the date. Action
to separate the member is not effective, without the consent of
the member, until the last day of the month in which the 60-day
notice expires.
(e) The President, by Executive order, may exempt an
employee (other than a member of Capitol Police or Supreme
Court Police) from automatic separation under this section if
the President determines the public interest so requires.
SUBCHAPTER III--THRIFT SAVINGS PLAN
Sec. 8431. Certain transfers to be treated as a separation
(a) For purposes of this subchapter, separation from
Government employment includes a transfer from a position that
is subject to one of the retirement systems described in
subsection (b) to a position that is not subject to any of
them.
(b) The retirement systems described in this subsection
are--
(1) the retirement system under this chapter;
(2) the retirement system under subchapter III of
chapter 83; and
(3) any other retirement system under which
individuals may contribute to the Thrift Savings Fund
through withholdings from pay.
Sec. 8432. Contributions
(a)(1) An employee or Member may contribute to the Thrift
Savings Fund in any pay period, pursuant to an election under
subsection (b), an amount not to exceed the maximum percentage
of such employee's or Member's basic pay for such pay period
allowable under paragraph (2). Contributions under this
subsection pursuant to such an election shall, with respect to
each pay period for which such election remains in effect, be
made in accordance with a program of regular contributions
provided in regulations prescribed by the Executive Director.
(2) The maximum percentage allowable under this paragraph
shall be determined in accordance with the following table:
In the case of a pay period beginning in fiscal year: The maximum
percentage
allowable is:
2001.......................................................... 11
2002.......................................................... 12
2003.......................................................... 13
2004.......................................................... 14
2005.......................................................... 15
2006 or thereafter............................................ 100.
(b)(1)(A) The Executive Director shall prescribe
regulations under which employees and Members shall be afforded
a reasonable period every 6 months to elect to make
contributions under subsection (a), to modify the amount to be
contributed under such subsection, or to terminate such
contributions. An election to make such contributions shall
remain in effect until modified or terminated.
(B) The amount to be contributed pursuant to an election
under subparagraph (A) (or any election allowable by virtue of
paragraph (4)) shall be the percentage of basic pay or amount
designated by the employee or Member.
(2) Under the regulations--
(A) an employee or Member who has not previously
been eligible to make an election under this subsection
shall not become so eligible until the second period
(described in paragraph (1)) beginning after the date
of commencing service as an employee or Member;
(B) an employee or Member whose appointment or
election to a position or office in the Federal
Government follows a previous period of service during
which that individual met the requirements of
subparagraph (A) shall be eligible to make an election
under this subsection notwithstanding any period of
separation;
(C) an employee or Member who elects under
subparagraph (D) to terminate contributions shall not
again become eligible to make an election under this
subsection until the second period (described in
paragraph (1)) commencing after the election to
terminate; and
(D) an election to terminate may be made under this
subparagraph at any time other than during a period
afforded under paragraph (1).
(3) An employee or Member who elects to become subject to
this chapter under section 301 of the Federal Employees'
Retirement System Act of 1986 may make the first election for
the purpose of subsection (a) during the period prescribed for
such purpose by the Executive Director. The period prescribed
by the Executive Director shall commence on the date on which
the employee or Member makes the election to become subject to
this chapter.
(4) The Executive Director shall prescribe such regulations
as may be necessary to carry out the following:
(A) Notwithstanding subparagraph (A) of paragraph
(2), an employee or Member described in such
subparagraph shall be afforded a reasonable opportunity
to first make an election under this subsection
beginning on the date of commencing service or, if that
is not administratively feasible, beginning on the
earliest date thereafter that such an election becomes
administratively feasible, as determined by the
Executive Director.
(B) An employee or Member described in subparagraph
(B) of paragraph (2) shall be afforded a reasonable
opportunity to first make an election under this
subsection (based on the appointment or election
described in such subparagraph) beginning on the date
of commencing service pursuant to such appointment or
election or, if that is not administratively feasible,
beginning on the earliest date thereafter that such an
election becomes administratively feasible, as
determined by the Executive Director.
(C) Notwithstanding the preceding provisions of
this paragraph, contributions under paragraphs (1) and
(2) of subsection (c) shall not be payable with respect
to any pay period before the earliest pay period for
which such contributions would otherwise be allowable
under this subsection if this paragraph had not been
enacted.
(D) Sections 8351(a)(2), 8440a(a)(2), 8440b(a)(2),
8440c(a)(2), and 8440d(a)(2) shall be applied in a
manner consistent with the purposes of subparagraphs
(A) and (B), to the extent those subparagraphs can be
applied with respect thereto.
(E) Nothing in this paragraph shall affect
paragraph (3).
(c)(1)(A) At the time prescribed by the Executive Director,
but no later than 12 days after the end of the pay period that
includes the first date on which an employee or Member may make
contributions under subsection (a) (without regard to whether
the employee or Member has elected to make such contributions
during such pay period), and within such time as the Executive
Director may prescribe with respect to succeeding pay periods
(but no later than 12 days after the end of each such pay
period), the employing agency shall contribute to the Thrift
Savings Fund for the benefit of such employee or Member the
amount equal to 1 percent of the basic pay paid of such
employee or Member for such pay period.
(B) In the case of each employee or Member who is an
employee or Member on January 1, 1987, and continues as an
employee or Member without a break in service through April 1,
1987, the employing agency shall contribute to the Thrift
Savings Fund for the benefit of such employee or Member the
amount equal to 1 percent of the total basic pay paid to such
employee or Member for that period of service.
(C) If an employee or Member--
(i) is an employee or Member on January 1, 1987;
(ii) separates from Government employment before
April 1, 1987; and
(iii) before separation, completes the number of
years of civilian service applicable to such employee
or Member under subparagraph (A) or (B) of subsection
(g)(2),
the employing agency shall contribute to the Thrift Savings
Fund for the benefit of such employee or Member the amount
equal to 1 percent of the total basic pay paid to such employee
or Member for service performed on or after January 1, 1987,
and before the date of the separation.
(2)(A) In addition to contributions made under paragraph
(1), the employing agency of an employee or Member who
contributes to the Thrift Savings Fund under subsection (a) for
any pay period shall make a contribution to the Thrift Savings
Fund for the benefit of such employee or Member. The employing
agency's contribution shall be made within such time as the
Executive Director may prescribe, but no later than 12 days
after the end of each such pay period.
(B) The amount contributed under subparagraph (A) by an
employing agency with respect to a contribution of an employee
or Member during any pay period shall be the amount equal to
the sum of--
(i) such portion of the total amount of the
employee's or Member's contribution as does not exceed
3 percent of such employee's or Member's basic pay for
such period; and
(ii) one-half of such portion of the amount of the
employee's or Member's contribution as exceeds 3
percent, but does not exceed 5 percent, of such
employee's or Member's basic pay for such pay period.
(C) Notwithstanding subparagraph (B), the amount
contributed under subparagraph (A) by an employing agency with
respect to any contribution made by an employee or Member
during any pay period which begins after the date on which such
employee or Member makes an election under subsection (b)(4)
and before July 1, 1987, shall be the amount equal to the sum
of--
(i) two times such portion of the total amount of
the employee's or Member's contribution as does not
exceed 3 percent of such employee's or Member's basic
pay for such pay period; and
(ii) such portion of the total amount of the
employee's or Member's contributions as exceeds 3
percent, but does not exceed 5 percent, of such
employee's or Member's basic pay for such pay period.
(3)(A) There shall be contributed to the Thrift Savings
Fund on behalf of each employee or Member described in
subparagraph (B) the amount determined under subparagraph (C).
(B) An employee or Member referred to in subparagraph (A)
is an employee or Member who--
(i) is an employee or Member on January 1, 1987;
(ii) has creditable service described in section
8411(b)(2) of this title; and
(iii) has not received a refund of the amount of
the retirement deductions made with respect to such
service under section 204 of the Federal Employees'
Retirement Contribution Temporary Adjustment Act of
1983.
(C) The amount referred to in subparagraph (A) in the case
of an employee or Member is equal to the sum of--
(i) 1 percent of the total basic pay paid to such
employee or Member for service described in section
8411(b)(2) of this title; and
(ii) interest on such amount computed with respect
to such service in the manner provided in paragraphs
(2) and (3) of section 8334(e) of this title.
(D) The Secretary of the Treasury shall credit to the
Thrift Savings Fund, out of any sums in the Treasury not
otherwise appropriated, the amounts determined by the Director
to be necessary to carry out this paragraph.
(d) Notwithstanding any other provision of this section, no
contribution may be made under this section for any year to the
extent that such contribution, when added to prior
contributions for such year, exceeds any limitation under
section 415 of the Internal Revenue Code of 1986. However, no
contribution made under subsection (c)(3) shall be subject to,
or taken into account, for purposes of the preceding sentence.
(e) The sums required to be contributed to the Thrift
Savings Fund by an employing agency under subsection (c) for
the benefit of an employee or Member shall be paid from the
appropriation or fund available to such agency for payment of
salaries of the employee's or Member's office or establishment.
When an employee or Member in the legislative branch is paid by
the Chief Administrative Officer of the House of
Representatives, the Chief Administrative Officer may pay from
the applicable accounts of the House of Representatives the
contribution that otherwise would be contributed from the
appropriation or fund used to pay the employee or Member.
(f) Amounts contributed by an employee or Member under
subsection (a) and amounts contributed with respect to such
employee or Member under subsection (c) shall be deposited in
the Thrift Savings Fund to the credit of that employee's or
Member's account in accordance with such procedures as the
Secretary of the Treasury may, in consultation with the
Executive Director, prescribe in regulations.
(g)(1) Except as otherwise provided in this subsection, all
contributions made under this section shall be fully
nonforfeitable when made.
(2) Contributions made for the benefit of an employee under
subsection (c)(1) and all earnings attributable to such
contributions shall be forfeited if the employee separates from
Government employment before completing--
(A) 2 years of civilian service in the case of an
employee who, at the time of separation, is serving
in--
(i) a position in the Senior Executive
Service as a noncareer appointee (as defined in
section 3132(a)(7) of this title);
(ii) a position listed in section 5312,
5313, 5314, 5315, or 5316 of this title or a
position placed in level IV or V of the
Executive Schedule under section 5317 of this
title; or
(iii) a position in the Executive branch
which is excepted from the competitive service
by the Office by reason of the confidential and
policy-determining character of the position;
or
(B) 3 years of civilian service in the case of an
employee who is not serving in a position described in
subparagraph (A) at the time of separation.
(3) Contributions made for the benefit of a Member or
Congressional employee under subsection (c)(1) and all earnings
attributable to such contributions shall be forfeited if the
Member or Congressional employee separates from Government
employment before completing 2 years of civilian service.
(4) Nothing in paragraph (2) or (3) shall cause the
forfeiture of any contributions made for the benefit of an
employee, Member, or Congressional employee under subsection
(c)(1), or any earnings attributable thereto, if such employee,
Member, or Congressional employee is not separated from
Government employment as of date of death.
(5) Notwithstanding any other provision of law,
contributions made by the Government for the benefit of an
employee or Member under subsection (c), and all earnings
attributable to such contributions, shall be forfeited if the
annuity of the employee or Member, or that of a survivor or
beneficiary, is forfeited under subchapter II of chapter 83.
(h) No transfers or contributions may be made to the Thrift
Savings Fund except as provided in this chapter or section 8351
of this title.
(i)(1) This subsection applies to any employee--
(A) to whom section 8432b applies; and
(B) who, during the period of such employee's
absence from civilian service (as referred to in
section 8432b(b)(2)(B))--
(i) is eligible to make an election
described in subsection (b)(1); or
(ii) would be so eligible but for having
either elected to terminate individual
contributions to the Thrift Savings Fund within
2 months before commencing military service or
separated in order to perform military service.
(2) The Executive Director shall prescribe regulations to
ensure that any employee to whom this subsection applies shall,
within a reasonable time after being restored or reemployed (in
the manner described in section 8432b(a)(2)), be afforded the
opportunity to make, for purposes of this section, any election
which would be allowable during a period described in
subsection (b)(1)(A).
(j)(1) For the purpose of this subsection--
(A) the term ``eligible rollover distribution'' has
the meaning given such term by section 402(c)(4) of the
Internal Revenue Code of 1986; and
(B) the term ``qualified trust'' has the meaning
given such term by section 402(c)(8) of the Internal
Revenue Code of 1986.
(2) An employee or Member may contribute to the Thrift
Savings Fund an eligible rollover that a qualified trust could
accept under the Internal Revenue Code of 1986. A contribution
made under this subsection shall be made in the form described
in section 401(a)(31) of the Internal Revenue Code of 1986. In
the case of an eligible rollover distribution, the maximum
amount transferred to the Thrift Savings Fund shall not exceed
the amount which would otherwise have been included in the
employee's or Member's gross income for Federal income tax
purposes.
(3) The Executive Director shall prescribe regulations to
carry out this subsection.
Sec. 8432a. Payment of lost earnings
(a)(1) The Executive Director shall prescribe regulations
under which an employing agency shall be required to pay to the
Thrift Savings Fund amounts representing lost earnings
resulting from errors (including errors of omission) made by
such agency in carrying out this subchapter, subject to
paragraph (2).
(2) If the error involves an employing agency's failure to
deduct from basic pay contributions (in whole or in part) on
behalf of an individual in accordance with section 8432(a), the
regulations shall not provide for the payment of any lost
earnings which would be attributable to--
(A) the contributions that the agency failed to
deduct from basic pay in accordance with section
8432(a); or
(B) any related contributions under section
8432(c)(2) that the employing agency is not required
(by statute or otherwise) to make up.
(b) The regulations--
(1) shall include--
(A) procedures for computing lost earnings;
and
(B) procedures under which amounts paid to
the Thrift Savings Fund under this section
shall be credited to appropriate accounts;
(2) may provide for exceptions from the
requirements of this section to the extent that
correction of an error is not administratively
feasible;
(3) may require an employing agency to reimburse
the Thrift Savings Fund for costs incurred by the
Thrift Savings Fund in implementing corrections of
employing agency errors under this section; and
(4) may include such other provisions as the
Executive Director determines appropriate to carry out
this section.
(c) Any amounts required to be paid by an employing agency
under this section shall be paid from the appropriation or fund
available to the employing agency for payment of salaries of
the participant's office or establishment. If a participant in
the legislative branch is paid by the Chief Administrative
Officer of the House of Representatives, the Chief
Administrative Officer may pay from the applicable accounts of
the House of Representatives the amount required to be paid to
correct errors relating to the Thrift Savings Fund that
otherwise would be paid from the appropriation or fund used to
pay the participant.
Sec. 8432b. Contributions of persons who perform military service
(a) This section applies to any employee who--
(1) separates or enters leave-without-pay status in
order to perform military service; and
(2) is subsequently restored to or reemployed in a
position which is subject to this chapter, pursuant to
chapter 43 of title 38.
(b)(1) Each employee to whom this section applies may
contribute to the Thrift Savings Fund, in accordance with this
subsection, an amount not to exceed the amount described in
paragraph (2).
(2) The maximum amount which an employee may contribute
under this subsection is equal to--
(A) the contributions under section 8432(a) which
would have been made, over the period beginning on date
of separation or commencement of leave-without-pay
status (as applicable) and ending on the day before the
date of restoration or reemployment (as applicable);
reduced by
(B) any contributions under section 8432(a) or
8440e \1\ actually made by such employee over the
period described in subparagraph (A).
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\1\ For the effective date of the amendment made to this
subparagraph by section 661(a)(3)(A) of the National Defense
Authorization Act for Fiscal Year 2000 (Public Law 106-65; 113 Stat.
671) see section 663 set out as a footnote at the end of section 8440e.
---------------------------------------------------------------------------
(3) Contributions under this subsection--
(A) shall be made at the same time and in the same
manner as would any contributions under section
8432(a);
(B) shall be made over the period of time specified
by the employee under paragraph (4)(B); and
(C) shall be in addition to any contributions then
actually being made under section 8432(a).
(4) The Executive Director shall prescribe the time, form,
and manner in which an employee may specify--
(A) the total amount such employee wishes to
contribute under this subsection with respect to any
particular period referred to in paragraph (2)(B); and
(B) the period of time over which the employee
wishes to make contributions under this subsection.
The employing agency may place a maximum limit on the period of
time referred to in subparagraph (B), which cannot be shorter
than two times the period referred to in paragraph (2)(B) and
not longer than four times such period.
(c)(1) \1\ If an employee makes contributions under
subsection (b), the employing agency shall make contributions
to the Thrift Savings Fund on such employee's behalf--
---------------------------------------------------------------------------
\1\ For the effective date of the amendment made to this subsection
by section 661(a)(3)(C) of the National Defense Authorization Act for
Fiscal Year 2000 (Public Law 106-65; 113 Stat. 671) see section 663 set
out as a footnote at the end of section 8440e.
---------------------------------------------------------------------------
(A) in the same manner as would be required under
section 8432(c)(2) if the employee contributions were
being made under section 8432(a); and
(B) disregarding any contributions then actually
being made under section 8432(a) and any agency
contributions relating thereto.
(2) An employee to whom this section applies is entitled to
have contributed to the Thrift Savings Fund on such employee's
behalf an amount equal to--
(A) the total contributions to which that
individual would have been entitled under section
8432(c)(2), based on the amounts contributed by such
individual under section 8440e (other than under
subsection (d)(2) thereof) with respect to the period
referred to in subsection (b)(2)(B), if those amounts
had been contributed by such individual under section
8432(a); reduced by
(B) any contributions actually made on such
employee's behalf under section 8432(c)(2) (including
pursuant to an agreement under section 211(d) of title
37) with respect to the period referred to in
subsection (b)(2)(B).
(d) An employee to whom this section applies is entitled to
have contributed to the Thrift Savings Fund on such employee's
behalf an amount equal to--
(1) 1 percent of such employee's basic pay (as
determined under subsection (e)) for the period
referred to in subsection (b)(2)(B); reduced by
(2) any contributions actually made on such
employee's behalf under section 8432(c)(1) with respect
to the period referred to in subsection (b)(2)(B).
(e) For purposes of any computation under this section, an
employee shall, with respect to the period referred to in
subsection (b)(2)(B), be considered to have been paid at the
rate which would have been payable over such period had such
employee remained continuously employed in the position which
such employee last held before separating or entering leave-
without-pay status to perform military service.
(f)(1) The employing agency may be required to pay lost
earnings on contributions made pursuant to subsections (c) and
(d). Such earnings, if required, shall be calculated
retroactively to the date the contribution would have been made
had the employee not separated or entered leave without pay
status to perform military service.
(2) Procedures for calculating and crediting the earnings
payable pursuant to paragraph (1) shall be prescribed by the
Executive Director.
(g) Amounts paid under subsection (c), (d), or (f) shall be
paid--
(1) by the agency to which the employee is restored
or in which such employee is reemployed;
(2) from the same source as would be the case under
section 8432(e) with respect to sums required under
section 8432(c); and
(3) within the time prescribed by the Executive
Director.
(h)(1) For purposes of section 8432(g), in the case of an
employee to whom this section applies--
(A) a separation from civilian service in order to
perform the military service on which the employee's
restoration or reemployment rights are based shall be
disregarded; and
(B) such employee shall be credited with a period
of civilian service equal to the period referred to in
subsection (b)(2)(B).
(2)(A) An employee to whom this section applies may elect,
for purposes of section 8433(d), or paragraph (1) or (2) of
section 8433(h), as the case may be, to have such employee's
separation (described in subsection (a)(1)) treated as if it
had never occurred.
(B) An election under this paragraph shall be made within
such period of time after restoration or reemployment (as the
case may be) and otherwise in such manner as the Executive
Director prescribes.
(i) The Executive Director shall prescribe regulations to
carry out this section.
Sec. 8432c. Contributions of certain persons reemployed after service
with international organizations
(a) In this section, the term ``covered person'' means any
person who--
(1) transfers from a position of employment covered
by chapter 83 or 84 or subchapter I or II of chapter 8
of \1\ the Foreign Service Act of 1980 to a position of
employment with an international organization pursuant
to section 3582;
---------------------------------------------------------------------------
\1\ So in law. Probably should read ``chapter 8 of title I of the
Foreign Service Act of 1980''.
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(2) pursuant to section 3582 elects to retain
coverage, rights, and benefits under any system
established by law for the retirement of persons during
the period of employment with the international
organization and currently deposits the necessary
deductions in payment for such coverage, rights, and
benefits in the system's fund; and
(3) is reemployed pursuant to section 3582(b) to a
position covered by chapter 83 or 84 or subchapter I or
II of chapter 8 of \1\ the Foreign Service Act of 1980
after separation from the international organization.
(b)(1) Each covered person may contribute to the Thrift
Savings Fund, in accordance with this subsection, an amount not
to exceed the amount described in paragraph (2).
(2) The maximum amount which a covered person may
contribute under paragraph (1) is equal to--
(A) the total amount of all contributions under
section 8351(b)(2) or 8432(a), as applicable, which the
person would have made over the period beginning on the
date of transfer of the person (as described in
subsection (a)(1)) and ending on the day before the
date of reemployment of the person (as described in
subsection (a)(3)), minus
(B) the total amount of all contributions, if any,
under section 8351(b)(2) or 8432(a), as applicable,
actually made by the person over the period described
in subparagraph (A).
(3) Contributions under paragraph (1)--
(A) shall be made at the same time and in the same
manner as would any contributions under section
8351(b)(2) or 8432(a), as applicable;
(B) shall be made over the period of time specified
by the person under paragraph (4)(B); and
(C) shall be in addition to any contributions
actually being made by the person during that period
under section 8351(b)(2) or 8432(a), as applicable.
(4) The Executive Director shall prescribe the time, form,
and manner in which a covered person may specify--
(A) the total amount the person wishes to
contribute with respect to any period described in
paragraph (2)(A); and
(B) the period of time over which the covered
person wishes to make contributions under this
subsection.
(c) If a covered person who makes contributions under
section 8432(a) makes contributions under subsection (b), the
agency employing the person shall make those contributions to
the Thrift Savings Fund on the person's behalf in the same
manner as contributions are made for an employee described in
section 8432b(a) under sections 8432b(c), 8432b(d), and
8432b(f). Amounts paid under this subsection shall be paid in
the same manner as amounts are paid under section 8432b(g).
(d) For purposes of any computation under this section, a
covered person shall, with respect to the period described in
subsection (b)(2)(A), be considered to have been paid at the
rate which would have been payable over such period had the
person remained continuously employed in the position that the
person last held before transferring to the international
organization.
(e) For purposes of section 8432(g), a covered person shall
be credited with a period of civilian service equal to the
period beginning on the date of transfer of the person (as
described in subsection (a)(1)) and ending on the day before
the date of reemployment of the person (as described in
subsection (a)(3)).
(f) The Executive Director shall prescribe regulations to
carry out this section.
Sec. 8433. Benefits and election of benefits
(a) An employee or Member who separates from Government
employment is entitled to the amount of the balance in the
employee's or Member's account (except for the portion of such
amount forfeited under section 8432(g) of this title, if any)
as provided in this section.
(b) Subject to section 8435 of this title, any employee or
Member who separates from Government employment is entitled and
may elect to withdraw from the Thrift Savings Fund the balance
of the employee's or Member's account as--
(1) an annuity;
(2) a single payment;
(3) 2 or more substantially equal payments to be
made not less frequently than annually; or
(4) any combination of payments as provided under
paragraphs (1) through (3) as the Executive Director
may prescribe by regulation.
(c)(1) In addition to the right provided under subsection
(b) to withdraw the balance of the account, an employee or
Member who separates from Government service and who has not
made a withdrawal under subsection (h)(1)(A) may make one
withdrawal of any amount as a single payment in accordance with
subsection (b)(2) from the employee's or Member's account.
(2) An employee or Member may request that the amount
withdrawn from the Thrift Savings Fund in accordance with
subsection (b)(2) be transferred to an eligible retirement
plan.
(3) The Executive Director shall make each transfer elected
under paragraph (2) directly to an eligible retirement plan or
plans (as defined in section 402(c)(8) of the Internal Revenue
Code of 1986) identified by the employee, Member, former
employee, or former Member for whom the transfer is made.
(4) A transfer may not be made for an employee, Member,
former employee, or former Member under paragraph (2) until the
Executive Director receives from that individual the
information required by the Executive Director specifically to
identify the eligible retirement plan or plans to which the
transfer is to be made.
(d)(1) Subject to paragraph (3) and subsections (a) and (c)
of section 8435 of this title, an employee or Member may change
an election previously made under this subchapter.
(2) A former employee or Member may not change an election
under this section on or after the date on which a payment is
made in accordance with such election or, in the case of an
election to receive an annuity, the date on which an annuity
contract is purchased to provide for the annuity elected by the
former employee or Member.
(e) If an employee or Member (or former employee or Member)
dies without having made an election under this section or
after having elected an annuity under this section but before
making an election under section 8434 of this title, an amount
equal to the value of that individual's account (as of death)
shall, subject to any decree, order, or agreement referred to
in section 8435(c)(2) of this title be paid in a manner
consistent with section 8424(d) of this title.
(f)(1) Notwithstanding subsection (b), if an employee or
Member separates from Government employment, and such
employee's or Member's nonforfeitable account balance is less
than an amount that the Executive Director prescribes by
regulation, the Executive Director shall pay the nonforfeitable
account balance to the participant in a single payment, unless
an election under section 8432b(h)(2) is made to treat such
separation for purposes of this paragraph as if it had never
occurred.
(2) Unless otherwise elected under this section, and
subject to paragraph (1), benefits under this subchapter shall
be paid as an annuity commencing for an employee, Member,
former employee, or former Member on April 1 of the year
following the latest of the year in which--
(A) the employee, Member, former employee, or
former Member becomes 70\1/2\ years of age; or
(B) the employee, Member, former employee, or
former Member separates from Government employment.
(g)(1) \1\ At any time before separation, an employee or
Member may apply to the Board for permission to borrow from the
employee's or Member's account an amount not exceeding the
value of that portion of such account which is attributable to
contributions made by the employee or Member. Before a loan is
issued, the Executive Director shall provide in writing the
employee or Member with appropriate information concerning the
cost of the loan relative to other sources of financing, as
well as the lifetime cost of the loan, including the difference
in interest rates between the funds offered by the Thrift
Savings Fund, and any other effect of such loan on the
employee's or Member's final account balance.
---------------------------------------------------------------------------
\1\ For the effective date of the amendments made to these
paragraphs by section 661(a)(4) of the National Defense Authorization
Act for Fiscal Year 2000 (Public Law 106-65; 113 Stat. 672) see section
663 set out as a footnote at the end of section 8440e.
---------------------------------------------------------------------------
(2) Loans under this subsection shall be available to all
employees and Members on a reasonably equivalent basis, and
shall be subject to such other conditions as the Board may by
regulation prescribe. The restrictions of section 8477(c)(1) of
this title shall not apply to loans made under this subsection.
(3) A loan may not be made under this subsection to the
extent that the loan would be treated as a taxable distribution
under section 72(p) of the Internal Revenue Code of 1954.
(4) A loan may not be made under this subsection unless the
requirements of section 8435(e) of this title are satisfied.
(h)(1) An employee or Member may apply, before
separation, to the Board for permission to withdraw an amount
from the employee's or Member's account based upon--
(A) the employee or Member having attained age
59\1/2\; or
(B) financial hardship.
(2) A withdrawal under paragraph (1)(A) shall be
available to each eligible participant one time only.
(3) \1\ A withdrawal under paragraph (1)(B) shall be
available only for an amount not exceeding the value of that
portion of such account which is attributable to contributions
made by the employee or Member.
(4) Withdrawals under paragraph (1) shall be subject to
such other conditions as the Executive Director may prescribe
by regulation.
(5) A withdrawal may not be made under this subsection
unless the requirements of section 8435(e) of this title are
satisfied.
Sec. 8434. Annuities: methods of payment; election; purchase
(a)(1) The Board shall prescribe methods of payment of
annuities under this subchapter.
(2) The methods of payment prescribed under paragraph (1)
shall include, but not be limited to--
(A) a method which provides for the payment of a
monthly annuity only to an annuitant during the life of
the annuitant;
(B) a method which provides for the payment of a
monthly annuity to an annuitant for the joint lives of
the annuitant and the spouse of the annuitant and an
appropriate monthly annuity to the one of them who
survives the other of them for the life of the
survivor;
(C) a method described in subparagraph (A) which
provides for automatic adjustments in the amount of the
annuity payable so long as the amount of the annuity
payable in any one year shall not be less than the
amount payable in the previous year;
(D) a method described in subparagraph (B) which
provides for automatic adjustments in the amount of the
annuity payable so long as the amount of the annuity
payable in any one year shall not be less than the
amount payable in the previous year; and
(E) a method which provides for the payment of a
monthly annuity--
(i) to the annuitant for the joint lives of
the annuitant and an individual who is
designated by the annuitant under regulations
prescribed by the Executive Director and (I) is
a former spouse of the annuitant, or (II) has
an insurable interest in the annuitant; and
(ii) to the one of them who survives the
other of them for the life of the survivor.
(b) Subject to section 8435(b) of this title, under such
regulations as the Executive Director shall prescribe, an
employee, Member, former employee, or former Member who elects
under section 8433 of this title to receive an annuity under
this subchapter shall elect, on or before the date on which an
annuity contract is purchased to provide for that annuity, one
of the methods of payment prescribed under subsection (a).
(c) Notwithstanding the elimination of a method of payment
by the Board, an employee, Member, former employee, or former
Member may elect the eliminated method if the elimination of
such method becomes effective less than 5 years before the date
on which that individual's annuity commences.
(d)(1) Not earlier than 90 days (or such shorted period
as the Executive Director may be regulation prescribe) before
an annuity is to commence under this subchapter, the Executive
Director shall expend the balance in the annuitant's account to
purchase an annuity contract from any entity which, in the
normal course of its business, sells and provides annuities.
(2) The Executive Director shall assure, by contract
entered into with each entity from which an annuity contract is
purchased under paragraph (1), that the annuity shall be
provided in accordance with the provisions of this subchapter
and subchapter VII of this chapter.
(3) An annuity contract purchased under paragraph (1) shall
include such terms and conditions as the Executive Director
requires for the protection of the annuitant.
(4) The Executive Director shall require, from each entity
from which an annuity contract is purchased under paragraph
(1), a bond or proof of financial responsibility sufficient to
protect the annuitant.
(e)(1) No tax, fee, or other monetary payment may be
imposed or collected by any State, the District of Columbia, or
the Commonwealth of Puerto Rico, or by any political
subdivision or other governmental authority thereof, on, or
with respect to, any amount paid to purchase an annuity
contract under this section.
(2) Paragraph (1) shall not be construed to exempt any
company or other entity issuing an annuity contact under this
section from the imposition, payment, or collection of a tax,
fee, or other monetary payment on the net income or profit
accruing to or realized by that entity from the sale of an
annuity contract under this section if that tax, fee, or
payment is applicable to a broad range of business activity.
Sec. 8435. Protections for spouses and former spouses
(a)(1)(A) A married employee or Member (or former employee
or Member) may withdraw all or part of a Thrift Savings Fund
account under subsection (b) (2), (3), or (4) of section 8433
of this title or change a withdrawal election only if the
employee or Member (or former employee or Member) satisfies the
requirements of subparagraph (B).
(B) An employee or Member (or former employee or Member)
may make an election or change referred to in subparagraph (A)
if the employee or Member and the employee's or Member's spouse
(or the former employee or Member and the former employee's or
Member's spouse) jointly waive, by written election, any right
which the spouse may have to a survivor annuity with respect to
such employee or Member (or former employee or Member) under
section 8434 of this title or subsection (b). A married
employee or Member (or former employee or Member) may make a
withdrawal from a Thrift Savings Fund account under subsection
(c)(1) of section 8433 of this title only if the employee or
Member (or former employee or Member) satisfies the
requirements of subparagraph (B).
(2) Paragraph (1) shall not apply to an election or change
of election by an employee or Member (or former employee or
Member) who establishes to the satisfaction of the Executive
Director (at the time of the election or change and in
accordance with regulations prescribed by the Executive
Director)--
(A) that the spouse's whereabouts cannot be
determined; or
(B) that, due to exceptional circumstances,
requiring the spouse's waiver would otherwise be
inappropriate.
(b)(1) Notwithstanding any election under subsection (b) of
section 8434 of this title, the method described in subsection
(a)(2)(B) of such section (or, if more than one form of such
method is available, the form which the Board determines to be
the one which provides for a surviving spouse a survivor
annuity most closely approximating the annuity of a surviving
spouse under section 8442 of this title) shall be deemed the
applicable method under such subsection (b) in the case of an
employee, Member, former employee, or former Member who is
married on the date on which an annuity contract is purchased
to provide for the employee's, Member's, former employee's, or
former Member's annuity under this subchapter.
(2) Paragraph (1) shall not apply if--
(A) a joint waiver of such method is made, in
writing, by the employee or Member and the spouse; or
(B) the employee or Member waives such method, in
writing, after establishing to the satisfaction of the
Executive Director that circumstances described under
subsection (a)(2) (A) or (B) make the requirement of a
joint waiver inappropriate.
(c)(1) An election or change of election shall not be
effective under this subchapter to the extent that the
election, change, or transfer conflicts with any court decree,
order, or agreement described in paragraph (2).
(2) A court decree, order, or agreement referred to in
paragraph (1) is, with respect to an employee or Member (or
former employee or Member), a court decree of divorce,
annulment, or legal separation issued in the case of such
employee or Member (or former employee or Member) and any
former spouse of the employee or Member (or former employee or
Member) or any court order or court-approved property
settlement agreement incident to such decree if--
(A) the decree, order, or agreement expressly
relates to any portion of the balance in the employee's
or Member's (or former employee's or Member's) account;
and
(B) notice of the decree, order, or agreement was
received by the Executive Director before--
(i) the date on which payment is made, or
(ii) in the case of an annuity, the date on
which an annuity contract is purchased to
provide for the annuity,
in accordance with the election, change, or
contribution referred to in paragraph (1).
(3) The Executive Director shall prescribe regulations
under which this subsection shall be applied in any case in
which the Executive Director receives two or more decrees,
orders, or agreements referred to in paragraph (1).
(d)(1) Subject to paragraphs (2) through (7), a former
spouse of a deceased employee or Member (or a deceased former
employee or Member) who died after performing 18 or more months
of service and a former spouse of a deceased former employee or
Member who died entitled to an immediate or deferred annuity
under subchapter II of this chapter is entitled to a survivor
annuity under this subsection if and to the extent that--
(A) an election under section 8434(a)(2)(E) of this
title, or
(B) any court decree, order, or agreement
(described in subsection (c)(2), without regard to
subparagraph (B) of such subsection) which relates to
such deceased individual and such former spouse,
expressly provides for such survivor annuity.
(2) Paragraph (1) shall apply only to payments made by the
Executive Director after the date on which the Executive
Director receives written notice of the election, decree,
order, or agreement, and such additional information and
documentation as the Executive Director may require.
(3) The amount of the survivor annuity payable from the
Thrift Savings Fund to a former spouse of a deceased employee,
Member, former employee, or former Member under this section
may not exceed the excess, if any, of--
(A) the amount of the survivor annuity determined
for a surviving spouse of the deceased employee,
Member, former employee, or former Member under the
method described in subsection (b)(1), over
(B) the total amount of all other survivor
annuities payable under this subchapter to other former
spouses of such deceased employee, Member, former
employee, or former Member based on the order of
precedence provided in paragraph (4).
(4) If more than one former spouse of a deceased employee,
Member, former employee, or former Member is entitled to a
survivor annuity pursuant to this subsection, the amount of
each such survivor annuity shall be limited appropriately to
carry out paragraph (3) in the order of precedence established
for the entitlements by the chronological order of the dates on
which elections are properly made pursuant to section
8434(a)(2)(E) of this title and the dates on which the court
decrees, orders, or agreements applicable to the entitlement
were issued, as the case may be.
(5) Subsections (c) and (d) of section 8445 of this title
shall apply to an entitlement of a former spouse to a survivor
annuity under this subsection.
(6) For the purposes of this section, a court decree,
order, or agreement or an election referred to in subsection
(a) of this section shall not be effective, in the case of a
former spouse, to the extent that the election is inconsistent
with any joint waiver previously executed with respect to such
former spouse under subsection (a)(2) or (b)(2).
(7) Any payment under this subsection to any individual
bars recovery by any other individual.
(e)(1)(A) A loan or withdrawal may be made to a married
employee or Member under section 8433(g) and (h) of this title
only if the employee's or Member's spouse consents to such loan
or withdrawal in writing.
(B) A consent under subparagraph (A) shall be irrevocable
with respect to the loan or withdrawal to which the consent
relates.
(C) Subparagraph (A) shall not apply to a loan or
withdrawal to an employee or Member who establishes to the
satisfaction of the Executive Director (at the time the
employee or Member applies for such loan or withdrawal and in
accordance with regulations prescribed by the Executive
Director)--
(i) that the spouse's whereabouts cannot be
determined; or
(ii) that, due to exceptional circumstances,
requiring the employee or Member to seek the spouse's
consent would otherwise be inappropriate.
(2) An application for a loan or withdrawal under section
8433(g) and (h) of this title shall not be approved if approval
would have the result described under subsection (c)(1).
(f) Waivers and notifications required by this section and
waivers of the requirements for such waivers and notifications
(as authorized by this section) may be made only in accordance
with procedures prescribed by the Executive Director.
(g) Except with respect to the making of loans or
withdrawals under section 8433(g) and (h), none of the
provisions of this section requiring notification to, or the
consent or waiver of, a spouse or former spouse of an employee,
Member, former employees, or former Member shall apply in any
case in which the nonforfeitable account balance of the
employee, Member, former employee, or former Member is $3,500
or less.
(h) The protections provided by this section are in
addition to the protections provided by section 8467 of this
title.
Sec. 8436. Administrative provisions
(a) The Executive Director shall make or provide for
payments and transfers in accordance with an election of an
employee or Member under section 8433 or 8434(b) of this title
or, if applicable, in accordance with section 8435 of this
title.
(b) Any election, change of election, or modification of a
deferred annuity commencement date made under this subchapter
shall be in writing and shall be filed with the Executive
Director in accordance with regulations prescribed by the
Executive Director.
Sec. 8437. Thrift Savings Fund
(a) There is established in the Treasury of the United
States a Thrift Savings Fund.
(b) The Thrift Savings Fund consists of the sum of all
amounts contributed under section 8432 of this title and all
amounts deposited under section 8479(b) of this title,
increased by the total net earnings from investments of sums in
the Thrift Savings Fund or reduced by the total net losses from
investments of the Thrift Savings Fund, and reduced by the
total amount of payments made from the Thrift Savings Fund
(including payments for administrative expenses).
(c) The sums in the Thrift Savings Fund are appropriated
and shall remain available without fiscal year limitation--
(1) to invest under section 8438 of this title;
(2) to pay benefits or purchase annuity contracts
under this subchapter;
(3) to pay the administrative expenses of the
Federal Retirement Thrift Investment Management System
prescribed in subchapter VII of this chapter;
(4) to make distributions for the purposes of
section 8440(b) of this title;
(5) to make loans to employees and Members as
authorized under section 8433(g) of this title; and
(6) to purchase insurance as provided in section
8479(b)(2) of this title.
(d) Administrative expenses incurred to carry out this
subchapter and subchapter VII of this chapter shall be paid
first out of any sums in the Thrift Savings Fund forfeited
under section 8432(g) of this title and then out of net
earnings in such Fund.
(e)(1) Subject to subsection (d) and paragraphs (2) and
(3), sums in the Thrift Savings Fund credited to the account of
an employee, Member, former employee, or former Member may not
be used for, or diverted to, purposes other than for the
exclusive benefit of the employee, Member, former employee, or
former Member or his beneficiaries under this subchapter.
(2) Except as provided in paragraph (3), sums in the Thrift
Savings Fund may not be assigned or alienated and are not
subject to execution, levy, attachment, garnishment, or other
legal process. For the purposes of this paragraph, a loan made
from such Fund to an employee or Member shall not be considered
to be an assignment or alienation.
(3) Moneys due or payable from the Thrift Savings Fund to
any individual and, in the case of an individual who is an
employee or Member (or former employee or Member), the balance
in the account of the employee or Member (or former employee or
Member) shall be subject to legal process for the enforcement
of the individual's legal obligations to provide child support
or make alimony payments as provided in section 459 of the
Social Security Act (42 U.S.C. 659) or relating to the
enforcement of a judgment for physically, sexually, or
emotionally abusing a child as provided under section 8467(a).
For the purposes of this paragraph, an amount contributed for
the benefit of an individual under section 8432(c)(1)
(including any earnings attributable thereto) shall not be
considered part of the balance in such individual's account
unless such amount is nonforfeitable, as determined under
applicable provisions of section 8432(g).
(f) The sums in the Thrift Savings Fund shall not be
appropriated for any purpose other than the purposes specified
in this section and may not be used for any other purpose.
(g) All sums contributed to the Thrift Savings Fund by an
employee or Member or by an employing agency for the benefit of
such employee or Member and all net earnings in such Fund
attributable to investment of such sums are held in such Fund
in trust for such employee or Member.
Sec. 8438. Investment of Thrift Savings Fund
(a) For the purposes of this section--
(1) the term ``Common Stock Index Investment Fund''
means the Common Stock Index Investment Fund
established under subsection (b)(1)(C);
(2) the term ``equity capital'' means common and
preferred stock, surplus, undivided profits,
contingency reserves, and other capital reserves;
(3) the term ``Fixed Income Investment Fund'' means
the Fixed Income Investment Fund established under
subsection (b)(1)(B);
(4) the term ``Government Securities Investment
Fund'' means the Government Securities Investment Fund
established under subsection (b)(1)(A);
(5) the term ``International Stock Index Investment
Fund'' means the International Stock Index Investment
Fund established under subsection (b)(1)(E);
(6) the term ``net worth'' means capital, paid-in
and contributed surplus, unassigned surplus,
contingency reserves, group contingency reserves, and
special reserves;
(7) the term ``plan'' means an employee benefit
plan, as defined in section 3(3) of the Employee
Retirement Income Security Act of 1974 (29 U.S.C.
1002(3));
(8) the term ``qualified professional asset
manager'' means--
(A) a bank, as defined in section 202(a)(2)
of the Investment Advisers Act of 1940 (15
U.S.C. 80b-2(a)(2)) which--
(i) has the power to manage,
acquire, or dispose of assets of a
plan; and
(ii) has, as of the last day of its
latest fiscal year ending before the
date of a determination for the purpose
of this clause, equity capital in
excess of $1,000,000;
(B) a savings and loan association, the
accounts of which are insured by the Federal
Deposit Insurance Corporation, which--
(i) has applied for and been
granted trust powers to manage,
acquire, or dispose of assets of a plan
by a State or Government authority
having supervision over savings and
loan associations; and
(ii) has, as of the last day of its
latest fiscal year ending before the
date of a determination for the purpose
of this clause, equity capital or net
worth in excess of $1,000,000;
(C) an insurance company which--
(i) is qualified under the laws of
more than one State to manage, acquire,
or dispose of any assets of a plan;
(ii) has, as of the last day of its
latest fiscal year ending before the
date of a determination for the purpose
of this clause, net worth in excess of
$1,000,000; and
(iii) is subject to supervision and
examination by a State authority having
supervision over insurance companies;
or
(D) an investment adviser registered under
section 203 of the Investment Advisers Act of
1940 (15 U.S.C. 80b-3) if the investment
adviser has, on the last day of its latest
fiscal year ending before the date of a
determination for the purpose of this
subparagraph, total client assets under its
management and control in excess of
$50,000,000, and--
(i) the investment adviser has, on
such day, shareholder's or partner's
equity in excess of $750,000; or
(ii) payment of all of the
investment adviser's liabilities,
including any liabilities which may
arise by reason of a breach or
violation of a duty described in
section 8477 of this title, is
unconditionally guaranteed by--
(I) a person (as defined in
section 8471(4) of this title)
who directly or indirectly,
through one or more
intermediaries, controls, is
controlled by, or is under
common control with the
investment adviser and who has,
on the last day of the person's
latest fiscal year ending
before the date of a
determination for the purpose
of this clause, shareholder's
or partner's equity in an
amount which, when added to the
amount of the shareholder's or
partner's equity of the
investment adviser on such day,
exceeds $750,000;
(II) a qualified
professional asset manager
described in subparagraph (A),
(B), or (C); or
(III) a broker or dealer
registered under section 15 of
the Securities Exchange Act of
1934 (15 U.S.C. 78o) that has,
on the last day of the broker's
or dealer's latest fiscal year
ending before the date of a
determination for the purpose
of this clause, net worth in
excess of $750,000;
(9) the term ``shareholder's or partner's equity'',
as used in paragraph (8)(D) with respect to an
investment adviser or a person (as defined in section
8471(4) of this title) who is affiliated with the
investment adviser in a manner described in clause
(ii)(I) of such paragraph (8)(D), means the equity
shown in the most recent balance sheet prepared for
such investment adviser or affiliated person, in
accordance with generally accepted accounting
principles, within 2 years before the date on which the
investment adviser's status as a qualified professional
asset manager is determined for the purposes of this
section; and
(10) the term ``Small Capitalization Stock Index
Investment Fund'' means the Small Capitalization Stock
Index Investment Fund established under subsection
(b)(1)(D).
(b)(1) The Board shall establish--
(A) a Government Securities Investment Fund under
which sums in the Thrift Savings Fund are invested in
securities of the United States Government issued as
provided in subsection (e);
(B) a Fixed Income Investment Fund under which sums
in the Thrift Savings Fund are invested in--
(i) insurance contracts;
(ii) certificates of deposits; or
(iii) other instruments or obligations
selected by qualified professional asset
managers,
which return the amount invested and pay interest, at a
specified rate or rates, on that amount during a
specified period of time;
(C) a Common Stock Index Investment Fund as
provided in paragraph (2);
(D) \1\ a Small Capitalization Stock Index
Investment Fund as provided in paragraph (3);
and
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\1\ So in original. The margins probably should be set full
measure.
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(E) \1\ an International Stock Index
Investment Fund as provided in paragraph (4).
(2)(A) The Board shall select an index which is a commonly
recognized index comprised of common stock the aggregate market
value of which is a reasonably complete representation of the
United States equity markets.
(B) The Common Stock Index Investment Fund shall be
invested in a portfolio designed to replicate the performance
of the index selected under subparagraph (A). The portfolio
shall be designed such that, to the extent practicable, the
percentage of the Common Stock Index Investment Fund that is
invested in each stock is the same as the percentage determined
by dividing the aggregate market value of all shares of that
stock by the aggregate market value of all shares of all stocks
included in such index.
(3)(A) \1\ The Board shall select an index which is
a commonly recognized index comprised of common stock
the aggregate market value of which represents the
United States equity markets excluding the common
stocks included in the Common Stock Index Investment
Fund.
(B) The Small Capitalization Stock Index Investment
Fund shall be invested in a portfolio designed to
replicate the performance of the index in subparagraph
(A). The portfolio shall be designed such that, to the
extent practicable, the percentage of the Small
Capitalization Stock Index Investment Fund that is
invested in each stock is the same as the percentage
determined by dividing the aggregate market value of
all shares of that stock by the aggregate market value
of all shares of all stocks included in such index.
(4)(A) \1\ The Board shall select an index which is
a commonly recognized index comprised of stock the
aggregate market value of which is a reasonably
complete representation of the international equity
markets excluding the United States equity markets.
(B) The International Stock Index Investment Fund
shall be invested in a portfolio designed to replicate
the performance of the index in subparagraph (A). The
portfolio shall be designed such that, to the extent
practicable, the percentage of the International Stock
Index Investment Fund that is invested in each stock is
the same as the percentage determined by dividing the
aggregate market value of all shares of that stock by
the aggregate market value of all shares of all stocks
included in such index.
(c)(1) The Executive Director shall invest the sums
available in the Thrift Savings Fund for investment as provided
in elections made under subsection (d).
(2) If an election has not been made with respect to any
sums in the Thrift Savings Fund available for investment, the
Executive Director shall invest such sums in the Government
Securities Investment Fund.
(d)(1) At least twice each year, an employee or Member (or
former employee or Member) may elect the investment funds
referred to in subsection (b) into which the sums in the Thrift
Savings Fund credited to such individual's account are to be
invested or reinvested.
(2) An election may be made under paragraph (1) only in
accordance with regulations prescribed by the Executive
Director and within such period as the Executive Director shall
provide in such regulations.
(e)(1) The Secretary of the Treasury is authorized to issue
special interest-bearing obligations of the United States for
purchase by the Thrift Savings Fund for the Government
Securities Investment Fund.
(2)(A) Obligations issued for the purpose of this
subsection shall have maturities fixed with due regard to the
needs of such Fund as determined by the Executive Director, and
shall bear interest at a rate equal to the average market yield
(computed by the Secretary of the Treasury on the basis of
market quotations as of the end of the calendar month next
preceding the date of issue of such obligations) on all
marketable interest-bearing obligations of the United States
then forming a part of the public debt which are not due or
callable earlier than 4 years after the end of such calendar
month.
(B) Any average market yield computed under subparagraph
(A) which is not a multiple of one-eighth of 1 percent, shall
be rounded to the nearest multiple of one-eighth of 1 percent.
(f) The Board, other Government agencies, the Executive
Director, an employee, a Member, a former employee, and a
former Member may not exercise voting rights associated with
the ownership of securities by the Thrift Savings Fund.
(g)(1) Notwithstanding subsection (e) of this section, the
Secretary of the Treasury may suspend the issuance of
additional amounts of obligations of the United States, if such
issuances could not be made without causing the public debt of
the United States to exceed the public debt limit, as
determined by the Secretary of the Treasury.
(2) Any issuances of obligations to the Government
Securities Investment Fund which, solely by reason of the
public debt limit are not issued, shall be issued under
subsection (e) by the Secretary of the Treasury as soon as such
issuances can be issued without exceeding the public debt
limit.
(3) Upon expiration of the debt issuance suspension period,
the Secretary of the Treasury shall immediately issue to the
Government Securities Investment Fund obligations under chapter
31 of title 31 that (notwithstanding subsection (e)(2) of this
section) bear such interest rates and maturity dates as are
necessary to ensure that, after such obligations are issued,
the holdings of obligations of the United States by the
Government Securities Investment Fund will replicate the
obligations that would then be held by the Government
Securities Investment Fund under the procedures set forth in
paragraph (5), if the suspension of issuances under paragraph
(1) of this subsection had not occurred.
(4) On the first business day after the expiration of any
debt issuance suspension period, the Secretary of the Treasury
shall pay to the Government Securities Investment Fund, from
amounts in the general fund of the Treasury of the United
States not otherwise appropriated, an amount equal to the
excess of the net amount of interest that would have been
earned by the Government Securities Investment Fund from
obligations of the United States during such debt issuance
suspension period if--
(A) amounts in the Government Securities Investment
Fund that were available for investment in obligations
of the United States and were not invested during such
debt issuance suspension period solely by reason of the
public debt limit had been invested under the procedure
set forth in paragraph (5), over
(B) the net amount of interest actually earned by
the Government Securities Investment Fund from
obligations of the United States during such debt
issuance suspension period.
(5) On each business day during the debt limit suspension
period, the Executive Director shall notify the Secretary of
the Treasury of the amounts, by maturity, that would have been
invested or redeemed each day had the debt issuance suspension
period not occurred.
(6) For purposes of this subsection and subsection (h) of
this section--
(A) the term ``public debt limit'' means the
limitation imposed by section 3101(b) of title 31; and
(B) the term ``debt issuance suspension period''
means any period for which the Secretary of the
Treasury determines for purposes of this subsection
that the issuance of obligations of the United States
may not be made without exceeding the public debt
limit.
(h)(1) The Secretary of the Treasury shall report to
Congress on the operation and status of the Thrift Savings Fund
during each debt issuance suspension period for which the
Secretary is required to take action under paragraph (3) or (4)
of subsection (g) of this section. The report shall be
submitted as soon as possible after the expiration of such
period, but not later than 30 days after the first business day
after the expiration of such period. The Secretary shall
concurrently transmit a copy of such report to the Executive
Director.
(2) Whenever the Secretary of the Treasury determines that,
by reason of the public debt limit, the Secretary will be
unable to fully comply with the requirements of subsection (e)
of this section, the Secretary shall immediately notify
Congress and the Executive Director of the determination. The
notification shall be made in writing.
Sec. 8439. Accounting and information
(a)(1) \1\ The Executive Director shall establish and
maintain an account for each individual who makes contributions
or for whom contributions are made or who makes contributions
to the Thrift Savings Fund.
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\1\ For the effective date of the amendment made to this paragraph
by section 661(a)(5) of the National Defense Authorization Act for
Fiscal Year 2000 (Public Law 106-65; 113 Stat. 672) see section 663 set
out as a footnote at the end of section 8440e.
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(2) The balance in an individual's account at any time is
the excess of--
(A) the sum of--
(i) all contributions made to the Thrift
Savings Fund by the individual; \1\
---------------------------------------------------------------------------
\1\ See footnote on previous page.
---------------------------------------------------------------------------
(ii) all contributions made to such Fund
for the benefit of the individual; and \1\
(iii) the total amount of the allocations
made to and reductions made in the account
pursuant to paragraph (3), over
(B) the amounts paid out of the Thrift Savings Fund
with respect to such individual under this subchapter.
(3) Pursuant to regulations prescribed by the Executive
Director, the Executive Director shall allocate to each account
an amount equal to a pro rata share of the net earnings and net
losses from each investment of sums in the Thrift Savings Fund
attributable to sums credited to such account, reduced by an
appropriate share of the administrative expenses paid out of
the net earnings under section 8437(d) of this title, as
determined by the Executive Director.
(b)(1) For the purposes of this subsection, the term
``qualified public accountant'' shall have the same meaning as
provided in section 103(a)(3)(D) of the Employee Retirement
Income Security Act of 1974 (29 U.S.C. 1023(a)(3)(D)).
(2) The Executive Director shall annually engage, on behalf
of all individuals for whom an account is maintained, an
independent qualified public accountant, who shall conduct an
examination of all accounts and other books and records
maintained in the administration of this subchapter and
subchapter VII as the public accountant considers necessary to
enable the public accountant to make the determination required
by paragraph (3). The examination shall be conducted in
accordance with generally accepted auditing standards and shall
involve such tests of the accounts, books, and records as the
public accountant considers necessary.
(3) The public accountant conducting an examination under
paragraph (2) shall determine whether the accounts, books, and
records referred to in such paragraph have been maintained in
conformity with generally accepted accounting principles
applied on a basis consistent with the manner in which such
principles were applied during the examination conducted under
such paragraph during the preceding year. The public accountant
shall transmit to the Board a report on his examination,
including his determination under this paragraph.
(4) In making a determination under paragraph (3), a public
accountant may rely on the correctness of any actuarial matter
certified by an enrolled actuary if the public accountant
states his reliance in the report transmitted to the Board
under such paragraph.
(c)(1) The Board shall prescribe regulations under which
each individual for whom an account is maintained shall be
furnished with--
(A) a periodic statement relating to the
individual's account; and
(B) a summary description of the investment options
under section 8438 of this title covering, and an
evaluation of, each such option the 5-year period
preceding the date as of which such evaluation is made.
(2) Information under this subsection shall be provided at
least 30 calendar days before the beginning of each election
period under section 8432(b)(1)(A) of this title, and in a
manner designed to facilitate informed decisionmaking with
respect to elections under sections 8432 and 8438 of this
title. Nothing in this paragraph shall be considered to limit
the dissemination of information only to the times required
under the preceding sentence.
(d) Each employee, Member, former employee, or former
Member who elects to invest in the Common Stock Index
Investment Fund, the Fixed Income Investment Fund, the
International Stock Index Investment Fund, or the Small
Capitalization Stock Index Investment Fund, defined in
paragraphs (1), (3), (5), and (10), respectively, of section
8438(a) of this title shall sign an acknowledgement prescribed
by the Executive Director which states that the employee,
Member, former employee, or former Member understands that an
investment in either such Fund is made at the employee's,
Member's, former employee's, or former Member's risk, that the
employee, Member, former employee, or former Member is not
protected by the Government against any loss on such
investment, and that a return on such investment is not
guaranteed by the Government.
Sec. 8440. Tax treatment of the Thrift Savings Fund
(a) For purposes of the Internal Revenue Code of 1986--
(1) the Thrift Savings Fund shall be treated as a
trust described in section 401(a) of such Code which is
exempt from taxation under section 501(a) of such Code;
(2) any contribution to, or distribution from, the
Thrift Savings Fund shall be treated in the same manner
as contributions to or distributions from such a trust;
and
(3) subject to section 401(k)(4)(B) of such Code
and any dollar limitation on the application of section
402(a)(8) of such Code, contributions to the Thrift
Savings Fund shall not be treated as distributed or
made available to an employee or Member nor as a
contribution made to the Fund by an employee or Member
merely because the employee or Member has, under the
provisions of this subchapter and section 8351 of this
title, an election whether the contribution will be
made to the Thrift Savings Fund or received by the
employee or Member in cash.
(b) Nondiscrimination Requirements.--Notwithstanding any
other provision of law, the Thrift Savings Fund is not subject
to the nondiscrimination requirements applicable to
arrangements described in section 401(k) of title 26, United
States Code, or to matching contributions (as described in
section 401(m) of title 26, United States Code), so long as it
meets the requirements of this section.
(c) Subsection (a) shall not be construed to provide that
any amount of the employee's or Member's basic pay which is
contributed to the Thrift Savings Fund shall not be included in
the term ``wages'' for the purposes of section 209 of the
Social Security Act or section 3121(a) of the Internal Revenue
Code of 1986.
Sec. 8440a. Justices and judges
(a)(1) A justice or judge of the United States as defined
by section 451 of title 28 may elect to contribute an amount of
such individual's basic pay to the Thrift Savings Fund. Basic
pay does not include an annuity or salary received by a justice
or judge who has retired under section 371 (a) or (b) or
section 372(a) of title 28, United States Code.
(2) An election may be made under paragraph (1) only
during a period provided under section 8432(b) for individuals
subject to this chapter.
(b)(1) Except as otherwise provided in this subsection,
the provisions of this subchapter and subchapter VII shall
apply with respect to justices and judges making contributions
to the Thrift Savings Fund.
(2) The amount contributed by a justice or judge for any
pay period shall not exceed the maximum percentage of such
justice's or judge's basic pay for such pay period allowable
under section 8440f.
(3) No contributions shall be made for the benefit of a
justice or judge under section 8432(c) of this title.
(4) Section 8433(b) of this title applies with respect to
elections available to any justice or judge who retires under
section 371 (a) or (b) or section 372(a) of title 28.
Retirement under section 371 (a) or (b) or section 372(a) of
title 28 is a separation from service for the purposes of
subchapters III and VII or chapter 84 of this title.
(5) Section 8433(b) of this title applies to any justice
or judge who resigns without having met the age and service
requirements set forth in section 371(c) of title 28.
(6) The provisions of section 8351(b)(5) of this title
shall govern the rights of spouses of justices or judges
contributing to the Thrift Savings Fund under this section.
(7) Notwithstanding paragraphs (4) and (5), if any justice
or judge retires under subsection (a) or (b) of section 371 or
section 372(a) of title 28, or resigns without having met the
age and service requirements set forth under section 371(c) of
title 28, and such justice's or judge's nonforfeitable account
balance is less than an amount that the Executive Director
prescribes by regulation, the Executive Director shall pay the
nonforfeitable account balance to the participant in a single
payment.
Sec. 8440b. Bankruptcy judges and magistrates
(a)(1) A bankruptcy judge or magistrate who is covered by
section 377 of title 28 or section 2(c) of the Retirement and
Survivors' Annuities for Bankruptcy Judges and Magistrates Act
of 1988 may elect to contribute an amount of such individual's
basic pay to the Thrift Savings Fund.
(2) An election may be made under paragraph (1) only
during a period provided under section 8432(b) for individuals
subject to this chapter.
(b)(1) Except as otherwise provided in this subsection,
the provisions of this subchapter and subchapter VII shall
apply with respect to bankruptcy judges and magistrates who
make contributions to the Thrift Savings Fund under subsection
(a) of this section.
(2) The amount contributed by a bankruptcy judge or
magistrate for any pay period shall not exceed the maximum
percentage of such bankruptcy judge's or magistrate's basic pay
for such pay period allowable under section 8440f.
(3) No contributions shall be made under section 8432(c)
of this title for the benefit of a bankruptcy judge or
magistrate making contributions under subsection (a) of this
section.
(4)(A) Section 8433(b) of this title applies to a
bankruptcy judge or magistrate who elects to make contributions
to the Thrift Savings Fund under subsection (a) of this section
and who retires entitled to an immediate annuity under section
377 of title 28 (including a disability annuity under
subsection (d) of such section) or section 2(c) of the
Retirement and Survivors' Annuities for Bankruptcy Judges and
Magistrates Act of 1988.
(B) Section 8433(b) of this title applies to any bankruptcy
judge or magistrate who elects to make contributions to the
Thrift Savings Fund under subsection (a) of this section and
who retires before attaining age 65 but is entitled, upon
attaining age 65, to an annuity under section 377 of title 28
or section 2(c) of the Retirement and Survivors Annuities for
Bankruptcy Judges and Magistrates Act of 1988.
(C) Section 8433(b) of this title applies to any
bankruptcy judge or magistrate who elects to make contributions
to the Thrift Savings Fund under subsection (a) of this section
and who retires before becoming entitled to an immediate
annuity, or an annuity upon attaining age 65, under section 377
of title 28 or section 2(c) of the Retirement and Survivors'
Annuities for Bankruptcy Judges and Magistrates Act of 1988.
(5) With respect to bankruptcy judges and magistrates to
whom this section applies, any of the actions described under
paragraph (4)(A), (B), or (C) shall be considered a separation
from service for purposes of this subchapter and subchapter
VII.
(6) For purposes of this section, the terms
``retirement'' and ``retire'' include removal from office under
section 377(d) of title 28 on the sole ground of mental or
physical disability.
(7) In the case of a bankruptcy judge or magistrate who
receives a distribution from the Thrift Savings Plan and who
later receives an annuity under section 377 of title 28, that
annuity shall be offset by an amount equal to the amount of the
distribution which represents the Government's contribution to
that person's Thrift Savings Account, without regard to
earnings attributable to that amount. Where such an offset
would exceed 50 percent of the annuity to be received in the
first year, the offset may be divided equally over the first 2
years in which that person receives the annuity.
(8) Notwithstanding paragraph (4), if any bankruptcy
judge or magistrate retires under circumstances making such
bankruptcy judge or magistrate eligible to make an election
under subsection (b) of section 8433, and such bankruptcy
judge's or magistrate's nonforfeitable account balance is less
than an amount that the Executive Director prescribes by
regulation, the Executive Director shall pay the nonforfeitable
account balance to the participant in a single payment.
Sec. 8440c. Claims Court judges
(a)(1) A judge of the United States Claims Court who is
covered by section 178 of title 28 may elect to contribute an
amount of such individual's basic pay to the Thrift Savings
Fund.
(2) An election may be made under paragraph (1) only
during a period provided under section 8432(b) for individuals
subject to this chapter.
(b)(1) Except as otherwise provided in this subsection,
the provisions of this subchapter and subchapter VII shall
apply with respect to Claims Court judges who make
contributions to the Thrift Savings Fund under subsection (a)
of this section.
(2) The amount contributed by a Claims Court judge for
any pay period shall not exceed the maximum percentage of such
judge's basic pay for such pay period allowable under section
8440f.
(3) No contributions shall be made under section 8432(c)
of this title for the benefit of a Claims Court judge making
contributions under subsection (a) of this section.
(4)(A) Section 8433(b) of this title applies to a Claims
court judge who elects to make contributions to the Thrift
Savings Fund under subsection (a) of this section and who
retires entitled to an annuity under section 178 of title 28
(including a disability annuity under subsection (c) of such
section).
(B) Section 8433(b) of this title applies to any Claims
Court judge who elects to make contributions to the Thrift
Savings Fund under subsection (a) of this section and who
retires before becoming entitled to an annuity under section
178 of title 28.
(5) With respect to Claims Court judges to whom this
section applies, any of the actions described in paragraph
(4)(A) or (B) shall be considered a separation from service for
purposes of this subchapter and subchapter VII.
(6) For purposes of this section, the terms
``retirement'' and ``retire'' include removal from office under
section 178(c) of title 28 on the sole ground of mental or
physical disability.
(7) In the case of a Claims Court judge who receives a
distribution from the Thrift Savings Plan and who later
receives an annuity under section 178 of title 28, such annuity
shall be offset by an amount equal to the amount of the
distribution which represents the Governments contribution to
that person's Thrift Savings Account, without regard to earning
attributable to that amount. Where such an offset would exceed
50 percent of the annuity to be received in the first year, the
offset may be divided equally over the first 2 years in which
that person receives the annuity.
(8) Notwithstanding paragraph (4), if any Claims Court
judge retires under circumstances making such judge eligible to
make an election under section 8433(b), and such judge's
nonforfeitable account balance is less than an amount that the
Executive Director prescribes by regulation, the Executive
Director shall pay the nonforfeitable account balance to the
participant in a single payment.
Sec. 8440d. Judges of the United States Court of Appeals for Veterans
Claims
(a)(1) A judge of the United States Court of Appeals for
Veterans Claims may elect to contribute to the Thrift Savings
Fund.
(2) An election may be made under paragraph (1) only during
a period provided under section 8432(b) of this title for
individuals subject to this chapter.
(b)(1) Except as otherwise provided in this subsection, the
provisions of this subchapter and subchapter VII of this
chapter shall apply with respect to a judge making
contributions to the Thrift Savings Fund.
(2) The amount contributed by a judge of the United States
Court of Appeals for Veterans Claims for any pay period may not
exceed the maximum percentage of such judge's basic pay for
such pay period allowable under section 8440f. Basic pay does
not include any retired pay paid pursuant to section 7296 of
title 38.
(3) No contributions may be made for the benefit of a judge
under section 8432(c) of this title.
(4) Section 8433(b) of this title applies with respect to a
judge who elects to make contributions to the Thrift Savings
Fund and retires under section 7296(b) of title 38.
(5) Section 8433(b) of this title applies in the case of a
judge who elects to make contributions to the Thrift Savings
Fund and thereafter ceases to serve as a judge of the United
States Court of Appeals for Veterans Claims but does not retire
under section 7296(b) of title 38.
(6) The provisions of section 8351(b)(7) of this title
shall apply with respect to a judge who has elected to
contribute to the Thrift Savings Fund under this section.
Sec. 8440e. Members of the uniformed services
(a) For purposes of this section--
(1) the term ``member'' has the meaning given such
term by section 211 of title 37; and
(2) the term ``basic pay'' means basic pay payable
under section 204 of title 37.
(b)(1) Any member eligible to participate in the Thrift
Savings Plan by virtue of section 211(b) of title 37 may
contribute to the Thrift Savings Fund.
(2)(A) Except as provided in subparagraph (B), an election
to contribute to the Thrift Savings Fund under this section may
be made only during a period provided under section 8432(b),
subject to the same conditions as prescribed under paragraph
(2) (A)-(D) thereof.
(B)(i) Notwithstanding subparagraph (A), any individual who
is a member as of the effective date that applies with respect
to such individual under section 663 of the National Defense
Authorization Act for Fiscal Year 2000 may make the first such
election during the 60-day period beginning on such effective
date.
(ii) An election made under this subparagraph shall take
effect on the first day of the first applicable pay period
beginning after the close of the 60-day period referred to in
clause (i).
(c) Except as otherwise provided in this section, the
provisions of this subchapter and subchapter VII shall apply
with respect to members making contributions to the Thrift
Savings Fund, and such members shall, for purposes of this
subchapter and subchapter VII, be considered employees within
the meaning of section 8401(11).
(d)(1)(A) The amount contributed by a member described in
section 211(a)(1) of title 37 for any pay period out of basic
pay may not exceed the maximum percentage of such member's
basic pay for such pay period allowable under section 8440f.
(B) The amount contributed by a member described in section
211(a)(2) of title 37 for any pay period out of any
compensation received under section 206 of title 37 may not
exceed the maximum percentage of such member's compensation for
such pay period (received under such section 206) allowable
under section 8440f.
(2) A member making contributions to the Thrift Savings
Fund out of basic pay, or out of compensation under section 206
of title 37, may also contribute (by direct transfer to the
Fund) any part of any special or incentive pay that such member
receives under chapter 5 of title 37.
(3) Nothing in this section or section 211 of title 37
shall be considered to waive any dollar limitation under the
Internal Revenue Code of 1986 which otherwise applies with
respect to the Thrift Savings Fund.
(e) Except as provided in section 211(d) of title 37, no
contribution under section 8432(c) of this title may be made
for the benefit of a member making contributions to the Thrift
Savings Fund under this section.\1\
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\1\ Section 663 of the National Defense Authorization Act for
Fiscal Year 2000 (Public Law 106-65; 113 Stat. 673; 5 U.S.C. 8440 note)
as amended by section 661(a) of the Floyd D. Spence National Defense
Authorization Act for Fiscal Year 2001 (as enacted by section 1 of
Public Law 106-398; 114 Stat. 1654A-167), provides as follows:
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SEC. 663. EFFECTIVE DATE.
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(a) In General.--Except as provided in subsection (b), the
amendments made by this subtitle shall take effect 180 days after the
date of the enactment of the Floyd D. Spence National Defense
Authorization Act for Fiscal Year 2001.
(b) Postponement Authority.--(1) The Secretary of Defense may
postpone by up to 180 days after the date that would otherwise apply
under subsection (a)--
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(A) the date as of which the amendments made by this subtitle
shall take effect; or
(B) the date as of which section 211(a)(2) of title 37,
United States Code (as added by this subtitle) shall take
effect.
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(2) Postponement authority under this subsection may be exercised
only to the extent that the failure to do so would prevent the Federal
Retirement Thrift Investment Board from being able to provide timely
and accurate services to investors or would place an excessive burden
on the administrative capacity of the Board to accommodate participants
in the Thrift Savings Plan, as determined by the Secretary of Defense
after consultation with the Executive Director (appointed by the
Board).
(3) Paragraph (1) includes the authority to postpone the effective
date of the amendments made by this subtitle (apart from section
211(a)(2) of title 37, United States Code), and the effective date of
such section 211(a)(2), by different lengths of time.
(4) The Secretary shall notify the congressional defense
committees, the Committee on Government Reform of the House of
Representatives, and the Committee on Governmental Affairs of the
Senate of any determination made under this subsection.
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Sec. 8440f. Maximum percentage allowable for certain participants
The maximum percentage allowable under this section shall
be determined in accordance with the following table:
In the case of a pay period beginning in fiscal year: The maximum
percentage
allowable is:
2001.......................................................... 6
2002.......................................................... 7
2003.......................................................... 8
2004.......................................................... 9
2005.......................................................... 10
2006 or thereafter............................................ 100.
SUBCHAPTER IV--SURVIVOR ANNUITIES
Sec. 8441. Definitions
For the purpose of this subchapter--
(1) the term ``widow'' means the surviving wife of
an employee, Member, or annuitant, or of a former
employee or Member, who--
(A) was married to him for at least 9
months immediately before his death; or
(B) is the mother of issue by that
marriage;
(2) the term ``widower'' means the surviving
husband of an employee, Member, or annuitant, or of a
former employee or Member, who--
(A) was married to her for at least 9
months immediately before her death; or
(B) is the father of issue by that
marriage;
(3) the term ``dependent'', in the case of any
child, means that the employee, Member, or annuitant
involved was, at the time of death of the employee,
Member, or annuitant either living with or contributing
to the support of such child, as determined in
accordance with such regulations as the Office shall
prescribe; and
(4) the term ``child'' means--
(A) an unmarried dependent child under 18
years of age, including (i) an adopted child,
(ii) a stepchild but only if the stepchild
lived with the employee, Member, or annuitant
in a regular parent-child relationship, (iii) a
recognized natural child, and (iv) a child who
lived with and for whom a petition of adoption
was filed by an employee, Member, or annuitant
and who is adopted by the widow or widower of
the employee, Member, or annuitant after the
death of such employee, Member, or annuitant;
(B) such unmarried dependent child
regardless of age who is incapable of self-
support because of mental or physical
disability incurred before age 18; or
(C) such unmarried dependent child between
18 and 22 years of age who is a student
regularly pursuing a full-time course of study
or training in residence in a high school,
trade school, technical or vocational
institute, junior college, college, university,
or comparable recognized educational
institution.
For the purpose of this paragraph and section 8443, a
child whose 22nd birthday occurs before July 1 or after
August 31 of a calendar year, and while regularly
pursuing such a course of study or training, is deemed
to have become 22 years of age on the first day of July
after that birthday. A child who is a student is deemed
not to have ceased to be a student during an interim
between school years if the interim is not more than 5
months and if such child shows to the satisfaction of
the Office that such child has a bona fide intention of
continuing to pursue a course of study or training in
the same or different school during the school semester
(or other period into which the school year is divided)
immediately after the interim.
Sec. 8442. Rights of a widow or widower
(a)(1) Except as provided in subsection (g), if an
annuitant dies and is survived by a widow or widower, the widow
or widower is entitled to an annuity equal to 50 percent of an
annuity computed under section 8415 with respect to the
annuitant, (or one-half thereof, if designated for this purpose
under section 8419 of this title), unless--
(A) the right to an annuity was waived under
section 8416(a) (and no election was subsequently made
under section 8416(d) nullifying the waiver); or
(B) in the case of a marriage after retirement, the
annuitant did not file an election under section 8416
(b) or (c), as the case may be.
(2) A spouse acquired after retirement is entitled to an
annuity under this subsection (as provided in paragraph (1))
only upon electing this annuity instead of any other survivor
benefit to which such spouse may be entitled under this
subchapter or section 8424 or under another retirement system
for Government employees.
(b)(1) If an employee or Member dies after completing at
least 18 months of civilian service creditable under section
8411 and is survived by a widow or widower, the widow or
widower is entitled to--
(A) an amount equal to the sum of--
(i) 50 percent of the final annual rate of
basic pay (or of the average pay, if higher) of
the employee or Member; and
(ii) $15,000 as adjusted under section
8462(e); and
(B) if the employee or Member completed at least 10
years of service, an annuity equal to 50 percent of an
annuity computed under section 8415 with respect to the
employee or Member, but without regard to subsection
(f) of such section.
(2) The Office shall prescribe regulations under which the
total amount payable to a widow or widower under paragraph
(1)(A) may, at the election of the widow or widower, be paid--
(A) in a lump sum; or
(B) on a monthly basis--
(i) over a period of 3 years beginning on
the day after the employee's or Member's death;
or
(ii) over any other period established
under the regulations.
Any method of payment provided for under subparagraph (B) shall
be designed such that the present value of the benefits
provided under such method is actuarially equivalent to the
present value of a lump-sum payment under subparagraph (A).
(3) An amount payable under paragraph (1)(A) shall not be
considered to be part of an annuity for purposes of this
chapter.
(c)(1) If a former employee or Member dies after having
separated from the service with title to a deferred annuity
under section 8413 but before having established a valid claim
for an annuity, and is survived by a widow or widower to whom
married on the date of separation, the widow or widower may
elect to receive--
(A) an annuity under paragraph (2); or
(B) the lump-sum credit, if the widow or widower is
the individual who would be entitled to the lump-sum
credit and if such widow or widower files application
therefor with the Office.
(2)(A)(i) Subject to clause (ii) and subparagraph (B)(ii),
the annuity of the widow or widower is equal to 50 percent of
an annuity computed under section 8415 for the former employee
or Member.
(ii)(I) In computing an amount under section 8415 for a
former employee or Member (described in subclause (II)) in
order to compute the annuity for a widow or widower under this
subsection, the computation under section 8415 shall be made as
if the former employee or Member had attained the applicable
minimum retirement age under section 8412(h).
(II) This clause applies with respect to a former employee
or Member who dies before having attained the applicable
minimum retirement age under section 8412(h).
(B)(i) Notwithstanding the first sentence of subsection
(d)(1), the annuity of the widow or widower of a former
employee or Member under subparagraph (A)(ii) commences--
(I) on the day after the date on which the former
employee or Member would have attained age 62 (or, if
applicable, either age 60 if the former employee or
Member completed at least 20 years of service, or the
applicable minimum retirement age (under section
8412(h)) if the former employee of Member completed at
least 30 years of service); or
(II) if the widow or widower so designates in the
election, as of the day after the death of the former
employee or Member.
(ii) The present value of the annuity of a widow or widower
who chooses the earlier commencement date under clause (i)(II)
shall be actuarially equivalent to the present value of an
annuity computed for the widow or widower, determined as if the
commencement date under clause (i)(I) were applicable.
(3)(A) Paragraphs (1) and (2) shall apply only in the case
of an employee or Member who completes at least 10 years of
service.
(B) Nothing in this subsection shall be considered to
affect the provisions of this chapter relating to a lump-sum
credit in the case of the widow or widower of a former employee
or Member who dies after completing less than 10 years of
service.
(d)(1) The annuity of a widow or widower under this section
commences on the day after the death of the individual on whose
service such annuity is based. This annuity and the right
thereto terminate on the last day of the month before the widow
or widower--
(A) dies; or
(B) except as provided in paragraph (3), remarries
before becoming 55 years of age.
(2) In the case of a widow or widower whose annuity under
this section is terminated because of remarriage before
becoming 55 years of age, the annuity shall be restored at the
same rate commencing on the day the remarriage is dissolved by
death, divorce, or annulment, if--
(A) the widow or widower elects to receive this
annuity instead of any other survivor benefit to which
such widow or widower may be entitled (under this
subchapter or section 8424 or under another retirement
system for Government employees) by reason of the
remarriage; and
(B) any lump sum paid on termination of the annuity
is returned to the Fund.
(3) Paragraph (1)(B) (relating to termination of a survivor
annuity because of a remarriage before age 55) shall not apply
if the widow or widower was married for at least 30 years to
the individual on whose service the survivor annuity is based.
(e) The requirement in paragraphs (1)(A) and (2)(A) of
section 8441 that the widow or widower of an annuitant,
employee, or Member, or of a former employee or Member, have
been married to such individual for at least 9 months
immediately before the death of the individual in order to
qualify as the widow or widower of such individual shall be
deemed satisfied in any case in which the individual dies
within the applicable 9-month period, if--
(1) the death of the individual was accidental; or
(2) the surviving spouse of the individual had been
previously married to such individual and subsequently
divorced, and the aggregate time married is at least 9
months.
(f)(1) Subject to paragraph (4), a survivor who is entitled
to an annuity under subsection (a) shall also be entitled to a
supplementary annuity under this subsection.
(2) A supplementary annuity under this subsection shall be
equal to the lesser of--
(A) the amount by which the survivor's assumed CSRS
annuity exceeds the annuity payable to such survivor
under subsection (a); or
(B) the amount determined under paragraph (3).
(3)(A) Except as provided in subparagraph (B), the amount
under this paragraph for a survivor is the amount of widow's or
widower's insurance benefits which would be payable to such
survivor under title II of the Social Security Act (without
regard to sections 202(e)(7), 202(f)(2), and 203 of such Act)
based on the wages and self-employment income of the deceased
annuitant, and determined--
(i) as of the date on which the annuitant died; and
(ii) as if the survivor had attained age 60 and
made application for those benefits under subsection
(e) or (f) of section 202 of such Act, as the case may
be.
(B) Any computation or determination under this paragraph
shall be made in accordance with the applicable provisions of
the Social Security Act, except that in computing any primary
insurance amount under section 215 of such Act for purposes of
determining an amount under this subsection, subparagraphs (A)
and (C) of section 8421(b)(2) shall apply.
(4) A supplementary annuity under this subsection--
(A) shall be payable to a survivor only for
calendar months ending before the calendar month in
which such survivor first satisfies the minimum age
requirement under section 202(e)(1)(B)(i) or
202(f)(1)(B)(i) of the Social Security Act, as the case
may be;
(B) shall not be payable to a survivor who would
not be entitled to benefits under subsection (e) or (f)
of section 202 of the Social Security Act based on the
wages and self-employment income of the deceased
annuitant (determined, as of the date of the
annuitant's death, as if the survivor had attained age
60 and made appropriate application for benefits, but
without regard to any restriction under either such
subsection relating to remarriage); and
(C) shall not be payable to a survivor for any
calendar month in which such survivor is entitled (or
would, on proper application, be entitled) to benefits
under section 202(g) of the Social Security Act
(relating to mother's and father's insurance benefits),
or under section 202 (e) or (f) of such Act by reason
of having become disabled, based on the wages and self-
employment income of the deceased annuitant.
(5) For the purpose of this subsection, the term ``assumed
CSRS annuity'', as used in the case of a survivor, means the
amount of the annuity to which such survivor would be entitled
under subchapter III of chapter 83 of this title based on the
service of the deceased annuitant, determined--
(A) as of the day after the date of the annuitant's
death;
(B) as if the survivor had made appropriate
application therefor; and
(C) as if the service of the deceased annuitant
were creditable under such subchapter.
(6) An amount payable under this subsection shall be
adjusted under section 8462 and shall otherwise be treated
under this chapter in the same way as an amount payable under
subsection (a).
(g)(1) If the widow or widower of an annuitant under
section 8452 (hereinafter in this subsection referred to as a
``disability annuitant'') is determined under subsection (a) to
be entitled to an annuity based on the service of such
disability annuitant, the annuity of the widow or widower shall
be equal to 50 percent of the amount determined under paragraph
(2) (or one-half thereof if designated for this purpose under
section 8419 of this title), rather than of the amount referred
to in subsection (a).
(2)(A) Except as provided in subparagraph (B), the amount
on which the annuity of the widow or widower of a disability
annuitant is based shall be the amount of the annuity to which
such disability annuitant was entitled, as computed under
section 8452 (including appropriate reduction under subsection
(a)(2) of such section and any adjustments under section 8462
allowed under section 8452), as of the day before the date of
the disability annuitant's death.
(B)(i) In the case of a widow or widower entitled to an
annuity based on the service of a disability annuitant who dies
before age 62, the amount under clause (ii) shall apply instead
of the amount which would otherwise apply under subparagraph
(A).
(ii)(I) Subject to subclause (II), the amount of the
annuity to which the disability annuitant was entitled as of
the day before the date of death shall be considered to be the
amount which would be computed with respect to such disability
annuitant under section 8452(b) if the disability annuitant had
attained age 62 on the day before date of death.
(II) For purposes of any such computation under section
8452(b)(2) pursuant to this clause, creditable service shall
(in addition to the service which would otherwise be used under
subparagraph (B)(i) of such section) include the period of time
between date of death and the date of the sixty-second
anniversary of the birth of the annuitant, and average pay
shall be adjusted in accordance with subparagraph (B)(ii) of
such section only through date of death.
(h) The following rules shall apply notwithstanding any
other provision of this section:
(1) The annuity payable under this section to a
widow or widower may not exceed the difference
between--
(A) the amount of the annuity which would
otherwise be payable to such widow or widower
under this section; and
(B) the amount of the annuity payable to
any former spouse of the deceased employee,
Member, or annuitant, or former employee or
Member, based on an election made under section
8417(b) or a court order previously issued or
agreement previously entered into as described
in section 8445(a).
(2) The amount payable under subsection (b)(1)(A)
to a widow or widower may not exceed the difference
between--
(A) the amount which would otherwise be
payable to such widow or widower under such
subsection; and
(B) the portion of such amount payable to
any former spouse of the deceased employee,
Member, or annuitant, or former employee or
Member, based on a court order previously
issued or agreement previously entered into.
(3) A lump-sum credit under subsection (c)(2) shall
be subject to the same terms and conditions as apply
with respect to a lump-sum credit under section
8424(b).
Sec. 8443. Rights of a child
(a)(1) If an employee or Member dies after completing at
least 18 months of civilian service which is creditable under
section 8411, or an annuitant dies, each surviving child is,
for any month, entitled to an annuity equal to--
(A) the amount by which the applicable amount under
paragraph (2) for such month exceeds the applicable
amount under paragraph (3) for such month, divided by
(B) the number of children entitled to a payment
under this section for such month.
(2) The applicable amount under this paragraph for any
month is the total amount to which the surviving child or
children (as the case may be) of the annuitant, employee, or
Member would be entitled for such month under subchapter III of
chapter 83 (including any adjustment based on section 8340)
based on the service of such annuitant, employee, or Member, if
the service of such annuitant, employee, or Member were
creditable under such subchapter.
(3) The applicable amount under this paragraph for any
month is the total amount of child's insurance benefits which
are payable (or would, on proper application, be payable) under
title II of the Social Security Act for such month based on the
wages and self-employment income of such annuitant, employee,
or Member.
(b) The annuity of a child under this subchapter--
(1) commences on the day after the annuitant,
employee, or Member dies;
(2) commences or resumes on the first day of the
month in which the child later becomes or again becomes
a student as described by section 8441(4), if any lump
sum paid is returned to the Fund; or
(3) commences or resumes on the first day of the
month in which the child later becomes or again becomes
incapable of self-support because of a mental or
physical disability incurred before age 18 (or a later
recurrence of such disability), if any lump sum paid is
returned to the Fund.
This annuity and the right thereto terminate on the last day of
the month before the child--
(A) becomes 18 years of age unless then a student
as described or incapable of self-support;
(B) becomes capable of self-support after becoming
18 years of age unless then such a student;
(C) becomes 22 years of age if then such a student
and capable of self-support;
(D) ceases to be such a student after becoming 18
years of age unless then incapable of self-support; or
(E) dies or marries;
whichever occurs first. On the death of the surviving wife or
husband, or former wife or husband, or termination of the
annuity of a child, the annuity of any other child or children
shall be recomputed and paid as though the wife or husband,
former wife or husband, or child had not survived the
annuitant, employee, or Member. If the annuity of a child under
this subchapter terminates under subparagraph (E) because of
marriage, then, if such marriage ends, such annuity shall
resume on the first day of the month in which it ends, but only
if any lump sum paid is returned to the Fund, and that
individual is not otherwise ineligible for such annuity.
Sec. 8444. Rights of a named individual with an insurable interest
The annuity of a survivor named under section 8420(a) is 55
percent of the reduced annuity of the retired employee or
Member determined under paragraph (2) of such section 8420(a).
The annuity of the survivor commences on the day after the
retired employee or Member dies. This annuity and the right
thereto terminate on the last day of the month before the
survivor dies.
Sec. 8445. Rights of a former spouse
(a) Subject to subsections (b) through (e), a former spouse
of a deceased employee, Member, or annuitant (or of a former
employee or Member who dies after having separated from the
service with title to a deferred annuity under section 8413 but
before having established a valid claim for annuity) is
entitled to an annuity under this section, if and to the extent
expressly provided for in an election under section 8417(b), or
in the terms of any decree of divorce or annulment or any court
order or court-approved property settlement agreement incident
to such decree.
(b)(1) The annuity payable to a former spouse under this
section may not exceed the difference between--
(A) the amount applicable in the case of such
former spouse, as determined under paragraph (2); and
(B) the amount of any annuity payable under this
section to any other former spouse of the employee,
Member, or annuitant, or former employee or Member,
based on an election previously made under section
8417(b), or a court order previously issued or
agreement previously entered into as described in
subsection (a).
(2) The applicable amount, for purposes of paragraph (1)(A)
in the case of a former spouse, is the amount of the annuity
which would be payable under the provisions of section 8442
(including subsection (f) of such section, but without regard
to subsection (h) of such section) if such former spouse were a
widow or widower entitled to an annuity under such provisions
based on the service of the deceased employee, Member, or
annuitant, or former employee or Member.
(c) The commencement and termination of an annuity payable
under this section shall be governed by the terms of the
applicable order, decree, agreement, or election, as the case
may be, except that any such annuity--
(1) shall not commence before--
(A) the day after the employee, Member, or
annuitant, or former employee or Member, dies;
or
(B) the first day of the second month
beginning after the date on which the Office
receives written notice of the order, decree,
agreement, or election, as the case may be,
together with such additional information or
documentation as the Office may prescribe;
whichever is later; and
(2) except as provided in subsection (h), shall
terminate no later than the last day of the month
before the former spouse remarries before becoming 55
years of age or dies.
(d) For purposes of this chapter, a modification in a
decree, order, agreement, or election referred to in subsection
(a) shall not be effective--
(1) if such modification is made after the
retirement or death of the employee, Member, or
annuitant, or former employee or Member, concerned; and
(2) to the extent that such modification involves
an annuity under this section.
(e) For purposes of this chapter, a decree, order,
agreement, or election referred to in subsection (a) shall not
be effective, in the case of a former spouse, to the extent
that it is inconsistent with any joint waiver previously
executed with respect to such former spouse under section
8416(a).
(f)(1) Any amount under section 8442(b)(1)(A) which would
otherwise be payable to a widow or widower based on the service
of another individual shall be paid (in whole or in part) by
the Office to a former spouse of such individual if and to the
extent expressly provided for in the terms of a court decree of
divorce, annulment, or legal separation, or the terms of a
court order or court-approved property settlement incident to
any decree of divorce, annulment, or legal separation.
(2) Paragraph (1) shall apply only to payments made by the
Office after the date of receipt in the Office of written
notice of such decree, order, or agreement, and such additional
information and documentation as the Office may prescribe.
(g) Any payment under this section to a person bars
recovery by any other person.
(h)(1) Subsection (c)(2) (to the extent that it provides
for termination of a survivor annuity because of a remarriage
before age 55) shall not apply if the former spouse was married
for at least 30 years to the individual on whose service the
survivor annuity is based.
(2) A remarriage described in paragraph (1) shall not be
taken into account for purposes of section 8419(b)(1)(B) or any
other provision of this chapter which the Office may by
regulation identify in order to carry out the purposes of this
subsection.
SUBCHAPTER V--DISABILITY BENEFITS
Sec. 8451. Disability retirement
(a)(1)(A) An employee who completes at least 18 months of
civilian service creditable under section 8411 and has become
disabled shall be retired on the employee's own application or
on application by the employee's agency.
(B) For purposes of this subsection, an employee shall be
considered disabled only if the employee is found by the Office
to be unable, because of disease or injury, to render useful
and efficient service in the employee's position.
(2)(A) Notwithstanding paragraph (1), an employee shall not
be eligible for disability retirement under this section if the
employee has declined a reasonable offer of reassignment to a
vacant position in the employee's agency for which the employee
is qualified if the position--
(i) is at the same grade (or pay level) as the
employee's most recent grade (or pay level) or higher;
(ii) is within the employee's commuting area; and
(iii) is one in which the employee would be able to
render useful and efficient service.
(B) An employee who is applying for disability retirement
under this subchapter shall be considered for reassignment by
the employee's agency to a vacant position described in
subparagraph (A) in accordance with such procedures as the
Office shall by regulation prescribe.
(C) An employee is entitled to appeal to the Merit Systems
Protection Board under section 7701 any determination that the
employee is not unable, because of disease or injury, to render
useful and efficient service in a position to which the
employee has declined reassignment under this section.
(D) For purposes of subparagraph (A), an employee of the
United States Postal Service shall not be considered qualified
for a position if such position is in a different craft or if
reassignment to such position would be inconsistent with the
terms of a collective- bargaining agreement covering the
employee.
(b) A Member who completes at least 18 months of service as
a Member and is found by the Office to be disabled for useful
and efficient service as a Member because of disease or injury
shall be retired on the Member's own application.
(c) An employee or Member retiring under this section is
entitled to an annuity computed under section 8452.
Sec. 8452. Computation of disability annuity
(a)(1)(A) Except as provided in paragraph (2), or
subsection (b), (c), or (d), the annuity of an annuitant under
this subchapter--
(i) for the period beginning on the date on which
such annuity commences, or is restored (as described in
section 8455(b) (2) or (3)), and ending at the end of
the twelfth month beginning on or after such date,
shall be equal to 60 percent of the annuitant's average
pay; and
(ii) after the end of the period referred to in
clause (i), shall be equal to 40 percent of the
annuitant's average pay.
(B) An annuity computed under this paragraph--
(i) shall not, during any period referred to in
subparagraph (A)(i), be adjusted under section 8462;
but
(ii) shall, after the end of any period referred to
in subparagraph (A)(i), be adjusted to reflect all
adjustments made under section 8462(b) after the end of
the period referred to in subparagraph (A)(i), whether
the amount actually payable to the annuitant under this
section in any month is determined under this
subsection or otherwise.
(2)(A) For any month in which an annuitant is entitled both
to an annuity under this subchapter as computed under paragraph
(1) and to a disability insurance benefit under section 223 of
the Social Security Act, the annuitant's annuity for such month
(as so computed) shall--
(i) if such month occurs during a period referred
to in paragraph (1)(A)(i), be reduced by 100 percent of
the annuitant's assumed disability insurance benefit
for such month; or
(ii) if such month occurs other than during a
period referred to in paragraph (1)(A)(i), be reduced
by 60 percent of the annuitant's assumed disability
insurance benefit for such month;
except that an annuity may not be reduced below zero by reason
of this paragraph.
(B)(i) For purposes of this paragraph, the assumed
disability insurance benefit of an annuitant for any month
shall be equal to--
(I) the amount of the disability insurance benefit
to which the annuitant is entitled under section 223 of
the Social Security Act for the month in which the
annuity under this subchapter commences, or is
restored, or, if no entitlement to such disability
insurance benefits exists for such month, the first
month thereafter for which the annuitant is entitled
both to an annuity under this subchapter and disability
insurance benefits under section 223 of the Social
Security Act, adjusted by
(II) all adjustments made under section 8462(b)
after the end of the period referred to in paragraph
(1)(A)(i) (or, if later, after the end of the month
preceding the first month for which the annuitant is
entitled both to an annuity under this subchapter and
disability insurance benefits under section 223 of the
Social Security Act) and before the start of the month
involved (without regard to whether the annuitant's
annuity was affected by any of those adjustments.)
For purposes of computing the assumed disability insurance
benefit, the month in which the annuitant's disability began
(as determined under section 216(i)(2)(C) of the Social
Security Act) shall be the month in which the annuity commenced
or, if earlier (and if a determination was actually made) the
month determined under such section.
(ii) For purposes of applying section 224 of the Social
Security Act to the assumed disability insurance benefit used
to compute the reduction under this paragraph, the amount of
the annuity under this subchapter which is considered shall be
the amount of the annuity as determined before the application
of this paragraph.
(3) Section 8462 shall apply with respect to amounts under
this subsection only as provided in paragraphs (1) and (2).
(b)(1) Except as provided in subsection (d), if an
annuitant is entitled to an annuity under this subchapter as of
the day before the date of the sixty-second anniversary of the
annuitant's birth (hereinafter in this section referred to as
the annuitant's ``redetermination date''), such annuity shall
be redetermined by the Office in accordance with paragraph (2).
Effective as of the annuitant's redetermination date, the
annuity (as so redetermined) shall be in lieu of any annuity to
which such annuitant would otherwise be entitled under this
subchapter.
(2)(A) An annuity redetermined under this subsection shall
be equal to the amount of the annuity to which the annuitant
would be entitled under section 8415, taking into account the
provisions of subparagraph (B).
(B) In performing a computation under this paragraph--
(i) creditable service of an annuitant shall be
increased by including any period (or periods) before
the annuitant's redetermination date during which the
annuitant was entitled to an annuity under this
subchapter; and
(ii) the average pay which would otherwise be used
shall be adjusted to reflect all adjustments made under
section 8462(b) with respect to any period (or periods)
referred to in clause (i) (without regard to whether
the annuitant's annuity was affected by any of those
adjustments).
(c) Except as provided in subsection (d), the annuity of an
annuitant under this subchapter shall be computed under section
8415 if--
(1) such annuity commences, or is restored,
beginning on or after the redetermination date of the
annuitant; or
(2) as of the day on which such annuity commences,
or is restored, the annuitant satisfies the age and
service requirements for entitlement to an annuity
under section 8412 (other than subsection (g) of such
section).
(d)(1) The annuity to which an annuitant is entitled under
this section (after the reduction under subsection (a)(2), if
applicable, has been made) shall not be less than the amount of
an annuity computed under section 8415 (excluding subsection
(f) of such section).
(2) In applying this subsection with respect to any
annuitant, the amount of an annuity so computed under section
8415 shall be adjusted under section 8462 (including subsection
(c) thereof)--
(A) to the same extent, and otherwise in the same
manner, as if it were an annuity--
(i) subject to adjustment under such
section; and
(ii) with a commencement date coinciding
with the date the annuitant's annuity commenced
or was restored under this subchapter, as the
case may be; and
(B) whether the amount actually payable to the
annuitant under this section in any month is determined
under this subsection or otherwise.
Sec. 8453. Application
A claim may be allowed under this subchapter only if
application is filed with the Office before the employee or
Member is separated from the service or within 1 year
thereafter. This time limitation may be waived by the Office
for an employee or Member who, at the date of separation from
service or within 1 year thereafter, is mentally incompetent if
the application is filed with the Office within 1 year from the
date of restoration of the employee or Member to competency or
the appointment of a fiduciary, whichever is earlier.
Sec. 8454. Medical examination
An annuitant receiving a disability retirement annuity from
the Fund shall be examined under the direction of the Office--
(1) at the end of 1 year from the date of the
disability retirement; and
(2) annually thereafter until becoming 60 years of
age;
unless the disability is permanent in character. If the
annuitant fails to submit to examination as required by this
section, payment of the annuity shall be suspended until
continuance of the disability is satisfactorily established.
Sec. 8455. Recovery; restoration of earning capacity
(a)(1) If an annuitant receiving a disability retirement
annuity from the Fund recovers from the disability before
becoming 60 years of age, payment of the annuity terminates on
reemployment by the Government or 1 year after the date on
which the Office determines that the annuitant has recovered,
whichever is earlier.
(2) If an annuitant receiving a disability annuity from the
Fund, before becoming 60 years of age, is restored to an
earning capacity fairly comparable to the current rate of pay
of the position occupied at the time of retirement, payment of
the annuity terminates 180 days after the end of the calendar
year in which earning capacity is so restored. Earning capacity
is deemed restored if in any calendar year the income of the
annuitant from wages or self-employment or both equals at least
80 percent of the current rate of pay of the position occupied
immediately before retirement.
(b)(1) If an annuitant whose annuity is terminated under
subsection (a) is not reemployed in a position in which that
individual is subject to this chapter, such individual is
deemed, except for service credit, to have been involuntarily
separated from the service for the purpose of subchapter II of
this chapter as of the date of termination of the disability
annuity, and after that termination is entitled to annuity
under the applicable provisions of such subchapter.
(2) If an annuitant whose annuity is terminated under
subsection (a)(2)--
(A) is not reemployed in a position subject to this
chapter; and
(B) has not recovered from the disability for which
that individual was retired;
the annuity of such individual shall be restored at the
applicable rate under section 8452 effective the first of the
year following any calendar year in which such individual's
income from wages or self-employment or both is less than 80
percent of the current rate of pay of the position occupied
immediately before retirement.
(3) If an annuitant whose annuity is terminated because of
a medical finding that the individual has recovered from
disability is not reemployed in a position in which such
individual is subject to this chapter, the annuity of such
individual shall be restored at the applicable rate under
section 8452 effective from the date on which the Office
determines that there has been a recurrence of the disability.
(4) Paragraphs (2) and (3) shall not apply in the case of
an annuitant receiving an annuity from the Fund under
subchapter II of this chapter.
Sec. 8456. Military reserve technicians
(a)(1) Except as provided in paragraph (2) or (3), an
individual shall be retired under this subchapter if the
individual--
(A) is separated from employment as a military
reserve technician by reason of a disability that
disqualifies the individual from membership in a
reserve component of the Armed Forces specified in
section 10101 of title 10 or from holding the military
grade required for such employment;
(B) is not considered to be disabled under section
8451(a)(1)(B);
(C) is not appointed to a position in the
Government (whether under subsection (b) or otherwise);
and
(D) has not declined an offer of an appointment to
a position in the Government under subsection (b).
(2) Payment of any annuity for an individual pursuant to
this section terminates--
(A) on the date the individual is appointed to a
position in the Government (whether pursuant to
subsection (b) or otherwise);
(B) on the date the individual declines an offer of
appointment to a position in the Government under
subsection (b); or
(C) as provided under section 8455(a).
(3) An individual eligible to retire under section 8414(c)
shall not be eligible to retire under this section.
(b) Any individual applying for or receiving any annuity
pursuant to this section shall, in accordance with regulations
prescribed by the Office, be considered by any agency of the
Government before any vacant position in the agency is filled
if--
(1) the position is located within the commuting
area of the individual's former position;
(2) the individual is qualified to serve in such
position, as determined by the head of the agency; and
(3) the position is at the same grade or equivalent
level as the position from which the individual was
separated.
SUBCHAPTER VI--GENERAL AND ADMINISTRATIVE PROVISIONS
Sec. 8461. Authority of the Office of Personnel Management
(a) The Office shall pay all benefits that are payable
under subchapter II, IV, V, or VI of this chapter from the
Fund.
(b) The Office shall administer all provisions of this
chapter not specifically required to be administered by the
Board, the Executive Director, the Secretary of Labor, or any
other officer or agency.
(c) The Office shall adjudicate all claims under the
provisions of this chapter administered by the Office.
(d) The Office shall determine questions of disability and
dependency arising under the provisions of this chapter
administered by the Office. Except to the extent provided under
subsection (e), the decisions of the Office concerning these
matters are final and conclusive and are not subject to review.
The Office may direct at any time such medical or other
examinations as it considers necessary to determine the facts
concerning disability or dependency of an individual receiving
or applying for annuity under the provisions of this chapter
administered by the Office. The Office may suspend or deny
annuity for failure to submit to examination.
(e)(1) Subject to paragraph (2), an administrative action
or order affecting the rights or interests of an individual or
of the United States under the provisions of this chapter
administered by the Office may be appealed to the Merit Systems
Protection Board under procedures prescribed by the Board.
(2) In the case of any individual found by the Office to be
disabled in whole or in part on the basis of the individual's
mental condition, and that finding was made pursuant to an
application by an agency for purposes of disability retirement
under section 8451, the procedures under section 7701 shall
apply and the decision of the Board shall be subject to
judicial review under section 7703.
(f) The Office shall fix the fees for examinations made
under subchapter V of this chapter by physicians or surgeons
who are not medical officers of the United States. The fees and
reasonable traveling and other expenses incurred in connection
with the examinations are paid from appropriations for the cost
of administering the provisions of this chapter administered by
the Office.
(g) The Office may prescribe regulations to carry out the
provisions of this chapter administered by the Office.
(h)(1) Each Government agency shall furnish the Director
with such information as the Director determines necessary in
order to administer this chapter.
(2) The Director, in consultation with the officials from
whom such information is requested, shall establish (by
regulation or otherwise) such safeguards as are necessary to
ensure that information made available under this subsection is
used only for the purpose authorized.
(i) In making a determination of ``actuarial equivalence''
under this chapter, the economic assumptions used shall be the
same as the economic assumptions most recently used by the
Office (before the determination of actuarial equivalence
involved) in determining the normal-cost percentage of the
System.
(j)(1) Notwithstanding any other provision of this chapter,
the Director of Central Intelligence shall, in a manner
consistent with the administration of this chapter by the
Office, and to the extent considered appropriate by the
Director of Central Intelligence--
(A) determine entitlement to benefits under this
chapter based on the service of employees of the
Central Intelligence Agency;
(B) maintain records relating to the service of
such employees;
(C) compute benefits under this chapter based on
the service of such employees;
(D) collect deposits to the Fund made by such
employees, their spouses, their former spouses, and
their survivors;
(E) authorize and direct disbursements from the
Fund to the extent based on service of such employees;
and
(F) perform such other functions under this chapter
(other than under subchapters III and VII of this
chapter) with respect to employees of the Central
Intelligence Agency as the Director of Central
Intelligence, in consultation with the Director of the
Office of Personnel Management, determines to be
appropriate.
(2) The Director of the Office of Personnel Management
shall furnish such information and, on a reimbursable basis,
such services to the Director of Central Intelligence as the
Director of Central Intelligence requests to carry out
paragraph (1).
(k)(1) The Director of Central Intelligence, in
consultation with the Executive Director of the Federal
Retirement Thrift Investment Board, may--
(A) maintain exclusive records relating to
elections, contributions, and accounts under the Thrift
Savings Plan provided in subchapter III of this chapter
in the case of employees of the Central Intelligence
Agency;
(B) provide that contributions by, or on behalf of,
such employees to the Thrift Savings Plan be accounted
for by such Executive Director in aggregate amounts;
(C) make the necessary disbursements from, and the
necessary allocations of earnings, losses, and charges
to, individual accounts of such employees under the
Thrift Savings Plan; and
(D) perform such other functions under subchapters
III and VII of this chapter (but not including
investing sums in the Thrift Savings Fund) with respect
to employees of the Central Intelligence Agency as the
Director of Central Intelligence, in consultation with
the Executive Director of the Federal Retirement Thrift
Investment Board, determines to be appropriate.
(2) The Executive Director of the Federal Retirement Thrift
Investment Board may not exercise authority under this chapter
in the case of employees of the Central Intelligence Agency to
the extent that the Director of Central Intelligence exercises
authority provided in paragraph (1).
(3) The Executive Director of the Federal Retirement Thrift
Investment Board shall furnish such information and, on a
reimbursable basis, such services to the Director of Central
Intelligence as the Director of Central Intelligence determines
necessary to carry out this subsection.
(l) Subsection (h)(1), and sections 8439(b) and 8474(c)(4),
shall be applied with respect to information relating to
employees of the Central Intelligence Agency in a manner that
protects intelligence sources, methods, and activities.
(m)(1) The Director of Central Intelligence, in
consultation with the Director of the Office of Personnel
Management and the Executive Director of the Federal Retirement
Thrift Investment Board, shall by regulation prescribe
appropriate procedures to carry out subsections (j), (k), and
(l).
(2) The regulations shall provide procedures for the
Director of the Office of Personnel Management to inspect and
audit disbursements from the Fund under this chapter.
(3) The Director of Central Intelligence shall submit the
regulations prescribed under paragraph (1) to the Select
Committee on Intelligence of the Senate and the Permanent
Select Committee on Intelligence of the House of
Representatives before the regulations take effect.
(n)(1) Under regulations prescribed by the Office, an
employee who--
(A) \1\ has not previously made an election
under this subsection or had an opportunity to
make an election under this paragraph;
---------------------------------------------------------------------------
\1\ So in original. The margin of this subparagraph probably should
be moved 2 ems to the left.
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(B) has 5 more years of civilian service creditable
under this chapter; and
(C) moves, without a break in service of more than
1 year, to employment in a nonappropriated fund
instrumentality of the Department of Defense or the
Coast Guard, respectively, described in section
2105(c),
shall be given the opportunity to elect irrevocably, within 30
days after such move, to remain covered as an employee under
this chapter during any employment described in section 2105(c)
after such move.
(2) Under regulations prescribed by the Office, an employee
of a nonappropriated fund instrumentality of the Department of
Defense or the Coast Guard described in section 2105(c), who--
(A) \1\ has not previously made an election
under this subsection or had an opportunity to
make an election under this paragraph;
(B) is a vested participant in a retirement system
established for employees described in section 2105(c),
as the term ``vested participant'' is defined by such
system;
(C) moves, without a break in service of more than
1 year, to a position that is not described by section
2105(c); and
(D) is not eligible to make an election under
section 8347(q),
shall be given the opportunity to elect irrevocably, within 30
days after such move, to remain covered, during any subsequent
employment as an employee as defined by section 2105(a) or
section 2105(c), by the retirement system applicable to such
employee's current or most recent employment described by
section 2105(c) rather than be subject to this chapter.
Sec. 8462. Cost-of-living adjustments
(a) For the purpose of this section--
(1) the term ``base quarter'', as used with respect
to a year, means the calendar quarter ending on
September 30 of such year;
(2) the price index for a base quarter is the
arithmetical mean of such index for the 3 months
comprising such quarter; and
(3) the term ``percent change in the price index'',
as used with respect to a year, means the percentage
derived by--
(A) reducing--
(i) the price index for the base
quarter of such year, by
(ii) the price index for the base
quarter of the preceding year in which
an adjustment under this subsection was
made;
(B) dividing the difference under
subparagraph (A) by the price index referred to
in subparagraph (A)(ii); and
(C) multiplying the quotient under
subparagraph (B) by 100.
(b)(1) Except as provided in subsection (c), effective
December 1 of any year in which an adjustment under this
subsection is to be made, as determined under paragraph (2),
each annuity payable from the Fund under this chapter (other
than an annuity under section 8443) having a commencing date
not later than such December 1 shall be adjusted as follows:
(A) If the percent change in the price index for
the year does not exceed 3 percent, each annuity
subject to adjustment under this subsection shall be
increased by the lesser of--
(i) the percent change in the price index
(rounded to the nearest one-tenth of 1
percent); or
(ii) 2 percent.
(B) If the percent change in the price index for
the year exceeds 3 percent, each annuity subject to
adjustment under this subsection shall be increased by
the excess of--
(i) the percent change in the price index
(rounded to the nearest one-tenth of 1
percent), over
(ii) 1 percent.
(2) An adjustment under this subsection shall be made in a
year only if the price index for the base quarter of such year
exceeds the price index for the base quarter of the preceding
year in which an adjustment under this subsection was made.
(3) An annuity under this chapter shall not be subject to
adjustment under section 8340. Nothing in the preceding
sentence shall affect the computation of any amount under
section 8443(a)(2).
(c) Eligibility for an annuity increase under this section
is governed by the commencing date of each annuity payable from
the Fund as of the effective date of an increase, except as
follows:
(1) The first increase (if any) made under
subsection (b) to an annuity which is payable from the
Fund to an annuitant or survivor (other than a child
under section 8443) whose annuity has not been
increased under this subsection or subsection (b) shall
be equal to the product (adjusted to the nearest one-
tenth of 1 percent) of--
(A) one-twelfth of the applicable percent
change computed under subsection (b),
multiplied by
(B) the number of months (not to exceed 12
months, counting any portion of a month as a
month)--
(i) for which the annuity was
payable from the Fund before the
effective date of the increase; or
(ii) in the case of a survivor of a
deceased annuitant whose annuity has
not been so increased, since the
annuity was first payable to the
deceased annuitant.
(2) Effective from its commencing date, an annuity
payable from the Fund to an annuitant's survivor (other
than a widow or widower whose annuity is computed under
section 8442(g) or a child under section 8443) shall be
increased by the total percentage by which the deceased
annuitant's annuity had been increased under this
section during the period beginning on the date the
deceased annuitant's annuity commenced and ending on
the date of the deceased annuitant's death.
(3)(A) An adjustment under subsection (b) for any
year shall not be effective with respect to the annuity
of an annuitant who is under 62 years of age as of the
date on which such adjustment would otherwise first
take effect.
(B)(i) Except as provided in clause (ii), this
paragraph applies only with respect to an annuitant
under section 8412, 8413, or 8414.
(ii) This paragraph does not apply with respect to
an annuitant under subsection (d) or (e) of section
8412 or (in the case of an annuitant separated from
service as a military reserve technician as a result of
disability) under section 8414(c).
(4) The first increase (if any) made under
subsection (b) to an annuity which is payable from the
Fund to a widow or widower whose annuity is computed
under section 8442(g) shall be equal to the product
(adjusted to the nearest one-tenth of 1 percent) of--
(A) one-twelfth of the applicable percent
change computed under subsection (b),
multiplied by
(B) the number of months (not to exceed 12
months, counting any portion of a month as a
month) since--
(i) the effective date of the
adjustment last made under this section
in the annuity of the annuitant on
whose service on the widow's or
widower's annuity is based; or
(ii) if the annuity of the
annuitant (referred to in clause (i))
has not been increased under this
section, the commencement date of such
annuitant's annuity (determined subject
to section 8452(a)(1)(B)).
(d) The monthly installment of an annuity after adjustment
under this section shall be rounded to the next lowest dollar.
However, the monthly installment shall, after adjustment,
reflect an increase of at least $1.
(e) The $15,000 amount referred to in section
8442(b)(1)(A)(ii) shall be increased at the same time that, and
by the same percent as the percentage by which, annuities under
subchapter III of chapter 83 are increased.
Sec. 8463. Rate of benefits
Each annuity payable from the Fund is stated as an annual
amount, one-twelfth of which, rounded to the next lower dollar,
constitutes the monthly rate payable on the first business day
of the first month beginning after the month for which it has
accrued.
Sec. 8464. Commencement and termination of annuities of employees and
Members
(a)(1) Except as otherwise provided in this chapter--
(A) an annuity payable from the Fund commences on
the first day of the month after--
(i) separation from the service, in the
case of an employee or Member retiring under
section 8412, or subsection (a), (b)(1)(B), or
(d) \1\ of section 8414; or
---------------------------------------------------------------------------
\1\ Section 1152(c)(2) of the Floyd D. Spence National Defense
Authorization Act for Fiscal Year 2001 (as enacted by section 1 of
Public Law 106-398; 114 Stat. 1654A-323) amended this clause by
striking out ``or (b)(1)(B)'' and ``, (b)(1)(B), or (d)''. The
amendment was carried out by striking ``or (b)(1)(B)'' and inserting
``, (b)(1)(B), or (d)'' to reflect the probable intent of Congress.
---------------------------------------------------------------------------
(ii) pay ceases, and the applicable age and
service requirements are met, in the case of an
employee or Member retiring under section 8413;
(B) an annuity payable from the Fund commences on
the day after separation from the service in the case
of an employee retiring under subsection (b)(1)(A) or
(c) of section 8414; and
(C) an annuity payable from the Fund commences on
the day after separation from the service or the day
after pay ceases and the requirements for title to an
annuity are met in the case of an employee or Member
retiring under section 8451.
(2) Notwithstanding paragraph (1)(A)(i), an annuity payable
from the Fund commences on the day after separation from the
service in the case of an employee or Member--
(A) who retires under section 8412; and
(B) whose separation occurs upon the expiration of
a term (or other period) for which the individual was
appointed or elected.
(b) Except as otherwise provided in this chapter, the
annuity of an annuitant under subchapter II or V of this
chapter terminates on the date death or other terminating event
occurs.
Sec. 8464a. Relationship between annuity and workers' compensation
(a)(1) An individual is not entitled to receive--
(A) an annuity under subchapter II or V, and
(B) compensation for injury to, or disability of,
such individual under subchapter I of chapter 81, other
than compensation payable under section 8107,
covering the same period of time.
(2) An individual is not entitled to receive an annuity
under subchapter IV and a concurrent benefit under subchapter I
of chapter 81 on account of the death of the same person.
(3) Paragraphs (1) and (2) do not bar the right of a
claimant to the greater benefit conferred by either this
chapter or subchapter I of chapter 81.
(b) If an individual is entitled to an annuity under
subchapter II, IV, or V, and the individual receives a lump-sum
payment for compensation under section 8135 based on the
disability or death of the same person, so much of the
compensation as has been paid for a period extended beyond the
date payment of the annuity commences, as determined by the
Department of Labor, shall be refunded to that Department for
credit to the Employees' Compensation Fund. Before the
individual may receive the annuity, the individual shall--
(1) refund to the Department of Labor the amount
representing the commuted compensation payments for the
extended period; or
(2) authorize the deduction of the amount from the
annuity.
Deductions from the annuity may be made from accrued or
accruing payments. The amounts deducted and withheld from the
annuity shall be transmitted to the Department of Labor for
reimbursement to the Employees' Compensation Fund. When the
Department of Labor finds that the financial circumstances of
an individual entitled to an annuity under subchapter II, IV,
or V warrant deferred refunding, deductions from the annuity
may be prorated against and paid from accruing payments in such
manner as the Department determines appropriate.
Sec. 8465. Waiver, allotment, and assignment of benefits
(a) An individual entitled to an annuity payable from the
Fund may decline to accept all or any part of the amount of the
annuity by a waiver signed and filed with the Office. The
waiver may be revoked in writing at any time. Payment of the
annuity waived may not be made for the period during which the
waiver is in effect.
(b) An individual entitled to an annuity payable from the
Fund may make allotments or assignments of amounts from the
annuity for such purposes as the Office considers appropriate.
Sec. 8466. Application for benefits
(a) No payment of benefits based on the service of an
employee or Member shall be made from the Fund unless an
application for payment of the benefits is received by the
Office before the one hundred and fifteenth anniversary of the
birth of the employee or Member.
(b) Notwithstanding subsection (a), after the death of an
employee, Member, or annuitant, or former employee or Member, a
benefit based on the service of such employee, Member, or
annuitant, or former employee or Member, shall not be paid
under subchapter II or IV of this chapter unless an application
therefor is received by the Office within 30 years after the
death or other event which establishes the entitlement to the
benefit.
(c) Payment due a minor, or an individual mentally
incompetent or under other legal disability, may be made to the
person who is constituted guardian or other fiduciary by the
law of the State of residence of the claimant or is otherwise
legally vested with the care of the claimant or his estate. If
a guardian or other fiduciary of the individual under legal
disability has not been appointed under the law of the State of
residence of the claimant, payment may be made to any person
who, in the judgment of the Office, is responsible for the care
of the claimant, and the payment bars recovery by any other
person.
Sec. 8467. Court orders
(a) Payments under this chapter which would otherwise be
made to an employee, Member, or annuitant (including an
employee, Member, or annuitant as defined in section 8331)
based on service of that individual shall be paid (in whole or
in part) by the Office or the Executive Director, as the case
may be, to another person if and to the extent expressly
provided for in the terms of--
(1) any court decree of divorce, annulment, or
legal separation, or the terms of any court order or
court-approved property settlement agreement incident
to any court decree of divorce, annulment, or legal
separation; or
(2) any court order or other similar process in the
nature of garnishment for the enforcement of a judgment
rendered against such employee, Member, or annuitant,
for physically, sexually, or emotionally abusing a
child.
In the event that the Office or the Executive Director, as the
case may be, is served with more than 1 decree, order, or other
legal process with respect to the same moneys due or payable to
any individual, such moneys shall be available to satisfy such
processes on a first-come, first-served basis, with any such
process being satisfied out of such moneys as remain after the
satisfaction of all such processes which have been previously
served.
(b) Subsection (a) shall apply only to payments made by the
Office or the Executive Director under this chapter after the
date on which the Office or the Executive Director (as the case
may be) receives written notice of such decree, order, other
legal process, or agreement, and such additional information
and documentation as the Office or the Executive Director may
require.
(c) For the purpose of this section--
(1) the term ``judgment rendered for physically,
sexually, or emotionally abusing a child'' means any
legal claim perfected through a final enforceable
judgment, which claim is based in whole or in part upon
the physical, sexual, or emotional abuse of a child,
whether or not that abuse is accompanied by other
actionable wrongdoing, such as sexual exploitation or
gross negligence; and
(2) the term ``child'' means an individual under 18
years of age.
Sec. 8468. Annuities and pay on reemployment
(a) If an annuitant, except a disability annuitant whose
annuity is terminated because of the annuitant's recovery or
restoration of earning capacity, becomes employed in an
appointive or elective position, an amount equal to the annuity
allocable to the period of actual employment shall be deducted
from the annuitant's pay, except for lump-sum leave payment
purposes under section 5551. Unless the annuitant's appointment
is on an intermittent basis or is to a position as a justice or
judge (as defined by section 451 of title 28) or as an employee
subject to another retirement system for Government employees,
or unless the annuitant is serving as President, deductions for
the Fund shall be withheld from the annuitant's pay under
section 8422(a) and contributions under section 8423 shall be
made. The deductions and contributions referred to in the
preceding provisions of this subsection shall be deposited in
the Treasury of the United States to the credit of the Fund.
The annuitant's lump-sum credit may not be reduced by annuity
paid during the reemployment.
(b)(1)(A) If an annuitant subject to deductions under the
second sentence of subsection (a) serves on a full-time basis
for a least 1 year, or on a part-time basis for periods
equivalent to at least 1 year of full-time service, the
annuitant's annuity on termination of reemployment shall be
increased by an annuity computed under section 8415 (a) through
(g) as may apply based on the period of reemployment and the
basic pay, before deduction, averaged during the reemployment.
(B)(i) If the annuitant is receiving a reduced annuity as
provided in section 8419, the increase in annuity payable under
subparagraph (A) is reduced by 10 percent and the survivor
annuity or combination of survivor annuities payable under
section 8442 or 8445 (or both) is increased by 50 percent of
the increase in annuity payable under subparagraph (A), unless,
at the time of claiming the increase payable under subparagraph
(A), the annuitant notifies the Office in writing that the
annuitant does not desire the survivor annuity to be increased.
(ii) If an annuitant who is subject to the deductions
referred to in subparagraph (A) dies while still reemployed,
after having been reemployed for not less than 1 year of full-
time service (or the equivalent thereof, in the case of full-
time employment), the survivor annuity payable is increased as
though the reemployment had otherwise terminated.
(2)(A) If an annuitant subject to deductions under the
second sentence of subsection (a) serves on a full-time basis
for at least 5 years, or on a part-time basis for periods
equivalent to at least 5 years of full-time service, the
annuitant may elect, instead of the benefit provided by
paragraph (1), to have such annuitant's rights redetermined
under this chapter.
(B) If an annuitant who is subject to the deductions
referred to in subparagraph (A) dies while still reemployed,
after having been reemployed for at least 5 years of full-time
service (or the equivalent thereof in the case of part-time
employment), any person entitled to a survivor annuity under
section 8442 or 8445 based on the service of such annuitant
shall be permitted to elect, in accordance with regulations
prescribed by the Office of Personnel Management, to have such
person's rights under subchapter IV redetermined. A
redetermined survivor annuity elected under this subparagraph
shall be in lieu of an increased annuity which would otherwise
be payable in accordance with paragraph (1)(B)(ii).
(3) If an annuitant subject to deductions under the second
sentence of subsection (a) serves on a full-time basis for a
period of less than 1 year, or on a part-time basis for periods
equivalent to less than 1 year of full-time service, the total
amount withheld under section 8422(a) from the annuitant's
basic pay for the period or periods involved shall, upon
written application to the Office, be payable to the annuitant
(or the appropriate survivor or survivors, determined in the
order set forth in section 8424(d)).
(c) This section does not apply to an individual appointed
to serve as a Governor of the Board of Governors of the United
States Postal Service.
(d) If an annuitant becomes employed as a justice or judge
of the United States, as defined by section 451 of title 28,
the annuitant may, at any time prior to resignation or
retirement from regular active service as such a justice or
judge, apply for and be paid, in accordance with section
8424(a), the amount (if any) by which the lump-sum credit
exceeds the total annuity paid, notwithstanding the time
limitation contained in such section for filing an application
for payment.
(e) A reference in this section to an ``annuity'' shall not
be considered to include any amount payable from a source other
than the Fund.
(f)(1) The Director of the Office of Personnel Management
may, at the request of the head of an Executive agency--
(A) waive the application of the preceding
provisions of this section on a case-by-case basis for
employees in positions for which there is exceptional
difficulty in recruiting or retaining a qualified
employee; or
(B) grant authority to the head of such agency to
waive the application of the preceding provisions of
this section, on a case-by-case basis, for an employee
serving on a temporary basis, but only if, and for so
long as, the authority is necessary due to an emergency
involving a direct threat to life or property or other
unusual circumstances.
(2) The Office shall prescribe regulations for the exercise
of any authority under this subsection, including criteria for
any exercise of authority and procedures for terminating a
delegation of authority under paragraph (1)(B).
(g)(1) If warranted by circumstances described in
subsection (f)(1) (A) or (B) (as applicable), the Director of
the Administrative Office of the United States Courts shall,
with respect to an employee in the judicial branch, have the
same waiver authority as would be available to the Director of
the Office of Personnel Management, or a duly authorized agency
head, under subsection (f) with respect to an employee of an
Executive agency.
(2) Authority under this subsection may not be exercised
with respect to a justice or judge of the United States, as
defined in section 451 of title 28.
(h)(1) If warranted by circumstances described in
subsection (f)(1) (A) or (B) (as applicable), an official or
committee designated in paragraph (2) shall, with respect to
the employees specified in the applicable subparagraph of such
paragraph, have the same waiver authority as would be available
to the Director of the Office of Personnel Management, or a
duly authorized agency head, under subsection (f) with respect
to an employee of an Executive agency.
(2) Authority under this subsection may be exercised--
(A) with respect to an employee of an agency in the
legislative branch, by the head of such agency;
(B) with respect to an employee of the House of
Representatives, by the Committee on House Oversight of
the House of Representatives; and
(C) with respect to an employee of the Senate, by
the Committee on Rules and Administration of the
Senate.
(3) Any exercise of authority under this subsection shall
be in conformance with such written policies and procedures as
the agency head, the Committee on House Oversight of the House
of Representatives, or the Committee on Rules and
Administration of the Senate (as applicable) shall prescribe,
consistent with the provisions of this subsection.
(4) For the purpose of this subsection, ``agency in the
legislative branch'', ``employee of the House of
Representatives'', ``employee of the Senate'', and
``congressional employee'' each has the meaning given to it in
section 5531 of this title.
(i)(1) For the purpose of subsections (f) through (h),
``Executive agency'' shall not include the General Accounting
Office.
(2) An employee as to whom a waiver under subsection (f),
(g), or (h) is in effect shall not be considered an employee
for purposes of this chapter or chapter 83 of this title.
Sec. 8469. Withholding of State income taxes
(a) The Office shall, in accordance with this section,
enter into an agreement with any State within 120 days of a
request for agreement from the proper State official. The
agreement shall provide that the Office shall withhold State
income tax in the case of the monthly annuity of any annuitant
who voluntarily requests, in writing, such withholding. The
amounts withheld during any calendar quarter shall be held in
the Fund and disbursed to the States during the month following
that calendar quarter.
(b) An annuitant may have in effect at any time only one
request for withholding under this section, and an annuitant
may not have more than two such requests in effect during any
one calendar year.
(c) Subject to subsection (b), an annuitant may change the
State designated by that annuitant for purposes of having
withholdings made, and may request that the withholdings be
remitted in accordance with such change. An annuitant also may
revoke any request of that annuitant for withholding. Any
change in the State designated or revocation is effective on
the first day of the month after the month in which the request
or the revocation is processed by the Office, but in no event
later than on the first day of the second month beginning after
the day on which such request or revocation is received by the
Office.
(d) This section does not give the consent of the United
States to the application of a statute which imposes more
burdensome requirements on the United States than on employers
generally, or which subjects the United States or any annuitant
to a penalty or liability because of this section. The Office
may not accept pay from a State for services performed in
withholding State income taxes from annuities. Any amount
erroneously withheld from an annuity and paid to a State by the
Office shall be repaid by the State in accordance with
regulations issued by the Office.
(e) For the purpose of this section--
(1) the term ``State'' means a State, the District
of Columbia, or any territory or possession of the
United States; and
(2) the term ``annuitant'' includes a survivor who
is receiving an annuity from the Fund.
Sec. 8470. Exemption from legal process; recovery of payments
(a) An amount payable under subchapter II, IV, or V of this
chapter is not assignable, either in law or equity, except
under the provisions of section 8465 or 8467, or subject to
execution, levy, attachment, garnishment or other legal
process, except as otherwise may be provided by Federal laws.
(b) Recovery of payments under subchapter II, IV, or V of
this chapter may not be made from an individual when, in the
judgment of the Office, the individual is without fault and
recovery would be against equity and good conscience.
Withholding or recovery of money paid under subchapter II, IV,
or V of this chapter on account of a certification or payment
made by a former employee of the United States in the discharge
of his official duties may be made only if the head of the
agency on behalf of which the certification or payment was made
certifies to the Office that the certification or payment
involved fraud on the part of the former employee.
SUBCHAPTER VII--FEDERAL RETIREMENT THRIFT INVESTMENT MANAGEMENT SYSTEM
Sec. 8471. Definitions
For the purposes of this subchapter--
(1) the term ``beneficiary'' means an individual
(other than a participant) entitled to payment from the
Thrift Savings Fund under subchapter III of this
chapter;
(2) the term ``Council'' means the Employee Thrift
Advisory Council established under section 8473 of this
title;
(3) the term ``participant'' means an individual
for whom an account has been established under section
8439 of this title;
(4) the term ``person'' means an individual,
partnership, joint venture, corporation, mutual
company, joint-stock company, trust, estate,
unincorporated organization, association, or labor
organization; and
(5) the term ``Thrift Savings Fund'' means the
Thrift Savings Fund established under section 8437 of
this title.
Sec. 8472. Federal Retirement Thrift Investment Board
(a) There is established in the Executive branch of the
Government a Federal Retirement Thrift Investment Board.
(b) The Board shall be composed of--
(1) 3 members appointed by the President, of whom 1
shall be designated by the President as Chairman; and
(2) 2 members appointed by the President, of whom--
(A) 1 shall be appointed by the President
after taking into consideration the
recommendation made by the Speaker of the House
of Representatives in consultation with the
minority leader of the House of
Representatives; and
(B) 1 shall be appointed by the President
after taking into consideration the
recommendation made by the majority leader of
the Senate in consultation with the minority
leader of the Senate.
(c) Except as provided in section 311 of the Federal
Employees' Retirement System Act of 1986, appointments under
subsection (a) shall be made by and with the advice and consent
of the Senate.
(d) Members of the Board shall have substantial experience,
training, and expertise in the management of financial
investments and pension benefit plans.
(e)(1) Except as provided in section 311 of the Federal
Employees' Retirement System Act of 1986, a member of the Board
shall be appointed for a term of 4 years, except that of the
members first appointed (other than the members appointed under
such section)--
(A) the Chairman shall be appointed for a term of 4
years;
(B) the members appointed under subsection (b)(2)
shall be appointed for terms of 3 years; and
(C) the remaining members shall be appointed for
terms of 2 years.
(2)(A) A vacancy on the Board shall be filled in the manner
in which the original appointment was made and shall be subject
to any conditions which applied with respect to the original
appointment.
(B) An individual chosen to fill a vacancy shall be
appointed for the unexpired term of the member replaced.
(3) The term of any member shall not expire before the date
on which the member's successor takes office.
(f) The Board shall--
(1) establish policies for--
(A) the investment and management of the
Thrift Savings Fund; and
(B) the administration of subchapter III of
this chapter;
(2) review the performance of investments made for
the Thrift Savings Fund; and
(3) review and approve the budget of the Board.
(g)(1) The Board may--
(A) adopt, alter, and use a seal;
(B) except as provided in paragraph (2), direct the
Executive Director to take such action as the Board
considers appropriate to carry out the provisions of
this subchapter and subchapter III of this chapter and
the policies of the Board;
(C) upon the concurring votes of four members,
remove the Executive Director from office for good
cause shown; and
(D) take such other actions as may be necessary to
carry out the functions of the Board.
(2) Except in the case of investments required by section
8438 of this title to be invested in securities of the
Government, the Board may not direct the Executive Director to
invest or to cause to be invested any sums in the Thrift
Savings Fund in a specific asset or to dispose of or cause to
be disposed of any specific asset of such Fund.
(h) The members of the Board shall discharge their
responsibilities solely in the interest of participants and
beneficiaries under this subchapter and subchapter III of this
chapter.
(i) The Board shall prepare and submit to the President,
and, at the same time, to the appropriate committees of
Congress, an annual budget of the expenses and other items
relating to the Board which shall be included as a separate
item in the budget required to be transmitted to the Congress
under section 1105 of title 31.
(j) The Board may submit to the President, and, at the same
time, shall submit to each House of Congress, any legislative
recommendations of the Board relating to any of its functions
under this title or any other provision of law.
Sec. 8473. Employee Thrift Advisory Council
(a) The Board shall establish an Employee Thrift Advisory
Council. The Council shall be composed of 15 members \1\
appointed by the Chairman of the Board in accordance with
subsection (b).
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\1\ For the effective date of the amendments made to section 8473
by section 661(a)(6) of the National Defense Authorization Act for
Fiscal Year 2000 (Public Law 106-65; 113 Stat. 672) see section 663 set
out as a footnote at the end of section 8440e.
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(b) The Chairman shall appoint 15 members \1\ of the
Council, of whom--
(1) 4 shall be appointed to represent the
respective labor organizations representing (as
exclusive representatives) the first, second, third,
and fourth largest numbers of individuals subject to
chapter 71 of this title;
(2) 2 shall be appointed to represent the
respective labor organizations which have been accorded
exclusive recognition under section 1203(a) of title 39
representing the largest and second largest numbers of
individuals employed by the United States Postal
Service;
(3) 1 shall be appointed to represent the labor
organization which has been accorded exclusive
recognition under section 1203(a) of title 39
representing the largest number of individuals employed
by the United States Postal Service as rural letter
carriers;
(4) 2 shall be appointed to represent the
respective managerial organizations (other than an
organization described in paragraph (5)) which consult
with the United States Postal Service under section
1004(b) of title 39 and which represent the largest and
second largest numbers of individuals employed by the
United States Postal Service as managerial personnel;
(5) 1 shall be appointed to represent the
supervisors' organization as defined in section 1004(h)
of title 39;
(6) 1 shall be appointed to represent employee
organizations having as a purpose promoting the
interests of women in Government service;
(7) 1 shall be appointed to represent the
organization representing the largest number of
individuals receiving annuities under this chapter or
chapter 83 of this title;
(8) 1 shall be appointed to represent the
organization representing the largest number of
supervisors and management officials (as defined by
section 7103(a)); \1\
(9) 1 shall be appointed to represent the
organization representing the largest number of members
of the Senior Executive Service; and \1\
(10) 1 shall be appointed to represent participants
(under section 8440e) who are members of the uniformed
services. \1\
(c)(1) The Chairman of the Board shall designate 1 member
of the Council to serve as head of the Council.
(2) A member of the Council shall be appointed for a term
of 4 years.
(3)(A) A vacancy in the Council shall be filled in the
manner in which the original appointment was made and shall be
subject to any conditions which applied with respect to the
original appointment.
(B) An individual chosen to fill a vacancy shall be
appointed for the unexpired term of the member replaced.
(C) The term of any member shall not expire before the date
on which the member's successor takes office.
(d) The Council shall act by resolution of a majority of
the members.
(e) The Council shall--
(1) advise the Board and the Executive Director on
matters relating to--
(A) investment policies for the Thrift
Savings Fund; and
(B) the administration of this subchapter
and subchapter III of this chapter; and
(2) perform such other duties as the Board may
direct with respect to investment funds established in
accordance with subchapter III of this chapter.
(f) Section 14(a)(2) of the Federal Advisory Committee Act
shall not apply to the Council.
Sec. 8474. Executive Director
(a)(1) The Board shall appoint, without regard to the
provisions of law governing appointments in the competitive
service, an Executive Director by action agreed to by a
majority of the members of the Board.
(2) The Executive Director shall have substantial
experience, training, and expertise in the management of
financial investments and pension benefit plans.
(b) The Executive Director shall--
(1) carry out the policies established by the
Board;
(2) invest and manage the Thrift Savings Fund in
accordance with the investment policies and other
policies established by the Board;
(3) purchase annuity contracts and provide for the
payment of other benefits under subchapter III of this
chapter;
(4) administer the provisions of this subchapter
and subchapter III of this chapter;
(5) prescribe such regulations (other than
regulations relating to fiduciary responsibilities) as
may be necessary for the administration of this
subchapter and subchapter III of this chapter; and
(6) meet from time to time with the Council upon
request of the Council.
(c) The Executive Director may--
(1) prescribe such regulations as may be necessary
to carry out the responsibilities of the Executive
Director under this section, other than regulations
relating to fiduciary responsibilities;
(2) appoint such personnel as may be necessary to
carry out the provisions of this subchapter and
subchapter III of this chapter;
(3) subject to approval by the Board, procure the
services of experts and consultants under section 3109
of this title;
(4) secure directly from an Executive agency, the
United States Postal Service, or the Postal Rate
Commission any information necessary to carry out the
provisions of this subchapter or subchapter III of this
chapter and policies of the Board;
(5) make such payments out of sums in the Thrift
Savings Fund as the Executive Director determines are
necessary to carry out the provisions of this
subchapter and subchapter III of this chapter and the
policies of the Board;
(6) pay the compensation, per diem, and travel
expenses of individuals appointed under paragraphs (2),
(3), and (7) of this subsection from the Thrift Savings
Fund;
(7) accept and use the services of individuals
employed intermittently in the Government service and
reimburse such individuals for travel expenses, as
authorized by section 5703 of this title, including per
diem as authorized by section 5702 of this title;
(8) except as otherwise expressly prohibited by law
or the policies of the Board, delegate any of the
Executive Director's functions to such employees under
the Board as the Executive Director may designate and
authorize such successive redelegations of such
functions to such employees under the Board as the
Executive Director may consider to be necessary or
appropriate; and
(9) take such other actions as are appropriate to
carry out the functions of the Executive Director.
Sec. 8475. Investment policies
The Board shall develop investment policies under section
8472(f)(1) of this title which provide for--
(1) prudent investments suitable for accumulating
funds for payment of retirement income; and
(2) low administrative costs.
Sec. 8476. Administrative provisions
(a) The Board shall meet--
(1) not less than once during each month; and
(2) at additional times at the call of the
Chairman.
(b)(1) Except as provided in sections 8472(g)(1)(C) and
8474(a)(1) of this title, the Board shall perform the functions
and exercise the powers of the Board on a majority vote of a
quorum of the Board.
(2) A vacancy on the Board shall not impair the authority
of a quorum of the Board to perform the functions and exercise
the powers of the Board.
(c) Three members of the Board shall constitute a quorum
for the transaction of business.
(d)(1) Each member of the Board who is not an officer or
employee of the Federal Government shall be compensated at the
daily rate of basic pay for level IV of the Executive Schedule
for each day during which such member is engaged in performing
a function of the Board.
(2) A member of the Board shall be paid travel, per diem,
and other necessary expenses under subchapter I of chapter 57
of this title while traveling away from such member's home or
regular place of business in the performance of the duties of
the Board.
(3) Payments authorized under this subsection shall be paid
from the Thrift Savings Fund.
(e) The accrued annual leave of any employee who is a
member of the Board or the Council shall not be charged for any
time used in performing services for the Board or the Council.
Sec. 8477. Fiduciary responsibilities; liability and penalties
(a) For the purposes of this section--
(1) the term ``account'' is not limited by the
definition provided in section 8401(1);
(2) the term ``adequate consideration'' means--
(A) in the case of a security for which
there is a generally recognized market--
(i) the price of the security
prevailing on a national securities
exchange which is registered under
section 6 of the Securities Exchange
Act of 1934; or
(ii) if the security is not traded
on such a national securities exchange,
a price not less favorable to the
Thrift Savings Fund than the offering
price for the security as established
by the current bid and asked prices
quoted by persons independent of the
issuer and of any party in interest;
and
(B) in the case of an asset other than a
security for which there is a generally
recognized market, the fair market value of the
asset as determined in good faith by a
fiduciary or fiduciaries in accordance with
regulations prescribed by the Secretary of
Labor;
(3) the term ``fiduciary'' means--
(A) a member of the Board;
(B) the Executive Director;
(C) any person who has or exercises
discretionary authority or discretionary
control over the management or disposition of
the assets of the Thrift Savings Fund; and
(D) any person who, with respect to the
Thrift Savings Fund, is described in section
3(21)(A) of the Employee Retirement Income
Security Act of 1974 (29 U.S.C. 1002(21)(A));
and
(4) the term ``party in interest'' includes--
(A) any fiduciary;
(B) any counsel to a person who is a
fiduciary, with respect to the actions of such
person as a fiduciary;
(C) any participant;
(D) any person providing services to the
Board and, with respect to the actions of the
Executive Director as a fiduciary any person
providing services to the Executive Director;
(E) a labor organization, the members of
which are participants;
(F) a spouse, sibling, ancestor, lineal
descendant, or spouse of a lineal descendant of
a person described in subparagraph (A), (B), or
(D);
(G) a corporation, partnership, or trust or
estate of which, or in which, at least 50
percent of--
(i) the combined voting power of
all classes of stock entitled to vote
or the total value of shares of all
classes of stock of such corporation;
(ii) the capital interest or
profits interest of such partnership;
or
(iii) the beneficial interest of
such trust or estate;
is owned directly or indirectly, or held by a
person described in subparagraph (A), (B), (D),
or (E);
(H) an official (including a director) of,
or an individual employed by, a person
described in subparagraph (A), (B), (D), (E),
or (G), or an individual having powers or
responsibilities similar to those of such an
official;
(I) a holder (directly or indirectly) of at
least 10 percent of the shares in a person
described in any subparagraph referred to in
subparagraph (H); and
(J) a person who, directly or indirectly,
is at least a 10 percent partner or joint
venturer (measured in capital or profits) in a
person described in any subparagraph referred
to in subparagraph (H).
(b)(1) To the extent not inconsistent with the provisions
of this chapter and the policies prescribed by the Board, a
fiduciary shall discharge his responsibilities with respect to
the Thrift Savings Fund or applicable portion thereof solely in
the interest of the participants and beneficiaries and--
(A) for the exclusive purpose of--
(i) providing benefits to participants and
their beneficiaries; and
(ii) defraying reasonable expenses of
administering the Thrift Savings Fund or
applicable portions thereof;
(B) with the care, skill, prudence, and diligence
under the circumstances then prevailing that a prudent
individual acting in a like capacity and familiar with
such matters would use in the conduct of an enterprise
of a like character and with like objectives; and
(C) to the extent permitted by section 8438 of this
title, by diversifying the investments of the Thrift
Savings Fund or applicable portions thereof so as to
minimize the risk of large losses, unless under the
circumstances it is clearly prudent not to do so.
(2) No fiduciary may maintain the indicia of ownership of
any assets of the Thrift Savings Fund outside the jurisdiction
of the district courts of the United States.
(c)(1) A fiduciary shall not permit the Thrift Savings Fund
to engage in any of the following transactions, except in
exchange for adequate consideration:
(A) A transfer of any assets of the Thrift Savings
Fund to any person the fiduciary knows or should know
to be a party in interest or the use of such assets by
any such person.
(B) An acquisition of any property from or sale of
any property to the Thrift Savings Fund by any person
the fiduciary knows or should know to be a party in
interest.
(C) A transfer or exchange of services between the
Thrift Savings Fund and any person the fiduciary knows
or should know to be a party in interest.
(2) Notwithstanding paragraph (1), a fiduciary with respect
to the Thrift Savings Fund shall not--
(A) deal with any assets of the Thrift Savings Fund
in his own interest or for his own account;
(B) act, in an individual capacity or any other
capacity, in any transaction involving the Thrift
Savings Fund on behalf of a party, or representing a
party, whose interests are adverse to the interests of
the Thrift Savings Fund or the interests of its
participants or beneficiaries; or
(C) receive any consideration for his own personal
account from any party dealing with sums credited to
the Thrift Savings Fund in connection with a
transaction involving assets of the Thrift Savings
Fund.
(3)(A) The Secretary of Labor may, in accordance with
procedures which the Secretary shall by regulation prescribe,
grant a conditional or unconditional exemption of any fiduciary
or transaction, or class of fiduciaries or transactions, from
all or part of the restrictions imposed by paragraph (2).
(B) An exemption granted under this paragraph shall not
relieve a fiduciary from any other applicable provision of this
chapter.
(C) The Secretary of Labor may not grant an exemption under
this paragraph unless he finds that such exemption is--
(i) administratively feasible;
(ii) in the interests of the Thrift Savings Fund
and of its participants and beneficiaries; and
(iii) protective of the rights of participants and
beneficiaries of such Fund.
(D) An exemption under this paragraph may not be granted
unless--
(i) notice of the proposed exemption is published
in the Federal Register;
(ii) interested persons are given an opportunity to
present views; and
(iii) the Secretary of Labor affords an opportunity
for a hearing and makes a determination on the record
with respect to the respective requirements of clauses
(i), (ii), and (iii) of subparagraph (C).
(E) Notwithstanding subparagraph (D), the Secretary of
Labor may determine that an exemption granted for any class of
fiduciaries or transactions under section 408(a) of the
Employee Retirement Income Security Act of 1974 shall, upon
publication of notice in the Federal Register under this
subparagraph, constitute an exemption for purposes of the
provisions of paragraph (2).
(d) This section does not prohibit any fiduciary from--
(1) receiving any benefit which the fiduciary is
entitled to receive under this subchapter or subchapter
III of this chapter as a participant or beneficiary;
(2) receiving any reasonable compensation
authorized by this subchapter for services rendered, or
for reimbursement of expenses properly and actually
incurred, in the performance of the fiduciary's duties
under this chapter; or
(3) serving as a fiduciary in addition to being an
officer, employee, agent, or other representative of a
party in interest.
(e)(1)(A) Any fiduciary that breaches the responsibilities,
duties, and obligations set out in subsection (b) or violates
subsection (c) shall be personally liable to the Thrift Savings
Fund for any losses to such Fund resulting from each such
breach or violation and to restore to such Fund any profits
made by the fiduciary through use of assets of such Fund by the
fiduciary, and shall be subject to such other equitable or
remedial relief as a court considers appropriate, except as
provided in paragraphs (3) and (4) of this subsection. A
fiduciary may be removed for a breach referred to in the
preceding sentence.
(B) The Secretary of Labor may assess a civil penalty
against a party in interest with respect to each transaction
which is engaged in by the party in interest and is prohibited
by subsection (c). The amount of such penalty shall be equal to
5 percent of the amount involved in each such transaction (as
defined in section 4975(f)(4) of the Internal Revenue Code of
1986) for each year or part thereof during which the prohibited
transaction continues, except that, if the transaction is not
corrected (in such manner as the Secretary of Labor shall
prescribe by regulation consistent with section 4975(f)(5) of
such Code) within 90 days after the date the Secretary of Labor
transmits notice to the party in interest (or such longer
period as the Secretary of Labor may permit), such penalty may
be in an amount not more than 100 percent of the amount
involved.
(C) A fiduciary shall not be liable under subparagraph (A)
with respect to a breach of fiduciary duty under subsection (b)
committed before becoming a fiduciary or after ceasing to be a
fiduciary.
(D) A fiduciary shall be jointly and severally liable under
subparagraph (A) for a breach of fiduciary duty under
subsection (b) by another fiduciary only if--
(i) the fiduciary participates knowingly in, or
knowingly undertakes to conceal, an act or omission of
such other fiduciary, knowing such act or omission is
such a breach;
(ii) by the fiduciary's failure to comply with
subsection (b) in the administration of the fiduciary's
specific responsibilities which give rise to the
fiduciary status, the fiduciary has enabled such other
fiduciary to commit such a breach; or
(iii) the fiduciary has knowledge of a breach by
such other fiduciary, unless the fiduciary makes
reasonable efforts under the circumstances to remedy
the breach.
(E) The Secretary of Labor shall prescribe, in regulations,
procedures for allocating fiduciary responsibilities among
fiduciaries, including investment managers. Any fiduciary who,
pursuant to such procedures, allocates to a person or persons
any fiduciary responsibility shall not be liable for an act or
omission of such person or persons unless--
(i) such fiduciary violated subsection (b) with
respect to the allocation, with respect to the
implementation of the procedures prescribed by the
Secretary of Labor (or the Board under section 114 of
the Federal Employees' Retirement System Technical
Corrections Act of 1986), or in continuing such
allocation; or
(ii) such fiduciary would otherwise be liable in
accordance with subparagraph (D).
(2) No civil action may be maintained against any fiduciary
with respect to the responsibilities, liabilities, and
penalties authorized or provided for in this section except in
accordance with paragraphs (3) and (4).
(3) A civil action may be brought in the district courts of
the United States--
(A) by the Secretary of Labor against any fiduciary
other than a Member of the Board or the Executive
Director of the Board--
(i) to determine and enforce a liability
under paragraph (1)(A);
(ii) to collect any civil penalty under
paragraph (1)(B);
(iii) to enjoin any act or practice which
violates any provision of subsection (b) or
(c);
(iv) to obtain any other appropriate
equitable relief to redress a violation of any
such provision; or
(v) to enjoin any act or practice which
violates subsection (g)(2) or (h) of section
8472 of this title;
(B) by any participant, beneficiary, or fiduciary
against any fiduciary--
(i) to enjoin any act or practice which
violates any provision of subsection (b) or
(c);
(ii) to obtain any other appropriate
equitable relief to redress a violation of any
such provision;
(iii) to enjoin any act or practice which
violates subsection (g)(2) or (h) of section
8472 of this title; or
(C) by any participant or beneficiary--
(i) to recover benefits of such participant
or beneficiary under the provisions of
subchapter III of this chapter, to enforce any
right of such participant or beneficiary under
such provisions, or to clarify any such right
to future benefits under such provisions; or
(ii) to enforce any claim otherwise
cognizable under sections 1346(b) and 2671
through 2680 of title 28, provided that the
remedy against the United States provided by
sections 1346(b) and 2672 of title 28 for
damages for injury or loss of property caused
by the negligent or wrongful act or omission of
any fiduciary while acting within the scope of
his duties or employment shall be exclusive of
any other civil action or proceeding by the
participant or beneficiary for recovery of
money by reason of the same subject matter
against the fiduciary (or the estate of such
fiduciary) whose act or omission gave rise to
such action or proceeding, whether or not such
action or proceeding is based on an alleged
violation of subsection (b) or (c).
(4)(A) In all civil actions under paragraph (3)(A),
attorneys appointed by the Secretary may represent the
Secretary (except as provided in section 518(a) of title 28),
however all such litigation shall be subject to the direction
and control of the Attorney General.
(B) The Attorney General shall defend any civil action or
proceeding brought in any court against any fiduciary referred
to in paragraph (3)(C)(ii) (or the estate of such fiduciary)
for any such injury. Any fiduciary against whom such a civil
action or proceeding is brought shall deliver, within such time
after date of service or knowledge of service as determined by
the Attorney General, all process served upon such fiduciary
(or an attested copy thereof) to the Executive Director of the
Board, who shall promptly furnish copies of the pleading and
process to the Attorney General and the United States Attorney
for the district wherein the action or proceeding is brought.
(C) Upon certification by the Attorney General that a
fiduciary described in paragraph (3)(C)(ii) was acting in the
scope of such fiduciary's duties or employment as a fiduciary
at the time of the occurrence or omission out of which the
action arose, any such civil action or proceeding commenced in
a State court shall be--
(i) removed without bond at any time before trial
by the Attorney General to the district court of the
United States for the district and division in which it
is pending; and
(ii) deemed a tort action brought against the
United States under the provisions of title 28 and all
references thereto.
(D) The Attorney General may compromise or settle any claim
asserted in such civil action or proceeding in the manner
provided in section 2677 of title 28, and with the same effect.
To the extent section 2672 of title 28 provides that persons
other than the Attorney General or his designee may compromise
and settle claims, and that payment of such claims may be made
from agency appropriations, such provisions shall not apply to
claims based upon an alleged violation of subsection (b) or
(c).
(E) For the purposes of paragraph (3)(C)(ii) the provisions
of section 2680(h) of title 28 shall not apply to any claim
based upon an alleged violation of subsection (b) or (c).
(F) Notwithstanding sections 1346(b) and 2671 through 2680
of title 28, whenever an award, compromise, or settlement is
made under such sections upon any claim based upon an alleged
violation of subsection (b) or (c), payment of such award,
compromise, or settlement shall be made to the appropriate
account within the Thrift Savings Fund, or where there is no
such appropriate account, to the participant or beneficiary
bringing the claim.
(G) For purposes of paragraph (3)(C)(ii), fidicuiary
includes only the Members of the Board and the Board's
Executive Director.
(5) Any relief awarded against a Member of the Board or the
Executive Director of the Board in a civil action authorized by
paragraph (3) may not include any monetary damages or any other
recovery of money.
(6) An action may not be commenced under paragraph (3)(A)
or (B) with respect to a fiduciary's breach of any
responsibility, duty, or obligation under subsection (b) or a
violation of subsection (c) after the earlier of--
(A) 6 years after (i) the date of the last action
which constituted a part of the breach or violation, or
(ii) in the case of an omission, the latest date on
which the fiduciary could have cured the breach or
violation; or
(B) 3 years after the earliest date on which the
plaintiff had actual knowledge of the breach or
violation, except that, in the case of fraud or
concealment, such action may be commenced not later
than 6 years after the date of discovery of such breach
or violation.
(7)(A) The district courts of the United States shall
have exclusive jurisdiction of civil actions under this
subsection.
(B) An action under this subsection may be brought in the
District Court of the United States for the District of
Columbia or a district court of the United States in the
district where the breach alleged in the complaint or petition
filed in the action took place or in the district where a
defendant resides or may be found. Process may be served in any
other district where a defendant resides or may be found.
(8)(A) A copy of the complaint or petition filed in any
action brought under this subsection (other than by the
Secretary of Labor) shall be served on the Executive Director,
the Secretary of Labor, and the Secretary of the Treasury by
certified mail.
(B) Any officer referred to in subparagraph (A) of this
paragraph shall have the right in his discretion to intervene
in any action. If the Secretary of Labor brings an action under
paragraph (2) of this subsection on behalf of a participant or
beneficiary, he shall notify the Executive Director and the
Secretary of the Treasury.
(f) The Secretary of Labor may prescribe regulations to
carry out this section.
(g)(1) The Secretary of Labor shall establish a program
to carry out audits to determine the level of compliance with
the requirements of this section relating to fiduciary
responsibilities and prohibited activities of fiduciaries.
(2) An audit under this subsection may be conducted by
the Secretary of Labor, by contract with a qualified non-
governmental organization, or in cooperation with the
Comptroller General of the United States, as the Secretary
considers appropriate.
Sec. 8478. Bonding
(a)(1) Except as provided in paragraph (2), each fiduciary
and each person who handles funds or property of the Thrift
Savings Fund shall be bonded as provided in this section.
(2)(A) Bond shall not be required of a fiduciary (or of any
officer or employee of such fiduciary) if such fiduciary--
(i) is a corporation organized and doing business
under the laws of the United States or of any State;
(ii) is authorized under such laws to exercise
trust powers or to conduct an insurance business;
(iii) is subject to supervision or examination by
Federal or State authority; and
(iv) has at all times a combined capital and
surplus in excess of such minimum amount (not less than
$1,000,000) as the Secretary of Labor prescribes in
regulations.
(B) If--
(i) a bank or other financial institution would,
but for this subparagraph, not be required to be bonded
under this section by reason of the application of the
exception provided in subparagraph (A),
(ii) the bank or financial institution is
authorized to exercise trust powers, and
(iii) the deposits of the bank or financial
institution are not insured by the Federal Deposit
Insurance Corporation,
such exception shall apply to such bank or financial
institution only if the bank or institution meets bonding
requirements under State law which the Secretary of Labor
determines are at least equivalent to those imposed on banks by
Federal law.
(b)(1) The Secretary of Labor shall prescribe the amount of
a bond under this section at the beginning of each fiscal year.
Except as otherwise provided in this paragraph, such amount
shall not be less than 10 percent of the amount of funds
handled. In no case shall such bond be less than $1,000 nor
more than $500,000, except that the Secretary of Labor, after
due notice and opportunity for hearing to all interested
parties, and other consideration of the record, may prescribe
an amount in excess of $500,000.
(2) For the purpose of prescribing the amount of a bond
under paragraph (1), the amount of funds handled shall be
determined by reference to the amount of the funds handled by
the person, group, or class to be covered by such bond or by
their predecessor or predecessors, if any, during the preceding
fiscal year, or to the amount of funds to be handled during the
current fiscal year by such person, group, or class, estimated
as provided in regulations prescribed by the Secretary of
Labor.
(c) A bond required by subsection (a)--
(1) shall include such terms and conditions as the
Secretary of Labor considers necessary to protect the
Thrift Savings Fund against loss by reason of acts of
fraud or dishonesty on the part of the bonded person
directly or through connivance with others;
(2) shall have as surety thereon a corporate surety
company which is an acceptable surety on Federal bonds
under authority granted by the Secretary of the
Treasury pursuant to sections 9304 through 9308 of
title 31; and
(3) shall be in a form or of a type approved by the
Secretary of Labor, including individual bonds or
schedule or blanket forms of bonds which cover a group
or class.
(d)(1) It shall be unlawful for any person to whom
subsection (a) applies, to receive, handle, disburse, or
otherwise exercise custody or control of any of the funds or
other property of the Thrift Savings Fund without being bonded
as required by this section.
(2) It shall be unlawful for any fiduciary, or any other
person having authority to direct the performance of functions
described in paragraph (1), to permit any such function to be
performed by any person to whom subsection (a) applies unless
such person has met the requirements of such subsection.
(e) Notwithstanding any other provision of law, any person
who is required to be bonded as provided in subsection (a)
shall be exempt from any other provision of law which would,
but for this subsection, require such person to be bonded for
the handling of the funds or other property of the Thrift
Savings Fund.
(f) The Secretary of Labor shall prescribe such regulations
as may be necessary to carry out the provisions of this
section, including exempting a person or class of persons from
the requirements of this section.
Sec. 8478a. Investigative authority
Any authority available to the Secretary of Labor under
section 504 of the Employee Retirement Income Security Act of
1974 is hereby made available to the Secretary of Labor, and
any officer designated by the Secretary of Labor, to determine
whether any person has violated, or is about to violate, any
provision of section 8477 or 8478.
Sec. 8479. Exculpatory provisions; insurance
(a) Any provision in an agreement or instrument which
purports to relieve a fiduciary from responsibility or
liability for any responsibility, obligation, or duty under
this subchapter shall be void.
(b)(1) The Executive Director may require employing
agencies to contribute an amount not to exceed 1 percent of the
amount such agencies are required to contribute in accordance
with section 8432(c) of this title to the Thrift Savings Fund.
(2) The sums credited to the Thrift Savings Fund under
paragraph (1) shall be available and may be used at the
discretion of the Executive Director to purchase insurance to
cover potential liability of persons who serve in a fiduciary
capacity with respect to the Thrift Savings Fund, without
regard to whether a policy of insurance permits recourse by the
insurer against the fiduciary in the case of a breach of a
fiduciary obligation.
NOTE:
See also sections 301, 302, and 303 of Public Law 99-335 (June 6,
1986), as amended by sections 301 and 302 of Public Law 99-556 (October
27, 1986) and sections 106, 107, 113, 118, 119, and 134 of Public Law
100-238 (January 8, 1988) which provide:
SEC. 301. ELECTIONS.
(a) Elections for Individuals Subject to the Civil Service
Retirement System.--(1)(A) Any individual (other than an individual
under subsection (b)) who, as of June 30, 1987, is employed by the
Federal Government, and who is then subject to subchapter III of
chapter 83 of title 5, United States Code, may elect to become subject
to chapter 84 of such title.
(B) An election under this paragraph may not be made before July 1,
1987, or after December 31, 1987.
(2)(A) Any individual who, after June 30, 1987, becomes reemployed
by the Federal Government, and who is then subject to subchapter III of
chapter 83 of title 5, United States Code, may elect to become subject
to chapter 84 of such title.
(B) An election under this paragraph shall not be effective unless
it is made during the six-month period beginning on the date on which
reemployment commences.
(3)(A) Except as provided in subparagraph (B), any individual--
(i) who is excluded from the operation of subchapter III of
chapter 83 of title 5, United States Code, under subsection
(g), (i), (j), or (l) of section 8347 of such title, and,
(ii) with respect to whom chapter 84 of title 5, United
States Code, does not apply because of section 8402(b)(2) of
such title,
shall, for purposes of an election under paragraph (1) or (2), be
treated as if such individual were subject to subchapter III of chapter
83 of title 5, United States Code.
(B) An election under this paragraph may not be made by any
individual who would be excluded from the operation of chapter 84 of
title 5, United States Code, under section 8402(c) of such title
(relating to exclusions based on the temporary or intermittent nature
of one's employment).
(4) A member of the Foreign Service described in section 103(6) of
the Foreign Service Act of 1980 shall be ineligible to make any
election under this subsection.
(b) Elections for Certain Individuals Serving Continuously Since
December 31, 1983.--The following rules shall apply in the case of any
individual described in section 8402(b)(1) of title 5, United States
Code:
(1) If, as of December 31, 1986, the individual is subject
to subchapter III of chapter 83 of title 5, United States Code,
but is not subject to section 204 of the Federal Employees'
Retirement Contribution Temporary Adjustment Act of 1983, the
individual shall remain so subject to such subchapter unless
the individual elects, after June 30, 1987, and before January
1, 1988--
(A) to become subject to such subchapter under the
same terms and conditions as apply in the case of an
individual described in section 8402(b)(2) of such
title who is subject to such subchapter; or
(B) to become subject to chapter 84 of such title.
An individual eligible to make an election under this paragraph
may make the election described in subparagraph (A) or (B), but
not both.
(2) If, as of December 31, 1986, the individual is subject
to subchapter III of chapter 83 of title 5, United States Code,
and is also subject to section 204 of the Federal Employees'
Retirement Contribution Temporary Adjustment Act of 1983, the
individual--
(A) shall, as of January 1, 1987, become subject to
such subchapter under the same terms and conditions as
apply in the case of an individual described in section
8402(b)(2) of such title who is subject to such
subchapter; and
(B) may (during the six-month period described in
subsection (a)(1)(B)) elect to become subject to
chapter 84 of such title.
(3)(A) If, as of December 31, 1986, the individual is not subject
to subchapter III of chapter 83 of title 5, United States Code, such
individual may, during the six-month period described in subsection
(a)(1)(B)--
(i) elect to become subject to chapter 84 of such title; or
(ii) if such individual has not since made an election
described in subparagraph (B), elect to become subject to
subchapter III of chapter 83 of such title under the same terms
and conditions as apply in the case of an individual described
in section 8402(b)(2) of such title who is subject to such
subchapter.
(B) Nothing in this paragraph shall be considered to preclude the
individual from electing to become subject to subchapter III of chapter
83 of such title pursuant to notification under section 8331(2) of such
title--
(i) during the period after December 31, 1986, and before
July 1, 1987; or
(ii) after December 31, 1987, if such individual has not
since become subject to subchapter III of chapter 83, or
chapter 84, of such title.
(c) Effective Date; Irrevocability.--An election made under this
section--
(1) shall take effect beginning with the first pay period
beginning after the date of the election; and
(2) shall be irrevocable.
(d) Condition for Making an Election; Extension To Satisfy
Condition.--(1) An election under this section to become subject to
chapter 84 of title 5, United States Code, shall not be considered
effective in the case of an individual having one or more former
spouses, unless the election is made with the written consent of such
former spouse (or each such former spouse, if there is more than one).
(2)(A) This subsection applies with respect to a former spouse who
(based on the service of the individual involved) is entitled to
benefits under section 8341(h) or 8345(j) of title 5, United States
Code, under the terms of a decree of divorce or annulment, or a court
order or court-approved property settlement incident to any such
decree, with respect to which the Office of Personnel Management has
been duly notified.
(B) This subsection does not apply with respect to a former spouse
who has ceased to be so entitled as a result of remarrying before age
55.
(3) The requirement under paragraph (1) shall be considered
satisfied with respect to a former spouse if the individual seeking to
make the election establishes to the satisfaction of the Office (in
accordance with regulations prescribed by the Office)--
(A) that the former spouse's whereabouts cannot be
determined; or
(B) that, due to exceptional circumstances, requiring the
individual to seek the former spouse's consent would otherwise
be inappropriate.
(4)(A) The Office shall, upon application of an individual, grant
an extension for such individual to make an election referred to in
paragraph (1) if such individual--
(i) files application for extension before the end of the
period during which such individual would otherwise be eligible
to make such election; and
(ii) demonstrates to the satisfaction of the Office that
the extension is needed to secure the modification of a decree
of divorce or annulment (or a court order or court-approved
property settlement incident to any such decree) in order to
satisfy the consent requirement under paragraph (1).
(B) An extension under this paragraph shall be for 6 months or for
such longer period as the Office considers appropriate.
(e) Exclusions.--This section does not apply to an individual under
section 8331(1)(G) of title 5, United States Code.
SEC. 302. EFFECT OF AN ELECTION UNDER SECTION 301 TO BECOME SUBJECT TO
THE FEDERAL EMPLOYEES' RETIREMENT SYSTEM.
(a) General and Special Rules.--All provisions of chapter 84 of
title 5, United States Code (including those relating to disability
benefits, survivor benefits, and any reductions to provide for survivor
benefits) shall apply with respect to any individual who becomes
subject to such chapter pursuant to an election under section 301,
except if, or to the extent that, such provisions are inconsistent with
the following:
(1)(A) Any civilian service which is performed before the
effective date of the election under section 301 shall not be
creditable under chapter 84 of title 5, United States Code,
except as otherwise provided in this subsection.
(B) Any service described in subparagraph (A) which is
covered service within the meaning of section 203(a)(3) of the
Federal Employees' Retirement Contribution Temporary Adjustment
Act of 1983 (97 Stat. 1107; 5 U.S.C. 8331 note) (hereinafter in
this section referred to as ``covered service'') shall be
creditable under chapter 84 of title 5, United States Code,
if--
(i) with respect to any such service performed
before January 1, 1987, 1.3 percent of basic pay for
such service was withheld in accordance with such Act
or, if either such withholding was not made or was
made, but the amount so withheld was subsequently
refunded, 1.3 percent of basic pay for such period is
deposited to the credit of the Civil Service Retirement
and Disability Fund (hereinafter in this section
referred to as the ``Fund''), with interest (computed
under section 8334(e) of such title); and
(ii) with respect to any such service performed
after December 31, 1986, and before the effective date
of the election, an amount equal to the percentage of
basic pay for such service which would be required to
be withheld under section 8422(a) of title 5, United
States Code, has been contributed to the Fund by the
individual involved, whether by withholdings from pay
or, if either no withholding was made or was made, but
the amount withheld was subsequently refunded, the
aforementioned percentage of basic pay for such period
is deposited to the credit of the Fund, with interest
(computed under section 8334(e) of such title).
(C) Any service described in subparagraph (A)--
(i) which is not covered service;
(ii) which constitutes service of a type described
in section 8411(b)(3) of title 5, United States Code
(determined without regard to whether such service was
performed before, on, or after January 1, 1989, and
without regard to the provisions of section 8411(f) of
such title); and
(iii) which, in the aggregate, is equal to less
than 5 years;
shall be creditable under chapter 84 of such title, subject to
section 8411(f) of such title.
(D) Any service described in subparagraph (A)--
(i) which is not covered service;
(ii) which constitutes service of a type described
in section 8411(b)(3) of title 5, United States Code
(determined without regard to whether such service was
performed before, on, or after January 1, 1989, and
without regard to the provisions of section 8411(f) of
such title); and
(iii) which, in the aggregate, is equal to 5 years
or more;
shall be creditable for purposes of--
(I) section 8410 of such title, relating to the
minimum period of civilian service required to be
eligible for an annuity;
(II) any provision of section 8412 (other than
subsection (d) or (e) thereof), 8413, 8414, 8442(b)(1),
8443(a)(1), or 8451 of such title which relates to a
minimum period of service for entitlement to an
annuity;
(III) the provisions of paragraphs (4) and (6);
(IV) any provision of section 8412(d) of such title
which relates to a minimum period of service for
entitlement to an annuity, but only if and to the
extent that the service described in subparagraph (A)
was as a law enforcement officer or firefighter;
(V) any provision of section 8412(e) of such title
which relates to a minimum period of service for
entitlement to an annuity, but only if and to the
extent that the service described in subparagraph (A)
was as an air traffic controller; and
(VI) the provision of subsection (g) of section
8415 which relates to the minimum period of service
required to qualify for the higher accrual rate under
such subsection.
(2)(A) Except as provided in subparagraph (B), the
creditability under chapter 84 of title 5, United States Code,
of any military service which is performed before the effective
date of the election under section 301 shall be determined in
accordance with applicable provisions of such chapter.
(B) If the electing individual has performed service
described in clauses (i) through (iii) of paragraph (1)(D),
service described in subparagraph (A) which, but for the
provisions of subsection (b), would be creditable under
subchapter III of chapter 83 of title 5, United States Code, as
in effect on December 31, 1986, shall be creditable for
purposes of--
(i) any provision of section 8412 (other than
subsection (d) or (e) thereof), 8413, or 8414 of such
title which relates to a minimum period of service for
entitlement to an annuity; and
(ii) the provisions of paragraph (4).
(3)(A)(i) If the electing individual becomes entitled to an
annuity under subchapter II of chapter 84 of title 5, United
States Code, or dies leaving a survivor or survivors entitled
to benefits under subchapter IV of such chapter, the annuity
for such individual shall be equal to the sum of the
individual's accrued benefits under the Civil Service
Retirement System (as determined under paragraph (4)) and the
individual's accrued benefits under the Federal Employees'
Retirement System (as determined under paragraph (5)).
(ii) An annuity computed under this subparagraph shall be
deemed to be the individual's annuity computed under section
8415 of title 5, United States Code.
(B) If the electing individual becomes entitled to an
annuity under subchapter V of chapter 84 of title 5, United
States Code, and if it becomes necessary to compute an annuity
under section 8415 of such title with respect to such
individual as a result of such individual's having become so
entitled, the methodology set forth in subparagraph (A) shall
be used in computing any such annuity under section 8415.
(4) Accrued benefits under this paragraph shall be computed
in accordance with applicable provisions of subchapter III of
chapter 83 of title 5, United States Code (but without regard
to subsection (j) or (k), or the second sentence of subsection
(e), of section 8339 of such title) using only any civilian
service under paragraph (1)(D), and any military service under
paragraph (2)(B), which would be creditable for purposes of
computing an annuity under such subchapter. Notwithstanding the
preceding sentence, in computing accrued benefits under this
paragraph for an individual retiring under section 8412(g) or
8413(b) of title 5, United States Code, section 8339(h) of such
title (relating to reductions based on age at date of
separation) shall not apply.
(5) Accrued benefits under this paragraph shall be computed
under section 8415 of title 5, United States Code, using--
(A) total service creditable under chapter 84 of
such title which is performed on or after the effective
date of the election under section 301; and
(B) with respect to service performed before such
effective date--
(i) creditable civilian service (as
determined under applicable provisions of this
subsection) other than any service described in
paragraph (1)(D); and
(ii) creditable military service (as
determined under applicable provisions of this
subsection) other than any service described in
paragraph (2)(B).
(6)(A) For purposes of any computation under paragraph (4)
or (5), the average pay to be used shall be the largest annual
rate resulting from averaging the individual's rates of basic
pay in effect over any 3 consecutive years of creditable
service or, in the case of an annuity based on service of less
than 3 years, over the total period of service so creditable,
with each rate weighted by the period it was in effect.
(B) For purposes of subparagraph (A), service shall be
considered creditable if it would be considered creditable for
purposes of determining average pay under chapter 83 or 84 of
title 5, United States Code.
(7) The cost-of-living adjustments for the annuity of the
electing individual shall be made as follows:
(A) The portion of the annuity attributable to
paragraph (4) shall be adjusted at the time and in the
amount provided for under section 8340 of title 5,
United States Code.
(B) The portion of the annuity attributable to
paragraph (5) shall be adjusted at the time and in the
amount provided for under section 8462 of title 5,
United States Code.
(8) For purposes of any computation under paragraph (4) in
the case of an individual who retires under section 8412 or
8414 of title 5, United States Code, or who dies leaving a
survivor or survivors entitled to benefits under subchapter IV
of such chapter, sick leave creditable under section 8339(m) of
such title shall be equal to the number of days of unused sick
leave to the individual's credit as of the date of retirement
or as of the effective date of the individual's election under
section 301, whichever is less.
(9) In computing the annuity under paragraph (3) for an
individual retiring under section 8412(g) or 8413(b) of title
5, United States Code, the reduction under section 8415(f) of
such title shall apply with respect to the sum computed under
such paragraph.
(10) An annuity supplement under section 8421 of title 5,
United States Code, shall be computed using the same service as
is used for the computation under paragraph (5).
(11) Effective from its commencing date, an annuity payable
to an annuitant's survivor (other than a child under section
8443 of title 5, United States Code) shall be increased by the
total percent by which the deceased annuitant's annuity was
increased under paragraph (7).
(12)(A)(i) If the electing individual is a reemployed
annuitant under section 8344 of title 5, United States Code,
under conditions allowing the annuity to continue during
reemployment, payment of the annuitant's annuity shall continue
after the effective date of the election, and an amount equal
to the annuity allocable to the period of actual employment
shall continue to be deducted from the annuitant's pay and
deposited as provided in subsection (a) of such section.
Deductions from pay under section 8422(a) of such title and
contributions under section 8423 of such title shall begin
effective on the effective date of the election.
(ii) Notwithstanding any provision of section 301, an
election under such section shall not be available to any
reemployed annuitant who would be excluded from the operation
of chapter 84 of title 5, United States Code, under section
8402(c) of such title (relating to exclusions based on the
temporary or intermittent nature of one's employment).
(B) If the annuitant serves on a full-time basis for at
least 1 year, or on a part-time basis for periods equivalent to
at least 1 year of full-time service, such annuitant's annuity,
on termination of reemployment, shall be increased by an
annuity computed--
(i) with respect to reemployment service before the
effective date of the election, under section 8339 (a),
(b), (d), (e), (h), (i), and (n) of title 5, United
States Code, as may apply based on the reemployment in
which such annuitant was engaged before such effective
date; and
(ii) with respect to reemployment service on or
after the effective date of the election, under section
8415 (a) through (f) of such title, as may apply based
on the reemployment in which such annuitant was engaged
on or after such effective date;
with the ``average pay'' used in any computation under clause
(i) or (ii) being determined (based on rates of pay in effect
during the period of reemployment, whether before, on, or after
the effective date of the election) in the same way as provided
for in paragraph (6). If the annuitant is receiving a reduced
annuity as provided in section 8339(j) or section 8339(k)(2) of
title 5, United States Code, the increase in annuity payable
under this subparagraph is reduced by 10 percent and the
survivor annuity payable under section 8341(b) of such title is
increased by 55 percent of the increase in annuity payable
under this subparagraph, unless, at the time of claiming the
increase payable under this subparagraph, the annuitant
notifies the Office of Personnel Management in writing that
such annuitant does not desire the survivor annuity to be
increased. If the annuitant dies while still reemployed, after
having been reemployed for at least 1 full year (or the
equivalent thereof, in the case of part-time employment), any
survivor annuity payable under section 8341(b) of such title
based on the service of such annuitant is increased as though
the reemployment had otherwise terminated. In applying
paragraph (7) to an amount under this subparagraph, any portion
of such amount attributable to clause (i) shall be adjusted
under subparagraph (A) of such paragraph, and any portion of
such amount attributable to clause (ii) shall be adjusted under
subparagraph (B) of such paragraph.
(C)(i) If the annuitant serves on a full-time basis for at
least 5 years, or on a part-time basis for periods equivalent
to at least 5 years of full-time service, such annuitant may
elect, instead of the benefit provided by subparagraph (B), to
have such annuitant's rights redetermined, effective upon
separation from employment. If the annuitant so elects, the
redetermined annuity will become payable as if such annuitant
were retiring for the first time based on the separation from
reemployment service, and the provisions of this section
concerning computation of annuity (other than any provision of
this paragraph) shall apply.
(ii) If the annuitant dies while still reemployed, after
having been reemployed for at least 5 full years (or the
equivalent thereof, in the case of part-time employment), any
person entitled to a survivor annuity under section 8341(b) of
title 5, United States Code, based on the service of such
annuitant shall be permitted to elect to have such person's
rights redetermined in accordance with regulations which the
Office shall prescribe. Redetermined benefits elected under
this clause shall be in lieu of any increased benefits which
would otherwise be payable in accordance with the next to last
sentence of subparagraph (B).
(D) If the annuitant serves on a full-time basis for less
than 1 year (or the equivalent thereof, in the case of part-
time employment), any amounts withheld under section 8422(a) of
title 5, United States Code, from such annuitant's pay for the
period (or periods) involved shall, upon written application to
the Office, be payable to such annuitant (or the appropriate
survivor or survivors, determined in the order set forth in
section 8342(c) of such title).
(E) For purposes of determining the period of an
annuitant's reemployment service under this paragraph, a period
of reemployment service shall not be taken into account
unless--
(i) with respect to service performed before the
effective date of the election under section 301, it is
service which, if performed for at least 1 full year,
would have allowed such annuitant to elect under
section 8344(a) of title 5, United States Code, to have
deductions withheld from pay; or
(ii) with respect to service performed on or after
the effective date of the election under section 301,
it is service with respect to which deductions from pay
would be required to be withheld under the second
sentence of section 8468(a) of title 5, United States
Code.
(b) Chapter 83 Generally Inapplicable.--(1) Except as provided in
subsection (a) or paragraph (2), subchapter III of chapter 83 of title
5, United States Code, shall not apply with respect to any individual
who becomes subject to chapter 84 of title 5, United States Code,
pursuant to an election under section 301.
(2)(A) Nothing in paragraph (1), or in subchapter III of chapter 83
of title 5, United States Code, shall preclude the making of a deposit
under such subchapter with respect to any civilian service under
subsection (a)(1)(D) or military service under subsection (a)(2)(B)
either by the electing individual or, for purposes of survivor
annuities, by a survivor of such individual.
(B) Nothing in paragraph (1) shall preclude the payment of any
lump-sum credit in accordance with section 8342 of title 5, United
States Code.
(c) Refunds Relating to Certain Civilian Service.--(1) Any
individual who makes an election under section 301 to become subject to
chapter 84 and who, with respect to any period before the effective
date of the election, has made a contribution to the Civil Service
Retirement System (whether by deductions from pay or by a deposit or
redeposit) and has not taken a refund of the contribution (as so made),
shall be entitled to a refund equal to--
(A) for a period of service under clause (i) of subsection
(a)(1)(B), the amount by which--
(i) the amount contributed with respect to such
period, exceeds
(ii) the amount required under such clause (i) with
respect to such period;
(B) for a period of service under clause (ii) of subsection
(a)(1)(B), the amount by which--
(i) the amount so contributed with respect to such
period, exceeds
(ii) the amount required under such clause (ii)
with respect to such period; and
(C) for a period of service under subparagraph (C) of
subsection (a)(1), the amount by which--
(i) the amount so contributed with respect to such
period, exceeds
(ii) the amount required under such subparagraph
with respect to such period.
(2) In accordance with regulations prescribed by the Office of
Personnel Management, a refund under this subsection shall be payable
upon written application therefor filed with the Office and shall
include interest at the rate provided in section 8334(e)(3) of title 5,
United States Code. Interest on the refund shall accrue monthly and
shall be compounded annually.
SEC. 303. PROVISIONS RELATING TO AN ELECTION TO BECOME SUBJECT TO
CHAPTER 83 SUBJECT TO CERTAIN OFFSETS RELATING TO
SOCIAL SECURITY.
(a) Refund.--Any individual who makes an election under section
301(b)(1)(A) shall, upon written application to the Office of Personnel
Management, be entitled to a refund equal to--
(1) for the period beginning on January 1, 1984, and ending
on December 31, 1986, the amount by which--
(A) the total amount deducted from such
individual's basic pay under section 8334(a)(1) of
title 5, United States Code, for such period, exceeds
(B) 1.3 percent of such individual's total basic
pay for such period; and
(2) for the period beginning on January 1, 1987, and ending
on the day before the effective date of the election, the
amount by which--
(A) the total amount deducted from such
individual's basic pay under such section 8334(a)(1)
for such period, exceeds
(B) the total amount which would have been deducted
if such individual's basic pay had instead been subject
to section 8334(k) of such title during such period.
A refund under this subsection shall be computed with interest in
accordance with section 302(c)(2) and regulations prescribed by the
Office of Personnel Management.
(b) Deposit Requirements.--(1) In the case of an individual who
becomes subject to subchapter III of chapter 83 of title 5, United
States Code, pursuant to notification as described in the second
sentence of section 301(b)(3)(B), service performed by such individual
before the effective date of the notification shall not be considered
creditable under such subchapter unless--
(A) for any service during the period beginning on January
1, 1987, and ending on the day before such effective date,
there is deposited to the credit of the Fund a percentage of
basic pay for such period equal to the percentage which would
have applied under section 8334(k) of such title if such
individual's pay had been subject to such section during such
period;
(B) for any period of service beginning on January 1, 1984,
and ending on December 31, 1986, there is deposited to the
credit of the Fund an amount equal to 1.3 percent of basic pay
for such period; and
(C) for any period of service before January 1, 1984, there
is deposited to the credit of the Fund any amount required with
respect to such period under such subchapter.
(2) A deposit under this subsection may be made by the individual
or, for purposes of survivor annuities, a survivor of such individual.
CHAPTER 85--UNEMPLOYMENT COMPENSATION
SUBCHAPTER I--EMPLOYEES GENERALLY
Sec.
8501. Definitions.
8502. Compensation under State agreement.
8503. Compensation absent State agreement.
8504. Assignment of Federal service and wages.
8505. Payments to States.
8506. Dissemination of information.
8507. False statements and misrepresentations.
8508. Regulations.
8509. Federal Employees Compensation Account.
SUBCHAPTER II--EX-SERVICEMEN
8521. Definitions; application.
8522. Assignment of Federal service and wages.
8523. Dissemination of information.
[8524. Repealed.]
8525. Effect on other statutes.
SUBCHAPTER I--EMPLOYEES GENERALLY
Sec. 8501. Definitions
For the purpose of this subchapter--
(1) ``Federal service'' means service performed
after 1952 in the employ of the United States or an
instrumentality of the United States which is wholly or
partially owned by the United States, but does not
include service (except service to which subchapter II
of this chapter applies) performed--
(A) by an elective official in the
executive or legislative branch;
(B) as a member of the armed forces or the
Commissioned Corps of the National Oceanic and
Atmospheric Administration;
(C) by members of the Foreign Service for
whom payments are provided under section
609(b)(1) of the Foreign Service Act of 1980;
(D) outside the United States, the
Commonwealth of Puerto Rico, and the Virgin
Islands by an individual who is not a citizen
of the United States;
(E) by an individual excluded by
regulations of the Office of Personnel
Management from the operation of subchapter III
of chapter 83 of this title because he is paid
on a contract or fee basis;
(F) by an individual receiving nominal pay
and allowances of $12 or less a year;
(G) in a hospital, home, or other
institution of the United States by a patient
or inmate thereof;
(H) by a student-employee as defined by
section 5351 of this title;
(I) by an individual serving on a temporary
basis in case of fire, storm, earthquake,
flood, or other similar emergency;
(J) by an individual employed under a
Federal relief program to relieve him from
unemployment;
(K) as a member of a State, county, or
community committee under the Agricultural
Stabilization and Conservation Service or of
any other board, council, committee, or other
similar body, unless the board, council,
committee, or other body is composed
exclusively of individuals otherwise in the
full-time employ of the United States; or
(L) by an officer or a member of the crew
on or in connection with an American vessel--
(i) owned by or bareboat chartered
to the United States; and
(ii) whose business is conducted by
a general agent of the Secretary of
Commerce;
if contributions on account of the service are required
to be made to an unemployment fund under a State
unemployment compensation law under section 3305(g) of
title 26;
(2) ``Federal wages'' means all pay and allowances,
in cash and in kind, for Federal service;
(3) ``Federal employee'' means an individual who
has performed Federal service;
(4) ``compensation'' means cash benefits payable to
an individual with respect to his unemployment
including any portion thereof payable with respect to
dependents;
(5) ``benefit year'' means the benefit year as
defined by the applicable State unemployment
compensation law, and if not so defined the term means
the period prescribed in the agreement under this
subchapter with a State or, in the absence of such an
agreement, the period prescribed by the Secretary of
Labor;
(6) ``State'' means the several States, the
District of Columbia, the Commonwealth of Puerto Rico,
and the Virgin Islands;
(7) ``United States'', when used in a geographical
sense, means the States; and
(8) ``base period'' means the base period as
defined by the applicable State unemployment
compensation law for the benefit year.
Sec. 8502. Compensation under State agreement
(a) The Secretary of Labor, on behalf of the United States,
may enter into an agreement with a State, or with an agency
administering the unemployment compensation law of a State,
under which the State agency shall--
(1) pay, as agent of the United States,
compensation under this subchapter to Federal
employees; and
(2) otherwise cooperate with the Secretary and with
other State agencies in paying compensation under this
subchapter.
(b) The agreement shall provide that compensation will be
paid by the State to a Federal employee in the same amount, on
the same terms, and subject to the same conditions as the
compensation which would be payable to him under the
unemployment compensation law of the State if his Federal
service and Federal wages assigned under section 8504 of this
title to the State had been included as employment and wages
under that State law.
[(c) Repealed. Pub. L. 90-83, Sec. 1(86)(B), Sept. 11,
1967, 81 Stat. 218.]
(d) A determination by a State agency with respect to
entitlement to compensation under an agreement is subject to
review in the same manner and to the same extent as
determinations under the State unemployment compensation law,
and only in that manner and to that extent.
(e) Each agreement shall provide the terms and conditions
on which it may be amended or terminated.
Sec. 8503. Compensation absent State agreement
(a) In the case of a Federal employee whose Federal service
and Federal wages are assigned under section 8504 of this title
to a State which does not have an agreement with the Secretary
of Labor, the Secretary, under regulations prescribed by him,
shall, on the filing by the Federal employee of a claim for
compensation under this subsection, pay compensation to him in
the same amount, on the same terms, and subject to the same
conditions as would be paid to him under the unemployment
compensation law of the State if his Federal service and
Federal wages had been included as employment and wages under
that State law. However, if the Federal employee, without
regard to his Federal service and Federal wages, has employment
or wages sufficient to qualify for compensation during the
benefit year under that State law, then payments of
compensation under this subsection may be made only on the
basis of his Federal service and Federal wages.
(b) A Federal employee whose claim for compensation under
subsection (a) of this section is denied is entitled to a fair
hearing under regulations prescribed by the Secretary. A final
determination by the Secretary with respect to entitlement to
compensation under this section is subject to review by the
courts in the same manner and to the same extent as is provided
by section 405(g) of title 42.
Sec. 8504. Assignment of Federal service and wages
Under regulations prescribed by the Secretary of Labor, the
Federal service and Federal wages of a Federal employee shall
be assigned to the State in which he had his last official
station in Federal service before the filing of his first claim
for compensation for the benefit year. However--
(1) if, at the time of filing his first claim, he
resides in another State in which he performed, after
the termination of his Federal service, service covered
under the unemployment compensation law of the other
State, his Federal service and Federal wages shall be
assigned to the other State; and
(2) if his last official station in Federal
service, before filing his first claim, was outside the
United States, his Federal service and Federal wages
shall be assigned to the State where he resides at the
time he files his first claim.
Sec. 8505. Payments to States
(a) Each State is entitled to be paid by the United States
with respect to each individual whose base period wages
included Federal wages an amount which shall bear the same
ratio to the total amount of compensation paid to such
individual as the amount of his Federal wages in his base
period bears to the total amount of his base period wages.
(b) Each State shall be paid, either in advance or by way
of reimbursement, as may be determined by the Secretary of
Labor, the sum that the Secretary estimates the State is
entitled to receive under this subchapter for each calendar
month. The sum shall be reduced or increased by the amount
which the Secretary finds that his estimate for an earlier
calendar month was greater or less than the sum which should
have been paid to the State. An estimate may be made on the
basis of a statistical, sampling, or other method agreed on by
the Secretary and the State agency.
(c) The Secretary, from time to time, shall certify to the
Secretary of the Treasury the sum payable to each State under
this section. The Secretary of the Treasury, before audit or
settlement by the General Accounting Office, shall pay the
State in accordance with the certification from the funds for
carrying out the purposes of this subchapter.
(d) Money paid a State under this subchapter may be used
solely for the purposes for which it is paid. Money so paid
which is not used for these purposes shall be returned, at the
time specified by the agreement, to the Treasury of the United
States and credited to current applicable appropriations,
funds, or accounts from which payments to States under this
subchapter may be made.
(e) An agreement may--
(1) require each State officer or employee who
certifies payments or disburses funds under the
agreement, or who otherwise participates in its
performance, to give a surety bond to the United States
in the amount the Secretary considers necessary; and
(2) provide for payment of the cost of the bond
from funds for carrying out the purposes of this
subchapter.
(f) In the absence of gross negligence or intent to defraud
the United States, an individual designated by the Secretary,
or designated under an agreement, as a certifying official is
not liable for the payment of compensation certified by him
under this subchapter.
(g) In the absence of gross negligence or intent to defraud
the United States, a disbursing official is not liable for a
payment by him under this subchapter if it was based on a
voucher signed by a certifying official designated as provided
by subsection (f) of this section.
(h) For the purpose of payments made to a State under
subchapter III of chapter 7 of title 42, administration by a
State agency under an agreement is deemed a part of the
administration of the State unemployment compensation law.
Sec. 8506. Dissemination of information
(a) Each agency of the United States and each wholly or
partially owned instrumentality of the United States shall make
available to State agencies which have agreements under this
subchapter, or to the Secretary of Labor, as the case may be,
such information concerning the Federal service and Federal
wages of a Federal employee as the Secretary considers
practicable and necessary for the determination of the
entitlement of the Federal employee to compensation under this
subchapter. The information shall include the findings of the
employing agency concerning--
(1) whether or not the Federal employee has
performed Federal service;
(2) the periods of Federal service;
(3) the amount of Federal wages; and
(4) the reasons for termination of Federal service.
The employing agency shall make the findings in the form and
manner prescribed by regulations of the Secretary. The
regulations shall include provision for correction by the
employing agency of errors and omissions. This subsection does
not apply with respect to Federal service and Federal wages
covered by subchapter II of this chapter.
(b) The agency administering the unemployment compensation
law of a State shall furnish the Secretary such information as
he considers necessary or appropriate in carrying out this
subchapter. The information is deemed the report required by
the Secretary for the purpose of section 503(a)(6) of title 42.
Sec. 8507. False statements and misrepresentations
(a) If a State agency, the Secretary of Labor, or a court
of competent jurisdiction finds that an individual--
(1) knowingly has made, or caused to be made by
another, a false statement or representation of a
material fact, or knowingly has failed, or caused
another to fail, to disclose a material fact; and
(2) as a result of that action has received an
amount as compensation under this subchapter to which
he was not entitled;
the individual shall repay the amount to the State agency or
the Secretary. Instead of requiring repayment under this
subsection, the State agency or the Secretary may recover the
amount by deductions from compensation payable to the
individual under this subchapter during the 2-year period after
the date of the finding. A finding by a State agency or the
Secretary may be made only after an opportunity for a fair
hearing, subject to such further review as may be appropriate
under sections 8502(d) and 8503(c) of this title.
(b) An amount repaid under subsection (a) of this section
shall be--
(1) deposited in the fund from which payment was
made, if the repayment was to a State agency; or
(2) returned to the Treasury of the United States
and credited to the current applicable appropriation,
fund, or account from which payment was made, if the
repayment was to the Secretary.
Sec. 8508. Regulations
The Secretary of Labor may prescribe rules and regulations
necessary to carry out this subchapter and subchapter II of
this chapter. The Secretary, insofar as practicable, shall
consult with representatives of the State unemployment
compensation agencies before prescribing rules or regulations
which may affect the performance by the State agencies of
functions under agreements under this subchapter.
Sec. 8509. Federal Employees Compensation Account
(a) The Federal Employees Compensation Account (as
established by section 909 of the Social Security Act, and
hereafter in this section referred to as the ``Account'') in
the Unemployment Trust Fund (as established by section 904 of
such Act) shall consist of--
(1) funds appropriated to or transferred thereto,
and
(2) amounts deposited therein pursuant to
subsection (c).
(b) Moneys in the Account shall be available only for the
purpose of making payments to States pursuant to agreements
entered into under this chapter and making payments of
compensation under this chapter in States which do not have in
effect such an agreement.
(c)(1) Each employing agency shall deposit into the Account
amounts equal to the expenditures incurred under this chapter
on account of Federal service performed by employees and former
employees of that agency.
(2) Deposits required by paragraph (1) shall be made during
each calendar quarter and the amount of the deposit to be made
by any employing agency during any quarter shall be based on a
determination by the Secretary of Labor as to the amounts of
payments, made prior to such quarter from the Account based on
Federal service performed by employees of such agency after
December 31, 1980, with respect to which deposit has not
previously been made. The amount to be deposited by any
employing agency during any calendar quarter shall be adjusted
to take account of any overpayment or underpayment of deposit
during any previous quarter for which adjustment has not
already been made.
(3) If any Federal agency does not deposit in the Federal
Employees Compensation Account any amount before the date 30
days after the date on which the Secretary of Labor has
notified such agency that it is required to so deposit such
amount, the Secretary of Labor shall notify the Secretary of
the Treasury of the failure to make such deposit and the
Secretary of the Treasury shall transfer such amount to the
Federal Employees Compensation Account from amounts otherwise
appropriated to such Federal agency.
(d) The Secretary of Labor shall certify to the Secretary
of the Treasury the amount of the deposit which each employing
agency is required to make to the Account during any calendar
quarter, and the Secretary of the Treasury shall notify the
Secretary of Labor as to the date and amount of any deposit
made to such Account by any such agency.
(e) Prior to the beginning of each fiscal year (commencing
with the fiscal year which begins October 1, 1981) the
Secretary of Labor shall estimate--
(1) the amount of expenditures which will be made
from the Account during such year, and
(2) the amount of funds which will be available
during such year for the making of such expenditures,
and if, on the basis of such estimate, he determines that the
amount described in paragraph (2) is in excess of the amount
necessary--
(3) to meet the expenditures described in paragraph
(1), and
(4) to provide a reasonable contingency fund so as
to assure that there will, during all times in such
year, be sufficient sums available in the Account to
meet the expenditures described in paragraph (1),
he shall certify the amount of such excess to the Secretary of
the Treasury and the Secretary of the Treasury shall transfer,
from the Account to the general fund of the Treasury, an amount
equal to such excess.
(f) The Secretary of Labor is authorized to establish such
rules and regulations as may be necessary or appropriate to
carry out the provisions of this section.
(g) Any funds appropriated after the establishment of the
Account, for the making of payments for which expenditures are
authorized to be made from moneys in the Account, shall be made
to the Account; and there are hereby authorized to be
appropriated to the Account, from time to time, such sums as
may be necessary to assure that there will, at all times, be
sufficient sums available in the Account to meet the
expenditures authorized to be made from moneys therein.
(h) For purposes of this section, the term ``Federal
service'' includes Federal service as defined in section
8521(a).
SUBCHAPTER II--EX-SERVICEMEN
Sec. 8521. Definitions; application
(a) For the purpose of this subchapter--
(1) ``Federal service'' means active service (not
including active duty in a reserve status unless for a
continuous period of 90 days or more) in the armed
forces or the Commissioned Corps of the National
Oceanic and Atmospheric Administration if with respect
to that service--
(A) the individual was discharged or
released under honorable conditions (and, if an
officer, did not resign for the good of the
service); and
(B)(i) the individual was discharged or
released after completing his first full term
of active service which the individual
initially agreed to serve, or
(ii) the individual was discharged or
released before completing such term of active
service--
(I) for the convenience of the
Government under an early release
program,
(II) because of medical
disqualification, pregnancy,
parenthood, or any service-incurred
injury or disability,
(III) because of hardship, or
(IV) because of personality
disorders or inaptitude but only if the
service was continuous for 365 days or
more;
(2) ``Federal wages'' means all pay and allowances,
in cash and in kind, for Federal service, computed on
the basis of the pay and allowances for the pay grade
of the individual at the time of his latest discharge
or release from Federal service as specified in the
schedule applicable at the time he files his first
claim for compensation for the benefit year. The
Secretary of Labor shall issue, from time to time,
after consultation with the Secretary of Defense,
schedules specifying the pay and allowances for each
pay grade of servicemen covered by this subchapter,
which reflect representative amounts for appropriate
elements of the pay and allowances whether in cash or
in kind; and
(3) ``State'' means the several States, the
District of Columbia, the Commonwealth of Puerto Rico,
and the Virgin Islands.
(b) The provisions of subchapter I of this chapter, subject
to the modifications made by this subchapter, apply to
individuals who have had Federal service as defined by
subsection (a) of this section.
Sec. 8522. Assignment of Federal service and wages
Notwithstanding section 8504 of this title, Federal service
and Federal wages not previously assigned shall be assigned to
the State in which the claimant first files claim for
unemployment compensation after his latest discharge or release
from Federal service. This assignment is deemed as assignment
under section 8504 of this title for the purpose of this
subchapter.
Sec. 8523. Dissemination of information
(a) When designated by the Secretary of Labor, an agency of
the United States shall make available to the appropriate State
agency or to the Secretary, as the case may be, such
information, including findings in the form and manner
prescribed by regulations of the Secretary, as the Secretary
considers practicable and necessary for the determination of
the entitlement of an individual to compensation under this
subchapter.
(b) Subject to correction of errors and omissions as
prescribed by regulations of the Secretary, the following are
final and conclusive for the purpose of sections 8502(d) and
8503(c) of this title:
(1) Findings by an agency of the United States made
in accordance with subsection (a) of this section with
respect to--
(A) whether or not an individual has met
any condition specified by section 8521(a)(1)
of this title;
(B) the periods of Federal service; and
(C) the pay grade of the individual at the
time of his latest discharge or release from
Federal service.
(2) The schedules of pay and allowances prescribed
by the Secretary under section 8521(a)(2) of this
title.
[Sec. 8524. Repealed. Pub. L. 91-373, title I, Sec. 107, Aug. 10, 1970,
84 Stat. 701.]
Sec. 8525. Effect on other statutes
[(a) Repealed. Pub. L. 90-83, Sec. 1(90), Sept. 11, 1967,
81 Stat. 219.]
(b) An individual is not entitled to compensation under
this subchapter for any period with respect to which he
receives--
(1) a subsistence allowance under chapter 31 of
title 38 or under part VIII of Veterans Regulation
Numbered 1(a); or
(2) an educational assistance allowance under
chapter 35 of title 38.
CHAPTER 87--LIFE INSURANCE
Sec.
8701. Definitions.
8702. Automatic coverage.
8703. Benefit certificate.
8704. Group insurance; amounts.
8705. Death claims; order of precedence; escheat.
8706. Termination of insurance; assignment of ownership.
8707. Employee deductions; withholding.
8708. Government contributions.
8709. Insurance policies.
8710. Reinsurance.
8711. Basic tables of premium rates.
8712. Annual accounting; special contingency reserve.
8713. Effect of other statutes.
8714. Employees' Life Insurance Fund.
8714a. Optional insurance.
8714b. Additional optional life insurance.
8714c. Optional life insurance on family members.
8714d. Option to receive ``living benefits''.
8715. Jurisdiction of courts.
8716. Regulations.
Sec. 8701. Definitions
(a) For the purpose of this chapter, ``employee'' means--
(1) an employee as defined by section 2105 of this
title;
(2) a Member of Congress as defined by section 2106
of this title;
(3) a Congressional employee as defined by section
2107 of this title;
(4) the President;
(5) a justice or judge of the United States
appointed to hold office during good behavior (i) who
is in regular active judicial service, or (ii) who is
retired from regular active service under section
371(b) or 372(a) of title 28, United States Code, or
(iii) who has resigned the judicial office under
section 371(a) of title 28 with the continued right
during the remainder of his lifetime to receive the
salary of the office at the time of his resignation;
(6) an individual first employed by the government
of the District of Columbia before October 1, 1987;
(7) an individual employed by Gallaudet College;
(8) an individual employed by a county committee
established under section 590h(b) of title 16;
(9) an individual appointed to a position on the
office staff of a former President under section 1(b)
of the Act of August 25, 1958 (72 Stat. 838); and
(10) an individual appointed to a position on the
office staff of a former President, or a former Vice
President under section 4 of the Presidential
Transition Act of 1963, as amended (78 Stat. 153), who
immediately before the date of such appointment was an
employee as defined under any other paragraph of this
subsection;
but does not include--
(A) an employee of a corporation supervised by the
Farm Credit Administration if private interests elect
or appoint a member of the board of directors;
(B) an individual who is not a citizen or national
of the United States and whose permanent duty station
is outside the United States, unless the individual was
an employee for the purpose of this chapter on
September 30, 1979, by reason of service in an
Executive agency, the United States Postal Service, or
the Smithsonian Institution in the area which was then
known as the Canal Zone; or
(C) an employee excluded by regulation of the
Office of Personnel Management under section 8716(b) of
this title.
(b) Notwithstanding subsection (a) of this section, the
employment of a teacher in the recess period between two school
years in a position other than a teaching position in which he
served immediately before the recess period does not qualify
the individual as an employee for the purpose of this chapter.
For the purpose of this subsection, ``teacher'' and ``teaching
position'' have the meanings given them by section 901 of title
20.
(c) For the purpose of this chapter, ``basic insurance
amount'' means, in the case of any employee under this chapter,
an amount equal to the greater of--
(1) the annual rate of basic pay payable to the
employee, rounded to the next higher multiple of
$1,000, plus $2,000, or
(2) $10,000.
In the case of any former employee entitled to coverage under
this chapter, the term means the basic insurance amount
applicable for the employee at the time the insurance to which
the employee is entitled as an employee under this chapter
stops pursuant to section 8706(a) of this title.
(d)(1) For the purpose of this chapter, ``family member'',
when used with respect to any individual, means--
(A) the spouse of the individual; and
(B) an unmarried dependent child of the individual
(other than a stillborn child), including an adopted
child, stepchild or foster child (but only if the
stepchild or foster child lived with the individual in
a regular parent-child relationship), or recognized
natural child--
(i) who is less than 22 years of age, or
(ii) who is 22 years of age or older and is
incapable of self-support because of a mental
or physical disability which existed before the
child became 22 years of age.
(2) For the purpose of this subsection, ``dependent'', in
the case of any child, means that the individual involved was,
at the time of the child's death, either living with or
contributing to the support of the child, as determined in
accordance with the regulations the Office shall prescribe.
Sec. 8702. Automatic coverage
(a) An employee is automatically insured on the date he
becomes eligible for insurance and each policy of insurance
purchased by the Office of Personnel Management under this
chapter shall provide for that automatic coverage.
(b) An employee desiring not to be insured shall give
written notice to his employing office on a form prescribed by
the Office. If the notice is received before he has become
insured, he shall not be insured. If the notice is received
after he has become insured, his insurance stops at the end of
the pay period in which the notice is received.
(c) Notwithstanding a notice previously given under
subsection (b), an employee of the Department of Defense who is
designated as an emergency essential employee under section
1580 of title 10 shall be insured if the employee, within 60
days after the date of the designation, elects to be insured
under a policy of insurance under this chapter. An election
under the preceding sentence shall be effective when provided
to the Office in writing, in the form prescribed by the Office,
within such 60-day period.
Sec. 8703. Benefit certificate
The Office of Personnel Management shall arrange to have
each insured employee receive a certificate setting forth the
benefits to which he is entitled, to whom the benefits are
payable, to whom the claims shall be submitted, and summarizing
the provisions of the policy principally affecting him. The
certificate is issued instead of the certificate which the
insurance company would otherwise be required to issue.
Sec. 8704. Group insurance; amounts
(a) An employee eligible for insurance is entitled to be
insured for an amount of group life insurance equal to--
(1) the employee's basic insurance amount,
multiplied by
(2) the appropriate factor determined on the basis
of the employee's age in accordance with the following
schedule:
If the age of the The appropriate
employee is: factor is:
35 or under........................................... 2.0
36.................................................... 1.9
37.................................................... 1.8
38.................................................... 1.7
39.................................................... 1.6
40.................................................... 1.5
41.................................................... 1.4
42.................................................... 1.3
43.................................................... 1.2
44.................................................... 1.1
45 or over............................................ 1.0
(b) An employee eligible for insurance is entitled to be
insured for group accidental death and dismemberment insurance
in accordance with this subsection. Subject to the conditions
and limitations approved by the Office of Personnel Management
which are contained in the policy purchased by the Office, the
group accidental death and dismemberment insurance provides
payment as follows:
Lo Amount payable
For loss of life..Full amount of the employee's basic insurance ......
amount.
Loss of one hand oOne-half the amount of the employee's basic ........
insurance amount.
Loss of two or morFull amount of the employee's basic insurance ......
amount.
For any one accident the aggregate amount of group accidental
death and dismemberment insurance that may be paid may not
exceed an amount equal to the employee's basic insurance
amount.
(c) The Office shall prescribe regulations providing for
the conversion of other than annual rates of pay to annual
rates of pay and shall specify the types of pay included in
annual pay. For the purpose of this chapter, ``annual pay''
includes--
(1) premium pay under section 5545(c)(1) of this
title; and
(2) with respect to a law enforcement officer as
defined in section 8331(20) or 8401(17) of this title,
premium pay under section 5545(c)(2) of this title.
(d) In determining the amount of insurance to which an
employee is entitled--
(1) a change in rate of pay under subchapter VI of
chapter 53 of this title is deemed effective as of the
first day of the pay period after the pay period in
which the payroll change is approved; and
(2) a change in rate of pay under section 5344 or
5349 of this title is deemed effective as of the date
of issuance of the order granting the increase or the
effective date of the increase, whichever is later,
except, that in the case of an employee who dies or
retires during the period beginning on the effective
date of the increase and ending on the date of the
issuance of the order granting the increase, a change
in rate of pay under either of such sections shall be
deemed as having been in effect for such employee
during that period.
Sec. 8705. Death claims; order of precedence; escheat
(a) Except as provided in subsection (e), the amount of
group life insurance and group accidental death insurance in
force on an employee at the date of his death shall be paid, on
the establishment of a valid claim, to the person or persons
surviving at the date of his death, in the following order of
precedence:
First, to the beneficiary or beneficiaries
designated by the employee in a signed and witnessed
writing received before death in the employing office
or, if insured because of receipt of annuity or of
benefits under subchapter I of chapter 81 of this title
as provided by section 8706(b) of this title, in the
Office of Personnel Management. For this purpose, a
designation, change, or cancellation of beneficiary in
a will or other document not so executed and filed has
no force or effect.
Second, if there is no designated beneficiary, to
the widow or widower of the employee.
Third, if none of the above, to the child or
children of the employee and descendants of deceased
children by representation.
Fourth, if none of the above, to the parents of the
employee or the survivor of them.
Fifth, if none of the above, to the duly appointed
executor or administrator of the estate of the
employee.
Sixth, if none of the above, to other next of kin
of the employee entitled under the laws of the domicile
of the employee at the date of his death.
(b) If, within 1 year after the death of the employee, no
claim for payment has been filed by a person entitled under the
order of precedence named by subsection (a) of this section, or
if payment to the person within that period is prohibited by
Federal statute or regulation, payment may be made in the order
of precedence as if the person had predeceased the employee,
and the payment bars recovery by any other person.
(c) If, within 2 years after the death of the employee, no
claim for payment has been filed by a person entitled under the
order of precedence named by subsection (a) of this section,
and neither the Office nor the administrative office
established by the company concerned pursuant to section
8709(b) of this title has received notice that such a claim
will be made, payment may be made to the claimant who in the
judgment of the Office is equitably entitled thereto, and the
payment bars recovery by any other person.
(d) If, within 4 years after the death of the employee,
payment has not been made under this section and no claim for
payment by a person entitled under this section is pending, the
amount payable escheats to the credit of the Employees' Life
Insurance Fund.
(e)(1) Any amount which would otherwise be paid to a person
determined under the order of precedence named by subsection
(a) shall be paid (in whole or in part) by the Office to
another person if and to the extent expressly provided for in
the terms of any court decree of divorce, annulment, or legal
separation, or the terms of any court order or court-approved
property settlement agreement incident to any court decree of
divorce, annulment, or legal separation.
(2) For purposes of this subsection, a decree, order, or
agreement referred to in paragraph (1) shall not be effective
unless it is received, before the date of the covered
employee's death, by the employing agency or, if the employee
has separated from service, by the Office.
(3) A designation under this subsection with respect to any
person may not be changed except--
(A) with the written consent of such person, if
received as described in paragraph (2); or
(B) by modification of the decree, order, or
agreement, as the case may be, if received as described
in paragraph (2).
(4) The Office shall prescribe any regulations necessary to
carry out this subsection, including regulations for the
application of this subsection in the event that two or more
decrees, orders, or agreements, are received with respect to
the same amount.
Sec. 8706. Termination of insurance; assignment of ownership
(a) A policy purchased under this chapter shall contain a
provision, approved by the Office of Personnel Management, to
the effect that insurance of an employee stops on his
separation from the service or 12 months after discontinuance
of his pay, whichever is earlier, subject to a provision for
temporary extension of life insurance coverage and for
conversion to an individual policy of life insurance under
conditions approved by the Office. Justices and judges of the
United States described in section 8701(a)(5) (ii) and (iii) of
this chapter are deemed to continue in active employment for
purposes of this chapter.
(b)(1) In the case of any employee who retires on an
immediate annuity and has been insured under this chapter
throughout--
(A) the 5 years of service immediately preceding
the date of the employee's retirement, or
(B) the full period or periods of service during
which the employee was entitled to be insured, if fewer
than 5 years,
life insurance, without accidental death and dismemberment
insurance, may be continued, under conditions determined by the
Office.
(2) In the case of any employee who becomes entitled to
receive compensation under subchapter I of chapter 81 of this
title because of disease or injury to the employee and has been
insured under this chapter throughout--
(A) the 5 years of service immediately preceding
the date the employee becomes entitled to compensation,
or
(B) the full period or periods of service during
which the employee was entitled to be insured, if fewer
than 5 years,
life insurance, without accidental death and dismemberment
insurance, may be continued, under conditions determined by the
Office, during the period the employee is receiving
compensation and is held by the Secretary of Labor or the
Secretary's delegate to be unable to return to duty.
(3) The amount of life insurance continued under paragraph
(1) or (2) of this subsection shall be continued, with or
without reduction, at the end of each full calendar month after
the date the employee becomes 65 years of age and is retired or
is receiving compensation for disease or injury, in accordance
with the employee's written election at the time eligibility to
continue insurance during retirement or receipt of compensation
arises, as follows:
(A) the employee may elect to have the deductions
required by section 8707 of this title withheld from
annuity or compensation, and the employee's life
insurance shall be reduced each month by 2 percent of
the face value until 25 percent of the amount of life
insurance in force before the first reduction remains;
or
(B) in addition to any deductions which would be
required if the insurance were continued as provided
under subparagraph (A) of this paragraph, the employee
may elect continuous withholdings from annuity or
compensation in amounts determined by the Office, and
the employee's life insurance coverage shall be either
continued without reduction or reduced each month by no
more than 1 percent of its face value until no less
than 50 percent of the amount of insurance in force
before the first reduction remains.
(4) If an employee elects to continue insurance under
subparagraph (B) of paragraph (3) of this subsection at the
time eligibility to continue insurance during retirement or
receipt of compensation for disease or injury arises, the
individual may later cancel that election and life insurance
coverage shall continue as if the individual had originally
elected coverage under subparagraph (A) of paragraph (3) of
this subsection.
(c) Notwithstanding subsections (a) and (b) of this
section, an employee who enters on approved leave without pay
to serve as a full-time officer or employee of an organization
composed primarily of employees as defined by section 8701(a)
of this title, within 60 days after entering on that leave
without pay, may elect to continue his insurance and arrange to
pay currently into the Employees' Life Insurance Fund, through
his employing agency, both employee and agency contributions
from the beginning of leave without pay. The employing agency
shall forward the premium payments to the Fund. If the employee
does not so elect, his insurance will continue during nonpay
status and stop as provided by subsection (a) of this section.
(d) If the insurance of an employee stops because of
separation from the service or suspension without pay, and the
separation or suspension is thereafter officially found to have
been erroneous, the employee is deemed to have been insured
during the period of erroneous separation or suspension.
Deductions otherwise required by section 8707 of this chapter
shall not be withheld from any backpay awarded for the period
of separation or suspension unless death or accidental
dismemberment of the employee occurs during such period.
(e)(1) Under regulations prescribed by the Office, each
policy purchased under this chapter shall provide that an
insured employee or former employee may make an irrevocable
assignment of the employee's or former employee's incidents of
ownership in the policy.
(2) A court decree of divorce, annulment, or legal
separation, or the terms of a court-approved property
settlement agreement incident to any court decree of divorce,
annulment, or legal separation, may direct that an insured
employee or former employee make an irrevocable assignment of
the employee's or former employee's incidents of ownership in
insurance under this chapter (if there is no previous
assignment) to the person specified in the court order or
court-approved property settlement agreement.
(f) If the insurance of a former employee receiving a
disability annuity under section 8337 of this title stops
because of the termination of such annuity, and such annuity is
thereafter restored under the second or third sentence of
subsection (e) of such section, such former employee may, under
regulations prescribed by the Office, elect to resume the
insurance coverage which was so stopped.
(g) The insurance of an employee under a policy purchased
under section 8709 shall not be invalidated based on a finding
that the employee erroneously became insured, or erroneously
continued insurance upon retirement or entitlement to
compensation under subchapter I of chapter 81 of this title, if
such finding occurs after the erroneous insurance and
applicable withholdings have been in force for 2 years during
the employee's lifetime.
Sec. 8707. Employee deductions; withholding
(a) Subject to subsection (c)(2), during each period in
which an employee is insured under a policy purchased by the
Office of Personnel Management under section 8709 of this
title, there shall be withheld from the employee's pay a share
of the cost of the group life insurance and accidental death
and dismemberment insurance.
(b)(1) Subject to subsection (c)(2), whenever life
insurance continues after an employee retires on an immediate
annuity or while the employee is receiving compensation under
subchapter I of chapter 81 of this title because of disease or
injury to the employee, as provided in section 8706(b) of this
title, deductions for insurance shall be withheld from the
employee's annuity or compensation, except that, in any case in
which the insurance is continued as provided in section
8706(b)(3)(A) of this title, the deductions shall not be made
for months after the calendar month in which the employee
becomes 65 years of age.
(2) Notwithstanding paragraph (1) of this subsection,
insurance shall be so continued without cost (other than as
provided under section 8706(b)(3)(B)) to each employee who so
retires, or commences receiving compensation, on or before
December 31, 1989.
(c)(1) The amount withheld from the pay, annuity, or
compensation of each employee subject to insurance deductions
shall be at the rate, adjusted to the nearest half-cent, of
66\2/3\ percent of the level cost as determined by the Office
for each $1,000 of the employee's basic insurance amount.
(2) An employee who is subject to withholdings under this
section and whose pay, annuity, or compensation is insufficient
to cover such withholdings may nevertheless continue insurance
if the employee arranges to pay currently into the Employees'
Life Insurance Fund, through the agency or retirement system
that administers pay, annuity, or compensation, an amount equal
to the withholdings that would otherwise be required under this
section.
(d) If an agency fails to withhold the proper amount of
life insurance deductions from an individual's salary,
compensation, or retirement annuity, the collection of unpaid
deductions may be waived by the agency if, in the judgment of
the agency, the individual is without fault and recovery would
be against equity and good conscience. However, if the agency
so waives the collection of unpaid deductions, the agency shall
submit an amount equal to the sum of the uncollected deductions
and related agency contributions required under section 8708 of
this title to the Office for deposit to the Employees' Life
Insurance Fund.
Sec. 8708. Government contributions
(a) For each period in which an employee is insured under a
policy of insurance purchased by the Office of Personnel
Management under section 8709 of this title, a sum equal to
one-half the amount which is withheld from the pay of the
employee under section 8707 of this title shall be contributed
from the appropriation or fund which is used to pay him.
(b) When an employee is paid by the Chief Administrative
Officer of the House of Representatives, the Chief
Administrative Officer may contribute the sum required by
subsection (a) of this section from the applicable accounts of
the House of Representatives.
(c) When the employee is an elected official, the sum
required by subsection (a) of this section is contributed from
an appropriation or fund available for payment of other
salaries of the same office or establishment.
(d)(1) Except as otherwise provided in this subsection, for
each period in which an employee continues life insurance after
retirement or while in receipt of compensation under subchapter
I of chapter 81 of this title because of disease or injury to
the employee, as provided under section 8706(b) of this title,
a sum equal to one-half of the amount which is withheld from
the employee's annuity or compensation under section 8707 of
this title shall be contributed by the Office from annual
appropriations which are authorized to be made for that purpose
and which may be made available until expended.
(2) Contributions under this subsection--
(A) shall not be made other than with respect to
individuals who retire, or commence receiving
compensation, after December 31, 1989;
(B) shall not be made with respect to any
individual for months after the calendar month in which
such individual becomes 65 years of age; and
(C) shall, in the case of any individual who elects
coverage under subparagraph (B) of section 8706(b)(3)
of this title, be equal to the amount which would apply
under this subsection if such individual had instead
elected coverage under subparagraph (A) of such
section.
(3) The United States Postal Service shall pay the
contributions required under this subsection with respect to
any individual who--
(A) first becomes an annuitant by reason or
retirement from employment with the United States
Postal Service after December 31, 1989; or
(B) commences receiving compensation under
subchapter I of chapter 81 of this title (because of
disease or injury to the individual) after December 31,
1989, if the position last held by the individual
before commencing to receive such compensation was
within the United States Postal Service.
Sec. 8709. Insurance policies
(a) The Office of Personnel Management, without regard to
section 5 of title 41, may purchase from one or more life
insurance companies a policy or policies of group life and
accidental death and dismemberment insurance to provide the
benefits specified by this chapter. A company must meet the
following requirements:
(1) It must be licensed to transact life and
accidental death and dismemberment insurance under the
laws of 48 of the States and the District of Columbia.
(2) It must have in effect, on the most recent
December 31 for which information is available to the
Office, an amount of employee group life insurance
equal to at least 1 percent of the total amount of
employee group life insurance in the United States in
all life insurance companies.
(b) A company issuing a policy under subsection (a) of this
section shall establish an administrative office under a name
approved by the Office.
(c) The Office at any time may discontinue a policy
purchased from a company under subsection (a) of this section.
(d)(1) The provisions of any contract under this chapter
which relate to the nature or extent of coverage or benefits
(including payments with respect to benefits) shall supersede
and preempt any law of any State or political subdivision
thereof, or any regulation issued thereunder, which relates to
group life insurance to the extent that the law or regulation
is inconsistent with the contractual provisions.
(2) For the purpose of this section, ``State'' means a
State of the United States, the District of Columbia, the
Commonwealth of Puerto Rico, and a territory or possession of
the United States.
Sec. 8710. Reinsurance
(a) The Office of Personnel Management shall arrange with a
company issuing a policy under this chapter for the
reinsurance, under conditions approved by the Office, of
portions of the total amount of insurance under the policy,
determined under this section, with other life insurance
companies which elect to participate in the reinsurance.
(b) The Office shall determine for and in advance of a
policy year which companies are eligible to participate as
reinsurers and the amount of insurance under a policy which is
to be allocated to the issuing company and to reinsurers. The
Office shall make this determination at least every 3 years and
when a participating company withdraws.
(c) The Office shall establish a formula under which the
amount of insurance retained by an issuing company after ceding
reinsurance, and the amount of reinsurance ceded to each
reinsurer, is in proportion to the total amount of each
company's group life insurance, excluding insurance purchased
under this chapter, in force in the United States on the
determination date, which is the most recent December 31 for
which information is available to the Office. In determining
the proportions, the portion of a company's group life
insurance in force on the determination date in excess of
$100,000,000 shall be reduced by--
(1) 25 percent of the first $100,000,000 of the
excess;
(2) 50 percent of the second $100,000,000 of the
excess;
(3) 75 percent of the third $100,000,000 of the
excess; and
(4) 95 percent of the remaining excess.
However, the amount retained by or ceded to a company may not
exceed 25 percent of the amount of the company's total life
insurance in force in the United States on the determination
date.
(d) A fraternal benefit association which is--
(1) licensed to transact life insurance under the
laws of a State or the District of Columbia; and
(2) engaged in issuing insurance certificates on
the lives of employees of the United States
exclusively;
is eligible to act as a reinsuring company and may be allocated
an amount of reinsurance equal to 25 percent of its total life
insurance in force on employees of the United States on the
determination date named by subsection (c) of this section.
(e) An issuing company or reinsurer is entitled, as a
minimum, to be allocated an amount of insurance under the
policy equal to any reduction from December 31, 1953, to the
determination date, in the amount of the company's group life
insurance under policies issued to associations of employees of
the United States. However, any increase under this subsection
in the amount allocated is reduced by the amount in force on
the determination date of any policy covering life insurance
agreements assumed by the Office.
(f) The Office may modify the computations under this
section as necessary to carry out the intent of this section.
Sec. 8711. Basic tables of premium rates
(a) A policy purchased under this chapter shall include,
for the first policy year, basic tables of premium rates as
follows:
(1) For group life insurance, a schedule of basic
premium rates by age which the Office of Personnel
Management determines to be consistent with the lowest
schedule of basic premium rates generally charged for
new group life insurance policies issued to large
employers.
(2) For group accidental death and dismemberment
insurance, a basic premium rate which the Office
determines is consistent with the lowest rate generally
charged for new group accidental death and
dismemberment policies issued to large employers.
The schedule for group life insurance, except as otherwise
provided by this section, shall be applied to the distribution
by age of the amounts of group life insurance under the policy
at its date of issuance to determine an average basic premium
rate per $1,000 of life insurance.
(b) The policy shall provide that the basic premium rates
determined for the first policy year continue for later policy
years except as readjusted for a later year based on experience
under the policy. The company issuing the policy may make the
readjustment on a basis that the Office determines in advance
of the policy year is consistent with the general practice of
life insurance companies under policies of group life and group
accidental death and dismemberment insurance issued to large
employers.
(c) The policy shall provide that if the Office determines
that ascertaining the actual age distribution of the amounts of
group life insurance in force at the date of issue of the
policy or at the end of the first or any later year of
insurance thereunder would not be possible except at a
disproportionately high expense, the Office may approve the
determination of a tentative average group life premium rate,
for the first or any later policy year, instead of using the
actual age distribution. The Office, on request by the company
issuing the policy, shall redetermine the tentative average
premium rate during any policy year, if experience indicates
that the assumptions made in determining that rate were
incorrect for that year.
(d) The policy shall stipulate the maximum expense and risk
charges for the first policy year. The Office shall determine
these charges on a basis consistent with the general level of
charges made by life insurance companies under policies of
group life and accidental death and dismemberment insurance
issued to large employers. The maximum charges continue from
year to year, except that the Office may redetermine them for
any year either by agreement with the company issuing the
policy or on written notice given to the company at least 1
year before the beginning of the year for which the
redetermined maximum charges will be effective.
Sec. 8712. Annual accounting; special contingency reserve
A policy purchased under this chapter shall provide for an
accounting to the Office of Personnel Management not later than
90 days after the end of each policy year. The accounting shall
set forth, in a form approved by the Office--
(1) the amounts of premiums actually accrued under
the policy from its date of issue to the end of the
policy year;
(2) the total of all mortality and other claim
charges incurred for that period; and
(3) the amounts of the insurers' expense and risk
charges for that period.
An excess of the total of paragraph (1) of this section over
the sum of paragraphs (2) and (3) of this section shall be held
by the company issuing the policy as a special contingency
reserve to be used by the company only for charges under the
policy. The reserve shall bear interest at a rate determined in
advance of each policy year by the company and approved by the
Office as being consistent with the rate generally used by the
company for similar funds held under other group life insurance
policies. When the Office determines that the special
contingency reserve has attained an amount estimated by it to
make satisfactory provision for adverse fluctuations in future
charges under the policy, any further excess shall be deposited
in the Treasury of the United States to the credit of the
Employees' Life Insurance Fund. When a policy is discontinued,
any balance remaining in the special contingency reserve after
all charges have been made shall be deposited in the Treasury
to the credit of the Fund. The company may make the deposit in
equal monthly installments over a period of not more than 2
years.
Sec. 8713. Effect of other statutes
Any provision of law outside of this chapter which provides
coverage or any other benefit under this chapter to any
individuals who (based on their being employed by an entity
other than the Government) would not otherwise be eligible for
any such coverage or benefit shall not apply with respect to
any individual appointed, transferred, or otherwise commencing
that type of employment on or after October 1, 1988.
Sec. 8714. Employees' Life Insurance Fund
(a) The amounts withheld from employees under section 8707
of this title and the sums contributed from appropriations and
funds under section 8708 of this title shall be deposited in
the Treasury of the United States to the credit of the
Employees' Life Insurance Fund. The Fund is available without
fiscal year limitation for--
(1) premium payments under an insurance policy
purchased under this chapter; and
(2) expenses incurred by the Office of Personnel
Management in the administration of this chapter within
the limitations that may be specified annually by
appropriation acts.
(b) The Secretary of the Treasury may invest and reinvest
any of the money in the Fund in interest-bearing obligations of
the United States, and may sell these obligations for the
purposes of the Fund. The interest on and the proceeds from the
sale of these obligations, and the income derived from dividend
or premium rate adjustments from insurers, become a part of the
Fund.
(c)(1) No tax, fee, or other monetary payment may be
imposed or collected by any State, the District of Columbia, or
the Commonwealth of Puerto Rico, or by any political
subdivision or other governmental authority thereof, on, or
with respect to, any premium paid under an insurance policy
purchased under this chapter.
(2) Paragraph (1) of this subsection shall not be construed
to exempt any company issuing a policy of insurance under this
chapter from the imposition, payment, or collection of a tax,
fee, or other monetary payment on the net income or profit
accruing to or realized by that company from business conducted
under this chapter, if that tax, fee, or payment is applicable
to a broad range of business activity.
Sec. 8714a. Optional insurance
(a) Under the conditions, directives, and terms specified
in sections 8709-8712 of this title, the Office of Personnel
Management, without regard to section 5 of title 41, may
purchase a policy which shall make available to each insured
employee equal amounts of optional life insurance and
accidental death and dismemberment insurance in addition to the
amounts provided in section 8704(a) of this title.
(b) The optional life insurance and accidental death and
dismemberment insurance shall be made available to each insured
employee under such conditions as the Office shall prescribe
and in amounts approved by the Office but not more than the
greater of $10,000 or an amount which, when added to the amount
provided in section 8704(a) of this title, makes the sum of his
insurance equal to his annual pay.
(c)(1) Except as otherwise provided in this subsection, the
optional insurance on an employee stops on his separation from
service or 12 months after discontinuance of his pay, whichever
is earlier, subject to a provision for temporary extension of
life insurance coverage and for conversion to an individual
policy of life insurance under conditions approved by the
Office.\1\
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\1\ Effective June 19, 1986, section 7(1) of P.L. 99-336 struck out
section 206 and inserted a new 206 to the ``Bankruptcy Amendments and
Federal Judgeship Act of 1984''. The new section 206 amends section
8714a(c)(1) of title 5, U.S.C. by inserting after the first sentence
the following new sentence: ``Justices and judges of the United States
described in section 8701(a)(5) (ii) and (iii) of this chapter are
deemed to continue in active employment for purposes of this
chapter.''. Effective January 1, 1987, section 207(k)(3) of P.L. 99-335
strikes subsection (c)(1) and inserts a new subsection (c)(1). As a
result, the sentence as added by 7(1) of P.L. 99-336 should probably be
added to subsection (c)(1) as amended by 207(k)(3) of P.L. 99-335.
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(2)(A) In the case of any employee who retires on an
immediate annuity and has been insured under this section
throughout--
(i) the 5 years of service immediately preceding
the date of such retirement, or
(ii) the full period or periods of service during
which the employee was entitled to be insured, if less
than 5 years,
the amount of optional life insurance only which has been in
force throughout such period may be continued, under conditions
determined by the Office.
(B) In the case of any employee who becomes entitled to
receive compensation under subchapter I of chapter 81 of this
title because of disease or injury to the employee and has been
insured under this section throughout--
(i) the 5 years of service immediately preceding
the date such employee becomes entitled to such
compensation, or
(ii) the full period or periods of service during
which the employee was entitled to be insured, if less
than 5 years,
the amount of optional life insurance only which has been in
force throughout such period may be continued, under conditions
determined by the Office, during the period the employee is
receiving such compensation for disease or injury and is held
by the Secretary of Labor or his delegate to be unable to
return to duty.
(C) The amount of optional life insurance continued under
subparagraph (A) or subparagraph (B) of this paragraph shall be
reduced by 2 percent at the end of each full calendar month
after the date the employee becomes 65 years of age and is
retired or is receiving compensation for disease or injury. The
Office shall prescribe minimum amounts, not less than 25
percent of the amount of life insurance in force before the
first reduction, to which the insurance may be reduced.
(3) Notwithstanding paragraph (c)(1) of this section, \1\ a
justice or judge of the United States as defined by section
8701(a)(5) of this title who resigns his office without meeting
the requirements of section 371(a) of title 28, United States
Code, for continuation of the judicial salary shall have the
right to convert regular optional life insurance coverage
issued under this section during his judicial service to an
individual policy of life insurance under the same conditions
approved by the Office governing conversion of basic life
insurance coverage for employees eligible as provided in
section 8706(a) of this title.
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\1\ So in original. Probably should be ``paragraph (1) of this
subsection,''.
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(d)(1) During each period in which an employee has the
optional insurance the full cost thereof shall be withheld from
his pay. During each period in which an employee continues
optional life insurance after retirement or while in receipt of
compensation for work injuries, as provided in section 8706(b)
of this title, the full cost thereof shall be withheld from his
annuity or compensation, except that, at the end of the
calendar month in which he becomes 65 years of age, the
optional life insurance shall be without cost to him. Amounts
so withheld shall be deposited, used, and invested as provided
in section 8714 of this title and shall be reported and
accounted for separately from amounts withheld and contributed
under sections 8707 and 8708 of this title.
(2) If an agency fails to withhold the proper cost of
optional insurance from an individual's salary, compensation,
or retirement annuity, the collection of amounts properly due
may be waived by the agency if, in the judgment of the agency,
the individual is without fault and recovery would be against
equity and good conscience. However, if the agency so waives
the collection of any unpaid amount, the agency shall submit an
amount equal to the uncollected amount to the Office for
deposit to the Employees' Life Insurance Fund.
(3) Notwithstanding paragraph (1), an employee who is
subject to withholdings under this subsection and whose pay,
annuity, or compensation is insufficient to cover such
withholdings may nevertheless continue optional insurance if
the employee arranges to pay currently into the Employees' Life
Insurance Fund, through the agency or retirement system which
administers pay, annuity, or compensation, an amount equal to
the withholdings that would otherwise be required under this
subsection.
(e) The cost of the optional insurance shall be determined
from time to time by the Office on the basis of such age groups
as it considers appropriate.
(f) The amount of optional life, or life and accidental
death, insurance in force on an employee at the date of his
death shall be paid as provided in section 8705 of this title.
Sec. 8714b. Additional optional life insurance
(a) Under the conditions, directives, and terms specified
in sections 8709 through 8712 of this title, the Office of
Personnel Management, without regard to section 5 of title 41,
may purchase a policy which shall make available to each
employee insured under section 8702 of this title amounts of
additional optional life insurance (without accidental death
and dismemberment insurance). An employee may elect coverage
under this section without regard to whether the employee has
elected coverage under optional insurance available under
section 8714a of this title.
(b) The additional optional insurance provided under this
section shall be made available to each eligible employee who
has elected coverage under this section, under conditions the
Office shall prescribe, in multiples, at the employee's
election, of 1, 2, 3, 4, or 5 times the annual rate of basic
pay payable to the employee (rounded to the next higher
multiple of $1,000). An employee may reduce or stop coverage
elected pursuant to this section at any time.
(c)(1) Except as otherwise provided in this subsection, the
additional optional insurance elected by an employee pursuant
to this section shall stop on separation for service or 12
months after discontinuance of his pay, whichever is earlier,
subject to a provision for temporary extension of life
insurance coverage and for conversion to an individual policy
of life insurance under conditions approved by the Office.
Justices and judges of the United States described in section
8701(a)(5) (ii) and (iii) of this chapter are deemed to
continue in active employment for purposes of this chapter. A
justice or judge of the United States as defined by section
8701(a)(5) of this title who resigns his office without meeting
the requirements of section 371(a) of title 28, United States
Code, for continuation of the judicial salary shall have the
right to convert additional optional life insurance coverage
issued under this section during his judicial service to an
individual policy of life insurance under the same conditions
approved by the Office governing conversion of basic life
insurance coverage for employees eligible as provided in
section 8706(a) of this title.
(2) In the case of any employee who retires on an immediate
annuity or who becomes entitled to receive compensation under
subchapter I of chapter 81 of this title because of disease or
injury to the employee, so much of the additional optional
insurance as has been in force for not less than--
(A) the 5 years of service immediately preceding
the date of retirement or entitlement to compensation,
or
(B) the full period or periods of service during
which the insurance was available to the employee, if
fewer than 5 years,
may be continued under conditions determined by the Office
after retirement or while the employee is receiving
compensation under subchapter I of chapter 81 of this title and
is held by the Secretary of Labor (or the Secretary's delegate)
to be unable to return to duty.\1\
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\1\ Section 7(a)(1) of the Federal Employees Life Insurance
Improvement Act (P.L. 105-311) repealed the last two sentences in
paragraph (2) and added new paragraphs (3) through (5). Section
11(e)(1) of such Act provides the following effective date:
``(1) In general.--Section 7 shall take effect on the first
day of the first pay period that begins on or after the 180th
day following the date of enactment of this Act [Oct. 30,
1998], or on any earlier date that the Office of Personnel
Management may prescribe that is at least 60 days after the
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date of enactment of this Act.''
The last two sentences of paragraph (2) which remain in effect
until that effective date read as follows: ``The amount of insurance
continued under this paragraph shall be reduced each month by 2 percent
effective at the beginning of the second calendar month after the date
the employee becomes 65 years of age and is retired or is in receipt of
compensation. The reduction shall continue for 50 months at which time
the insurance stops.''.
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(3) The amount of additional optional insurance continued
under paragraph (2) shall be continued, with or without
reduction, in accordance with the employee's written election
at the time eligibility to continue insurance during retirement
or receipt of compensation arises, as follows:
(A) The employee may elect to have withholdings
cease in accordance with subsection (d), in which
case--
(i) the amount of additional optional
insurance continued under paragraph (2) shall
be reduced each month by 2 percent effective at
the beginning of the second calendar month
after the date the employee becomes 65 years of
age and is retired or is in receipt of
compensation; and
(ii) the reduction under clause (i) shall
continue for 50 months at which time the
insurance shall stop.
(B) The employee may, instead of the option under
subparagraph (A), elect to have the full cost of
additional optional insurance continue to be withheld
from such employee's annuity or compensation on and
after the date such withholdings would otherwise cease
pursuant to an election under subparagraph (A), in
which case the amount of additional optional insurance
continued under paragraph (2) shall not be reduced,
subject to paragraph (4).
(C) An employee who does not make any election
under the preceding provisions of this paragraph shall
be treated as if such employee had made an election
under subparagraph (A).
(4) If an employee makes an election under paragraph
(3)(B), that individual may subsequently cancel such election,
in which case additional optional insurance shall be determined
as if the individual had originally made an election under
paragraph (3)(A).
(5)(A) An employee whose additional optional insurance
under this section would otherwise stop in accordance with
paragraph (1) and who is not eligible to continue insurance
under paragraph (2) may elect, under conditions prescribed by
the Office of Personnel Management, to continue all or a
portion of so much of the additional optional insurance as has
been in force for not less than--
(i) the 5 years of service immediately preceding
the date of the event which would cause insurance to
stop under paragraph (1); or
(ii) the full period or periods of service during
which the insurance was available to the employee, if
fewer than 5 years,
at group rates established for purposes of this section, in
lieu of conversion to an individual policy. The amount of
insurance continued under this paragraph shall be reduced by 50
percent effective at the beginning of the second calendar month
after the date the employee or former employee attains age 70
and shall stop at the beginning of the second calendar month
after attainment of age 80, subject to a provision for
temporary extension of life insurance coverage and for
conversion to an individual policy of life insurance under
conditions approved by the Office. Alternatively, insurance
continued under this paragraph may be reduced or stopped at any
time the employee or former employee elects.
(B) When an employee or former employee elects to continue
additional optional insurance under this paragraph following
separation from service or 12 months without pay, the insured
individual shall submit timely payment of the full cost
thereof, plus any amount the Office determines necessary to
cover associated administrative expenses, in such manner as the
Office shall prescribe by regulation. Amounts required under
this subparagraph shall be deposited, used, and invested as
provided under section 8714 and shall be reported and accounted
for together with amounts withheld under section 8714a(d).
(C)(i) Subject to clause (ii), no election to continue
additional optional insurance may be made under this paragraph
3 years after the effective date of this paragraph.
(ii) On and after the date on which an election may not be
made under clause (i), all additional optional insurance under
this paragraph for former employees shall terminate, subject to
a provision for temporary extension of life insurance coverage
and for conversion to an individual policy of life insurance
under conditions approved by the Office.
(d)(1) During each period in which the additional optional
insurance is in force on an employee the full cost thereof
shall be withheld from the employee's pay. During each period
in which an employee continues additional optional insurance
after retirement or while in receipt of compensation under
subchapter I of chapter 81 of this title because of disease or
injury to the employee, as provided in subsection (c) of this
section, the full cost thereof shall be withheld from the
former employee's annuity or compensation, except that, if
insurance is continued as provided under subsection
(c)(3)(A),\1\ beginning at the end of the calendar month in
which the former employee becomes 65 years of age, the
additional optional life insurance shall be without cost to the
former employee. Amounts so withheld (and any amounts withheld
as provided in subsection (c)(3)(B)) \2\ shall be deposited,
used, and invested as provided in section 8714 of this title
and shall be reported and accounted for together with amounts
withheld under section 8714a(d) of this title.
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\1\ Section 7(a)(2) of the Federal Employees Life Insurance
Improvement Act (P.L. 105-311) inserted ``, if insurance is continued''
through ``subsection (c)(3)(A),'' after ``except that,''. For effective
date see footnote to subsection (a)(2).
\2\ Section 7(c) of the Federal Employees Life Insurance
Improvement Act (P.L. 105-311) inserted ``(and any amounts'' through
``subsection (c)(3)(B))'' after ``Amounts so withheld''. For effective
date see footnote to subsection (a)(2).
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(2) If an agency fails to withhold the proper cost of
additional optional insurance from an individual's salary,
compensation, or retirement annuity, the collection of amounts
properly due may be waived by the agency if, in the judgment of
the agency, the individual is without fault and recovery would
be against equity and good conscience. However, if the agency
so waives the collection of any unpaid amount, the agency shall
submit an amount equal to the uncollected amount to the Office
for deposit to the Employees' Life Insurance Fund.
(3) Notwithstanding paragraph (1), an employee who is
subject to withholdings under this subsection and whose pay,
annuity, or compensation is insufficient to cover such
withholdings may nevertheless continue additional optional
insurance if the employee arranges to pay currently into the
Employees' Life Insurance Fund, through the agency or
retirement system which administers pay, annuity, or
compensation, an amount equal to the withholdings that would
otherwise be required under this subsection.
(e) The cost of the additional optional insurance shall be
determined from time to time by the Office on the basis of the
employee's age relative to such age groups as the Office
establishes under section 8714a(e) of this title.
(f) The amount of additional optional life insurance in
force on an employee at the date of his death shall be paid as
provided in section 8705 of this title.
Sec. 8714c. Optional life insurance on family members
(a) Under the conditions, directives, and terms specified
in sections 8709 through 8712 of this title, the Office of
Personnel Management, without regard to section 5 of title 41,
may purchase a policy which shall make available to each
employee insured under section 8702 of this title amounts of
optional life insurance (without accidental death and
dismemberment insurance) on the employee's family members.
(b)(1) \3\ The optional life insurance on family members
provided under this section shall be made available to each
eligible employee who has elected coverage under this section,
under conditions the Office shall prescribe, in multiples, at
the employee's election, of 1, 2, 3, 4, or 5 times--
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\3\ This subsection was amended in its entirety by section 8(a) of
the Federal Employees Life Insurance Improvement Act (P.L. 105-311).
Section 11(f) of such Public Law provides the following effective date:
``(f) Improved Optional Life Insurance on Family Members.--The
amendments made by section 8 shall take effect on the first day of the
first pay period which begins on or after the 180th day following the
date of enactment of this Act [Oct. 30, 1998] or on any earlier date
that the Office of Personnel Management may prescribe.''.
Subsection (b), as in effect prior to the amendment made by section
8(a) of P.L. 105-311, reads as follows:
``(b) The optional life insurance on family members provided under
this section shall be made available to each eligible employee who
elects converage under this section, under conditions the Office shall
prescribe, in the amount of $5,000 for a spouse and $2,500 for each
child described in section 8701(d). The employee may stop coverage
elected under this section at any time.''.
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(A) $5,000 for a spouse; and
(B) $2,500 for each child described under section
8701(d).
(2) An employee may reduce or stop coverage elected
pursuant to this section at any time.
(c)(1) Except as otherwise provided in this subsection, the
optional life insurance on family members shall stop at the
earlier of the employee's death, the employee's separation from
the service, for temporary extension of life insurance coverage
and for conversion to individual policies of life insurance
under conditions approved by the Office.\1\
\1\ Effective June 19, 1986, section 7(1) of P.L. 99-336 struck out
section 206 and inserted a new 206 to the ``Bankruptcy Amendments and
Federal Judgeship Act of 1984''. The new section 206 amends section
8714c(c)(1) of title 5, U.S.C. by inserting after the first sentence
the following new sentence: ``Justices and judges of the United States
described in section 8701(a)(5) (ii) and (iii) of this chapter are
deemed to continue in active employment for purposes of this
chapter.''. Effective January 1, 1987, section 207(k)(5) of P.L. 99-335
strikes subsection (c)(1) and inserts a new subsection (c)(1). As a
result, the sentence as added by 7(1) of P.L. 99-336 should probably be
added to subsection (c)(1) as amended by 207(k)(3) of P.L. 99-335.
---------------------------------------------------------------------------
(2) In the case of any employee who retires on an immediate
annuity or who becomes entitled to receive compensation under
subchapter I of chapter 81 of this title because of disease or
injury to the employee and who has had in force insurance under
this section for no less than--
(A) the 5 years of service immediately preceding
the date of retirement or entitlement to compensation,
or
(B) the full period or periods of service during
which the insurance was available to the employee, if
fewer than 5 years,
optional life insurance on family members may be continued
under the same conditions as provided in section 8714b(c) (2)
through (4).\2\
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\2\ Section 8(b) of the Federal Employees Life Insurance
Improvement Act (P.L. 105-311) amended subsection (c)(2) by striking
``section 8714b(c)(2) of this title'' and inserting ``section 8714b(c)
(2) through (4)'' and in subsection (d)(1), by inserting before the
last sentence the following: ``Notwithstanding the preceding sentence,
the full cost shall be continued after the calendar month in which the
former employee becomes 65 years of age if, and for so long as, an
election under this section corresponding to that described in section
8714b(c)(3)(B) remains in effect with respect to such former
employee.''. For effective date of these amendments see footnote in
subsection (b).
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(d)(1) During each period in which the optional life
insurance on family members is in force the full cost thereof
shall be withheld from the employee's pay. During each period
in which an employee continues optional life insurance on
family members after retirement or while in receipt of
compensation under subchapter I of chapter 81 of this title
because of disease or injury to the employee, as provided in
subsection (c) of this section, the full cost shall be withheld
from the annuity or compensation, except that, beginning at the
end of the calendar month in which the former employee becomes
65 years of age, the optional life insurance on family members
shall be without cost to the employee. Notwithstanding the
preceding sentence, the full cost shall be continued after the
calendar month in which the former employee becomes 65 years of
age if, and for so long as, an election under this section
corresponding to that described in section 8714b(c)(3)(B)
remains in effect with respect to such former employee.\1\
Amounts so withheld shall be deposited, used, and invested as
provided in section 8714 of this title and shall be reported
and accounted for together with amounts withheld under section
8714a(d) of this title.
---------------------------------------------------------------------------
\1\ For the effective date of this sentence, see footnote 2 on the
previous page.
---------------------------------------------------------------------------
(2) If an agency fails to withhold the proper cost of
optional life insurance on family members from an individual's
salary, compensation, or retirement annuity, the collection of
amounts properly due may be waived by the agency if, in the
judgment of the agency, the individual is without fault and
recovery would be against equity and good conscience. However,
if the agency so waives the collection of any unpaid amount,
the agency shall submit an amount equal to the uncollected
amount to the Office for deposit to the Employees' Life
Insurance Fund.
(3) Notwithstanding paragraph (1), an employee who is
subject to withholdings under this subsection and whose pay,
annuity, or compensation is insufficient to cover such
withholdings may nevertheless continue optional life insurance
on family members if the employee arranges to pay currently
into the Employees' Life Insurance Fund, through the agency or
retirement system that administers pay, annuity, or
compensation, an amount equal to the withholdings that would
otherwise be required under this subsection.
(e) The cost of the optional life insurance on family
members shall be determined from time to time by the Office on
the basis of the employee's age relative to such age groups as
the Office establishes under section 8714a(e) of this title.
(f) The amount of optional life insurance which is in force
under this section on a family member of an employee or former
employee on the date of the death of the family member shall be
paid, on the establishment of a valid claim by the employee, to
such employee or, in the event of the death of the employee
before payment can be made, to the person or persons entitled
to the group life insurance in force on the employee under
section 8705 of this title.
Sec. 8714d. Option to receive ``living benefits''
(a) For the purpose of this section, an individual shall be
considered to be ``terminally ill'' if such individual has a
medical prognosis that such individual's life expectancy is 9
months or less.
(b) The Office of Personnel Management shall prescribe
regulations under which any individual covered by group life
insurance under section 8704(a) may, if such individual is
terminally ill, elect to receive a lump-sum payment equal to--
(1) the full amount of insurance under section
8704(a) (or portion thereof designated for this purpose
under subsection (d)(4)) which would otherwise be
payable under this chapter (on the establishment of a
valid claim)--
(A) computed based on a date determined
under regulations of the Office (but not later
than 30 days after the date on which the
individual's application for benefits under
this section is approved or deemed approved
under subsection (d)(3)); and
(B) assuming continued coverage under this
chapter at that time;
reduced by
(2) an amount necessary to assure that there is no
increase in the actuarial value of the benefit paid (as
determined under regulations of the Office).
(c)(1) If a lump-sum payment is taken under this section--
(A) no insurance under the provisions of section
8704 (a) or (b) shall be payable based on the death or
any loss of the individual involved, unless the lump-
sum payment represents only a portion of the total
benefits which could have been taken, in which case
benefits under those provisions shall remain in effect,
except that the basic insurance amount on which they
are based--
(i) shall be reduced by the percentage
which the designated portion comprised relative
to the total benefits which could have been
taken (rounding the result to the nearest
multiple of $1,000 or, if midway between
multiples of $1,000, to the next higher
multiple of $1,000); and
(ii) shall not be subject to further
adjustment; and
(B) deductions and withholdings under section 8707,
and contributions under section 8708, shall be
terminated with respect to such individual (or reduced
in a manner consistent with the percentage reduction in
the individual's basic insurance amount, if
applicable), effective with respect to any amounts
which would otherwise become due on or after the date
of payment under this section.
(2) An individual who takes a lump-sum payment under this
section (whether full or partial) remains eligible for optional
benefits under sections 8714a-8714c (subject to payment of the
full cost of those benefits in accordance with applicable
provisions of the section or sections involved, to the same
extent as if no election under this section had been made).
(d)(1) The Office's regulations shall include provisions
regarding the form and manner in which an application under
this section shall be made and the procedures in accordance
with which any such application shall be considered.
(2) An application shall not be considered to be complete
unless it includes such information and supporting evidence as
the regulations require, including certification by an
appropriate medical authority as to the nature of the
individual's illness and that the individual is not expected to
live more than 9 months because of that illness.
(3)(A) In order to ascertain the reliability of any medical
opinion or finding submitted as part of an application under
this section, the covered individual may be required to submit
to a medical examination under the direction of the agency or
entity considering the application. The individual shall not be
liable for the costs associated with any examination required
under this subparagraph.
(B) Any decision by the reviewing agency or entity with
respect to an application for benefits under this section
(including one relating to an individual's medical prognosis)
shall not be subject to administrative review.
(4)(A) An individual making an election under this section
may designate that only a limited portion (expressed as a
multiple of $1,000) of the total amount otherwise allowable
under this section be paid pursuant to such election.
(B) A designation under this paragraph may not be made by
an individual described in paragraph (1) or (2) of section
8706(b).
(5) An election to receive benefits under this section
shall be irrevocable, and not more than one such election may
be made by any individual.
(6) The regulations shall include provisions to address the
question of how to apply section 8706(b)(3)(B) in the case of
an electing individual who has attained 65 years of age.
Sec. 8715. Jurisdiction of courts
The district courts of the United States have original
jurisdiction, concurrent with the United States Claims Court,
of a civil action or claim against the United States founded on
this chapter.
Sec. 8716. Regulations
(a) The Office of Personnel Management may prescribe
regulations necessary to carry out the purposes of this
chapter.
(b) The regulations of the Office may prescribe the time at
which and the conditions under which an employee is eligible
for coverage under this chapter. The Office, after consulting
the head of the agency or other employing authority concerned,
may exclude an employee on the basis of the nature and type of
his employment or conditions pertaining to it, such as short-
term appointment, seasonal, intermittent employment, and
employment of like nature. The Office may not exclude--
(1) an employee or group of employees solely on the
basis of the hazardous nature of employment;
(2) a teacher in the employ of the Board of
Education of the District of Columbia, whose pay is
fixed by section 1501 of title 31, District of Columbia
Code, on the basis of the fact that the teacher is
serving under a temporary appointment if the teacher
has been so employed by the Board for a period or
periods totaling not less than two school years; or
(3) an employee who is occupying a position on a
part-time career employment basis (as defined in
section 3401(2) of this title).
(c) The Secretary of Agriculture shall prescribe
regulations to effect the application and operation of this
chapter to an individual named by section 8701(a)(8) of this
title.
CHAPTER 89--HEALTH
INSURANCE
Sec.
8901. Definitions.
8902. Contracting authority.
8902a. Debarment and other sanctions.
8903. Health benefits plans.
8903a. Additional health benefits plans.
8903b. Authority to readmit an employee organization plan.
8904. Types of benefits.
8905. Election of coverage.
8905a. Continued coverage.
8906. Contributions.
8906a. Temporary employees.
8907. Information to individuals eligible to enroll.
8908. Coverage of restored employees and survivor or disability
annuitants.
8909. Employees Health Benefits Fund.
8910. Studies, reports, and audits.
8911. Advisory committee.
8912. Jurisdiction of courts.
8913. Regulations.
8914. Effect of other statutes.
Sec. 8901. Definitions
For the purpose of this chapter--
(1) ``employee'' means--
(A) an employee as defined by section 2105
of this title;
(B) a Member of Congress as defined by
section 2106 of this title;
(C) a Congressional employee as defined by
section 2107 of this title;
(D) the President;
(E) an individual first employed by the
government of the District of Columbia before
October 1, 1987;
(F) an individual employed by Gallaudet
College;
(G) an individual employed by a county
committee established under section 590h(b) of
title 16;
(H) an individual appointed to a position
on the office staff of a former President under
section 1(b) of the Act of August 25, 1958 (72
Stat. 838); and
(I) an individual appointed to a position
on the office staff of a former President, or a
former Vice President under section 4 of the
Presidential Transition Act of 1963, as amended
(78 Stat. 153), who immediately before the date
of such appointment was an employee as defined
under any other subparagraph of this paragraph;
but does not include--
(i) an employee of a corporation supervised
by the Farm Credit Administration if private
interests elect or appoint a member of the
board of directors;
(ii) an individual who is not a citizen or
national of the United States and whose
permanent duty station is outside the United
States, unless the individual was an employee
for the purpose of this chapter on September
30, 1979, by reason of service in an Executive
agency, the United States Postal Service, or
the Smithsonian Institution in the area which
was then known as the Canal Zone;
(iii) an employee of the Tennessee Valley
Authority; or
(iv) an employee excluded by regulation of
the Office of Personnel Management under
section 8913(b) of this title;
(2) ``Government'' means the Government of the
United States and the government of the District of
Columbia;
(3) ``annuitant'' means--
(A) an employee who retires--
(i) on an immediate annuity under
subchapter III of chapter 83 of this
title, or another retirement system for
employees of the Government, after 5 or
more years of service;
(ii) under section 8412 or 8414 of
this title;
(iii) for disability under
subchapter III of chapter 83 of this
title, chapter 84 of this title, or
another retirement system for employees
of the Government; or
(iv) on an immediate annuity under
a retirement system established for
employees described in section 2105(c),
in the case of an individual who
elected under section 8347(q)(2) or
8461(n)(2) to remain subject to such a
system;
(B) a member of a family who receives an
immediate annuity as the survivor of an
employee (including a family member entitled to
an amount under section 8442(b)(1)(A), whether
or not such family member is entitled to an
annuity under section 8442(b)(1)(B)) or of a
retired employee described by subparagraph (A)
of this paragraph;
(C) an employee who receives monthly
compensation under subchapter I of chapter 81
of this title and who is determined by the
Secretary of Labor to be unable to return to
duty; and
(D) a member of a family who receives
monthly compensation under subchapter I of
chapter 81 of this title as the surviving
beneficiary of--
(i) an employee who dies as a
result of injury or illness compensable
under that subchapter; or
(ii) a former employee who is
separated after having completed 5 or
more years of service and who dies
while receiving monthly compensation
under that subchapter and who has been
held by the Secretary to have been
unable to return to duty;
(4) ``service'', as used by paragraph (3) of this
section, means service which is creditable under
subchapter III of chapter 83 or chapter 84 of this
title;
(5) ``member of family'' means the spouse of an
employee or annuitant and an unmarried dependent child
under 22 years of age, including--
(A) an adopted child or recognized natural
child; and
(B) a stepchild or foster child but only if
the child lives with the employee or annuitant
in a regular parent-child relationship;
or such an unmarried dependent child regardless of age
who is incapable of self-support because of mental or
physical disability which existed before age 22;
(6) ``health benefits plan'' means a group
insurance policy or contract, medical or hospital
service agreement, membership or subscription contract,
or similar group arrangements provided by a carrier for
the purpose of providing, paying for, or reimbursing
expenses for health services;
(7) ``carrier'' means a voluntary association,
corporation, partnership, or other nongovernmental
organization which is lawfully engaged in providing,
paying for, or reimbursing the cost of, health services
under group insurance policies or contracts, medical or
hospital service agreements, membership or subscription
contracts, or similar group arrangements, in
consideration of premiums or other periodic charges
payable to the carrier, including a health benefits
plan duly sponsored or underwritten by an employee
organization and an association of organizations or
other entities described in this paragraph sponsoring a
health benefits plan;
(8) ``employee organization'' means--
(A) an association or other organization of
employees which is national in scope, or in
which membership is open to all employees of a
Government agency who are eligible to enroll in
a health benefits plan under this chapter and
which, after December 31, 1978, and before
January 1, 1980, applied to the Office for
approval of a plan provided under section
8903(3) of this title; and
(B) an association or other organization
which is national in scope, in which membership
is open only to employees, annuitants, or
former spouses, or any combination thereof, and
which, during the 90-day period beginning on
the date of enactment of section 8903a of this
title, applied to the Office for approval of a
plan provided under such section;
(9) ``dependent'', in the case of any child, means
that the employee or annuitant involved is either
living with or contributing to the support of such
child, as determined in accordance with such
regulations as the Office shall prescribe;
(10) ``former spouse'' means a former spouse of an
employee, former employee, or annuitant--
(A) who has not remarried before age 55
after the marriage to the employee, former
employee, or annuitant was dissolved,
(B) who was enrolled in an approved health
benefits plan under this chapter as a family
member at any time during the 18-month period
before the date of the dissolution of the
marriage to the employee, former employee, or
annuitant, and
(C)(i) who is receiving any portion of an
annuity under section 8345(j) or 8467 of this
title or a survivor annuity under section
8341(h) or 8445 of this title (or benefits
similar to either of the aforementioned annuity
benefits under a retirement system for
Government employees other than the Civil
Service Retirement System or the Federal
Employees' Retirement System),
(ii) as to whom a court order or a decree
referred to in section 8341(h), 8345(j), 8445,
or 8467 of this title (or similar provision of
law under any such retirement system other than
the Civil Service Retirement System or the
Federal Employees' Retirement System) has been
issued, or for whom an election has been made
under section 8339(j)(3) or 8417(b) of this
title (or similar provision of law), or
(iii) who is otherwise entitled to an
annuity or any portion of an annuity as a
former spouse under a retirement system for
Government employees,
except that such term shall not include any such
unremarried former spouse of a former employee whose
marriage was dissolved after the former employee's
separation from the service (other than by retirement);
and
(11) ``qualified clinical social worker'' means an
individual--
(A) who is licensed or certified as a
clinical social worker by the State in which
such individual practices; or
(B) who, if such State does not provide for
the licensing or certification of clinical
social workers--
(i) is certified by a national
professional organization offering
certification of clinical social
workers; or
(ii) meets equivalent requirements
(as prescribed by the Office).
Sec. 8902. Contracting authority
(a) The Office of Personnel Management may contract with
qualified carriers offering plans described by section 8903 or
8903a of this title, without regard to section 5 of title 41 or
other statute requiring competitive bidding. Each contract
shall be for a uniform term of at least 1 year, but may be made
automatically renewable from term to term in the absence of
notice of termination by either party.
(b) To be eligible as a carrier for the plan described by
section 8903(2) of this title, a company must be licensed to
issue group health insurance in all the States and the District
of Columbia.
(c) A contract for a plan described by section 8903(1) or
(2) of this title shall require the carrier--
(1) to reinsure with other companies which elect to
participate, under an equitable formula based on the
total amount of their group health insurance benefit
payments in the United States during the latest year
for which the information is available, to be
determined by the carrier and approved by the Office;
or
(2) to allocate its rights and obligations under
the contract among its affiliates which elect to
participate, under an equitable formula to be
determined by the carrier and the affiliates and
approved by the Office.
(d) Each contract under this chapter shall contain a
detailed statement of benefits offered and shall include such
maximums, limitations, exclusions, and other definitions of
benefits as the Office considers necessary or desirable.
(e) The Office may prescribe reasonable minimum standards
for health benefits plans described by section 8903 or 8903a of
this title and for carriers offering the plans. Approval of a
plan may be withdrawn only after notice and opportunity for
hearing to the carrier concerned without regard to subchapter
II of chapter 5 and chapter 7 of this title. The Office may
terminate the contract of a carrier effective at the end of the
contract term, if the Office finds that at no time during the
preceding two contract terms did the carrier have 300 or more
employees and annuitants, exclusive of family members, enrolled
in the plan.
(f) A contract may not be made or a plan approved which
excludes an individual because of race, sex, health status, or,
at the time of the first opportunity to enroll, because of age.
(g) A contract may not be made or a plan approved which
does not offer to each employee, annuitant, family member,
former spouse, or person having continued coverage under
section 8905a of this title whose enrollment in the plan is
ended, except by a cancellation of enrollment, a temporary
extension of coverage during which he may exercise the option
to convert, without evidence of good health, to a nongroup
contract providing health benefits. An employee, annuitant,
family member, former spouse, or person having continued
coverage under section 8905a of this title who exercises this
option shall pay the full periodic charges of the nongroup
contract.
(h) The benefits and coverage made available under
subsection (g) of this section are noncancelable by the carrier
except for fraud, over-insurance, or nonpayment of periodic
charges.
(i) Rates charged under health benefits plans described by
section 8903 or 8903a of this title shall reasonably and
equitably reflect the cost of the benefits provided. Rates
under health benefits plans described by section 8903(1) and
(2) of this title shall be determined on a basis which, in the
judgment of the Office, is consistent with the lowest schedule
of basic rates generally charged for new group health benefit
plans issued to large employers. The rates determined for the
first contract term shall be continued for later contract
terms, except that they may be readjusted for any later term,
based on past experience and benefit adjustments under the
later contract. Any readjustment in rates shall be made in
advance of the contract term in which they will apply and on a
basis which, in the judgment of the Office, is consistent with
the general practice of carriers which issue group health
benefit plans to large employers.
(j) Each contract under this chapter shall require the
carrier to agree to pay for or provide a health service or
supply in an individual case if the Office finds that the
employee, annuitant, family member, former spouse, or person
having continued coverage under section 8905a of this title is
entitled thereto under the terms of the contract.
(k)(1) When a contract under this chapter requires payment
or reimbursement for services which may be performed by a
clinical psychologist, optometrist, nurse midwife, nursing
school administered clinic, or nurse practitioner/clinical
specialist, licensed or certified as such under Federal or
State law, as applicable, or by a qualified clinical social
worker as defined in section 8901(11), an employee, annuitant,
family member, former spouse, or person having continued
coverage under section 8905a of this title covered by the
contract shall be free to select, and shall have direct access
to, such a clinical psychologist, qualified clinical social
worker, optometrist, nurse midwife, nursing school administered
clinic, or nurse practitioner/nurse clinical specialist without
supervision or referral by another health practitioner and
shall be entitled under the contract to have payment or
reimbursement made to him or on his behalf for the services
performed.
(2) Nothing in this subsection shall be considered to
preclude a health benefits plan from providing direct access or
direct payment or reimbursement to a provider in a health care
practice or profession other than a practice or profession
listed in paragraph (1), if such provider is licensed or
certified as such under Federal or State law.
(3) The provisions of this subsection shall not apply to
comprehensive medical plans as described in section 8903(4) of
this title.
(l) The Office shall contract under this chapter for a plan
described in section 8903(4) of this title with any qualified
health maintenance carrier which offers such a plan. For the
purpose of this subsection, ``qualified health maintenance
carrier'' means any qualified carrier which is a qualified
health maintenance organization within the meaning of section
1310(d)(1) of title XIII of the Public Health Service Act (42
U.S.C. 300c-9(d)).
(m)(1) The terms of any contract under this chapter which
relate to the nature, provision, or extent of coverage or
benefits (including payments with respect to benefits) shall
supersede and preempt any State or local law, or any regulation
issued thereunder, which relates to health insurance or plans.
(2)(A) Notwithstanding the provisions of paragraph (1) of
this subsection, if a contract under this chapter provides for
the provision of, the payment for, or the reimbursement of the
cost of health services for the care and treatment of any
particular health condition, the carrier shall provide, pay, or
reimburse up to the limits of its contract for any such health
service properly provided by any person licensed under State
law to provide such service if such service is provided to an
individual covered by such contract in a State where 25 percent
or more of the population is located in primary medical care
manpower shortage areas designated pursuant to section 332 of
the Public Health Service Act (42 U.S.C. 254e).
(B) The provisions of subparagraph (A) shall not apply to
contracts entered into providing prepayment plans described in
section 8903(4) of this title.
(n) A contract for a plan described by section 8903(1),
(2), or (3), or section 8903a, shall require the carrier--
(1) to implement hospitalization-cost-containment
measures, such as measures--
(A) for verifying the medical necessity of
any proposed treatment or surgery;
(B) for determining the feasibility or
appropriateness of providing services on an
outpatient rather than on an inpatient basis;
(C) for determining the appropriate length
of stay (through concurrent review or
otherwise) in cases involving inpatient care;
and
(D) involving case management, if the
circumstances so warrant; and
(2) to establish incentives to encourage compliance
with measures under paragraph (1).
(o) A contract may not be made or a plan approved which
includes coverage for any benefit, item, or service for which
funds may not be used under the Assisted Suicide Funding
Restriction Act of 1997.
Sec. 8902a. Debarment and other sanctions
(a)(1) For the purpose of this section--
(A) the term ``provider of health care services or
supplies'' or ``provider'' means a physician, hospital,
or other individual or entity which furnishes health
care services or supplies;
(B) the term ``individual covered under this
chapter'' or ``covered individual'' means an employee,
annuitant, family member, or former spouse covered by a
health benefits plan described by section 8903 or
8903a;
(C) an individual or entity shall be considered to
have been ``convicted'' of a criminal offense if--
(i) a judgment of conviction for such
offense has been entered against the individual
or entity by a Federal, State, or local court;
(ii) there has been a finding of guilt
against the individual or entity by a Federal,
State, or local court with respect to such
offense;
(iii) a plea of guilty or nolo contendere
by the individual or entity has been accepted
by a Federal, State, or local court with
respect to such offense; or
(iv) in the case of an individual, the
individual has entered a first offender or
other program pursuant to which a judgment of
conviction for such offense has been withheld;
without regard to the pendency or outcome of any appeal
(other than a judgment of acquittal based on innocence)
or request for relief on behalf of the individual or
entity; and
(D) the term ``should know'' means that a person,
with respect to information, acts in deliberate
ignorance of, or in reckless disregard of, the truth or
falsity of the information, and no proof of specific
intent to defraud is required;\1\
---------------------------------------------------------------------------
\1\ So in law. Probably should end with a period. See the amendment
made by section 2(a)(1) of Public Law 105-266 (112 Stat. 2363).
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(2)(A) Notwithstanding section 8902(j) or any other
provision of this chapter, if, under subsection (b), (c), or
(d), a provider is barred from participating in the program
under this chapter, no payment may be made by a carrier
pursuant to any contract under this chapter (either to such
provider or by reimbursement) for any service or supply
furnished by such provider during the period of the debarment.
(B) Each contract under this chapter shall contain such
provisions as may be necessary to carry out subparagraph (A)
and the other provisions of this section.
(b) The Office of Personnel Management shall bar the
following providers of health care services or supplies from
participating in the program under this chapter:
(1) Any provider that has been convicted, under
Federal or State law, of a criminal offense relating to
fraud, corruption, breach of fiduciary responsibility,
or other financial misconduct in connection with the
delivery of a health care service or supply.
(2) Any provider that has been convicted, under
Federal or State law, of a criminal offense relating to
neglect or abuse of patients in connection with the
delivery of a health care service or supply.
(3) Any provider that has been convicted, under
Federal or State law, in connection with the
interference with or obstruction of an investigation or
prosecution of a criminal offense described in
paragraph (1) or (2).
(4) Any provider that has been convicted, under
Federal or State law, of a criminal offense relating to
the unlawful manufacture, distribution, prescription,
or dispensing of a controlled substance.
(5) Any provider that is currently debarred,
suspended, or otherwise excluded from any procurement
or nonprocurement activity (within the meaning of
section 2455 of the Federal Acquisition Streamlining
Act of 1994).
(c) The Office may bar the following providers of health
care services from participating in the program under this
chapter:
(1) Any provider--
(A) whose license to provide health care
services or supplies has been revoked,
suspended, restricted, or not renewed, by a
State licensing authority for reasons relating
to the provider's professional competence,
professional performance, or financial
integrity; or
(B) that surrendered such a license while a
formal disciplinary proceeding was pending
before such an authority, if the proceeding
concerned the provider's professional
competence, professional performance, or
financial integrity.
(2) Any provider that is an entity directly or
indirectly owned, or with a control interest of 5
percent or more held, by an individual who has been
convicted of any offense described in subsection (b),
against whom a civil monetary penalty has been assessed
under subsection (d), or who has been debarred from
participation under this chapter.
(3) Any individual who directly or indirectly owns
or has a control interest in a sanctioned entity and
who knows or should know of the action constituting the
basis for the entity's conviction of any offense
described in subsection (b), assessment with a civil
monetary penalty under subsection (d), or debarment
from participation under this chapter.
(4) Any provider that the Office determines, in
connection with claims presented under this chapter,
has charged for health care services or supplies in an
amount substantially in excess of such provider's
customary charge for such services or supplies (unless
the Office finds there is good cause for such charge),
or charged for health care services or supplies which
are substantially in excess of the needs of the covered
individual or which are of a quality that fails to meet
professionally recognized standards for such services
or supplies.
(5) Any provider that the Office determines has
committed acts described in subsection (d).
Any determination under paragraph (4) relating to whether a
charge for health care services or supplies is substantially in
excess of the needs of the covered individual shall be made by
trained reviewers based on written medical protocols developed
by physicians. In the event such a determination cannot be made
based on such protocols, a physician in an appropriate
specialty shall be consulted.
(d) Whenever the Office determines--
(1) in connection with claims presented under this
chapter, that a provider has charged for a health care
service or supply which the provider knows or should
have known involves--
(A) an item or service not provided as
claimed;
(B) charges in violation of applicable
charge limitations under section 8904(b); or
(C) an item or service furnished during a
period in which the provider was debarred from
participation under this chapter pursuant to a
determination by the Office under this section,
other than as permitted under subsection
(g)(2)(B);
(2) that a provider of health care services or
supplies has knowingly made, or caused to be made, any
false statement or misrepresentation of a material fact
which is reflected in a claim presented under this
chapter; or
(3) that a provider of health care services or
supplies has knowingly failed to provide any
information required by a carrier or by the Office to
determine whether a payment or reimbursement is payable
under this chapter or the amount of any such payment or
reimbursement;
the Office may, in addition to any other penalties that may be
prescribed by law, and after consultation with the Attorney
General, impose a civil monetary penalty of not more than
$10,000 for any item or service involved. In addition, such a
provider shall be subject to an assessment of not more than
twice the amount claimed for each such item or service. In
addition, the Office may make a determination in the same
proceeding to bar such provider from participating in the
program under this chapter.
(e) The Office--
(1) may not initiate any debarment proceeding
against a provider, based on such provider's having
been convicted of a criminal offense, later than 6
years after the date on which such provider is so
convicted; and
(2) may not initiate any action relating to a civil
penalty, assessment, or debarment under this section,
in connection with any claim, later than 6 years after
the date the claim is presented, as determined under
regulations prescribed by the Office.
(f) In making a determination relating to the
appropriateness of imposing or the period of any debarment
under this section (where such debarment is not mandatory), or
the appropriateness of imposing or the amount of any civil
penalty or assessment under this section, the Office shall take
into account--
(1) the nature of any claims involved and the
circumstances under which they were presented;
(2) the degree of culpability, history of prior
offenses or improper conduct of the provider involved;
and
(3) such other matters as justice may require.
(g)(1)(A) Except as provided in subparagraph (B), debarment
of a provider under subsection (b) or (c) shall be effective at
such time and upon such reasonable notice to such provider, and
to carriers and covered individuals, as shall be specified in
regulations prescribed by the Office. Any such provider that is
debarred from participation may request a hearing in accordance
with subsection (h)(1).
(B) Unless the Office determines that the health or safety
of individuals receiving health care services warrants an
earlier effective date, the Office shall not make a
determination adverse to a provider under subsection (c)(5) or
(d) until such provider has been given reasonable notice and an
opportunity for the determination to be made after a hearing as
provided in accordance with subsection (h)(1).
(2)(A) Except as provided in subparagraph (B), a debarment
shall be effective with respect to any health care services or
supplies furnished by a provider on or after the effective date
of such provider's debarment.
(B) A debarment shall not apply with respect to inpatient
institutional services furnished to an individual who was
admitted to the institution before the date the debarment would
otherwise become effective until the passage of 30 days after
such date, unless the Office determines that the health or
safety of the individual receiving those services warrants that
a shorter period, or that no such period, be afforded.
(3) Any notice of debarment referred to in paragraph (1)
shall specify the date as of which debarment becomes effective
and the minimum period of time for which such debarment is to
remain effective. In the case of a debarment under paragraph
(1), (2), (3), or (4) of subsection (b), the minimum period of
debarment shall not be less than 3 years, except as provided in
paragraph (4)(B)(ii).
(4)(A) A provider barred from participating in the program
under this chapter may, after the expiration of the minimum
period of debarment referred to in paragraph (3), apply to the
Office, in such manner as the Office may by regulation
prescribe, for termination of the debarment.
(B) The Office may--
(i) terminate the debarment of a provider, pursuant
to an application filed by such provider after the end
of the minimum debarment period, if the Office
determines, based on the conduct of the applicant,
that--
(I) there is no basis under subsection (b),
(c), or (d) for continuing the debarment; and
(II) there are reasonable assurances that
the types of actions which formed the basis for
the original debarment have not recurred and
will not recur; or
(ii) notwithstanding any provision of subparagraph
(A), terminate the debarment of a provider, pursuant to
an application filed by such provider before the end of
the minimum debarment period, if the Office determines
that--
(I) based on the conduct of the applicant,
the requirements of subclauses (I) and (II) of
clause (i) have been met; and
(II) early termination under this clause is
warranted based on the fact that the provider
is the sole community provider or the sole
source of essential specialized services in a
community, or other similar circumstances.
(5) The Office shall--
(A) promptly notify the appropriate State or local
agency or authority having responsibility for the
licensing or certification of a provider barred from
participation in the program under this chapter of the
fact of the debarment, as well as the reasons for such
debarment;
(B) request that appropriate investigations be made
and sanctions invoked in accordance with applicable law
and policy; and
(C) request that the State or local agency or
authority keep the Office fully and currently informed
with respect to any actions taken in response to the
request.
(h)(1) Any provider of health care services or supplies
that is the subject of an adverse determination by the Office
under this section shall be entitled to reasonable notice and
an opportunity to request a hearing of record, and to judicial
review as provided in this subsection after the Office renders
a final decision. The Office shall grant a request for a
hearing upon a showing that due process rights have not
previously been afforded with respect to any finding of fact
which is relied upon as a cause for an adverse determination
under this section. Such hearing shall be conducted without
regard to subchapter II of chapter 5 and chapter 7 of this
title by a hearing officer who shall be designated by the
Director of the Office and who shall not otherwise have been
involved in the adverse determination being appealed. A request
for a hearing under this subsection shall be filed within such
period and in accordance with such procedures as the Office
shall prescribe by regulation.
(2) Any provider adversely affected by a final decision
under paragraph (1) made after a hearing to which such provider
was a party may seek review of such decision in the United
States District Court for the District of Columbia or for the
district in which the plaintiff resides or has his or her
principal place of business by filing a notice of appeal in
such court within 60 days after the date the decision is
issued, and by simultaneously sending copies of such notice by
certified mail to the Director of the Office and to the
Attorney General. In answer to the appeal, the Director of the
Office shall promptly file in such court a certified copy of
the transcript of the record, if the Office conducted a
hearing, and other evidence upon which the findings and
decision complained of are based. The court shall have power to
enter, upon the pleadings and evidence of record, a judgment
affirming, modifying, or setting aside, in whole or in part,
the decision of the Office, with or without remanding the case
for a rehearing. The district court shall not set aside or
remand the decision of the Office unless there is not
substantial evidence on the record, taken as whole, to support
the findings by the Office of a cause for action under this
section or unless action taken by the Office constitutes an
abuse of discretion.
(3) Matters that were raised or that could have been raised
in a hearing under paragraph (1) or an appeal under paragraph
(2) may not be raised as a defense to a civil action by the
United States to collect a penalty or assessment imposed under
this section.
(i) A civil action to recover civil monetary penalties or
assessments under subsection (d) shall be brought by the
Attorney General in the name of the United States, and may be
brought in the United States district court for the district
where the claim involved was presented or where the person
subject to the penalty resides. Amounts recovered under this
section shall be paid to the Office for deposit into the
Employees Health Benefits Fund. The amount of a penalty or
assessment as finally determined by the Office, or other amount
the Office may agree to in compromise, may be deducted from any
sum then or later owing by the United States to the party
against whom the penalty or assessment has been levied.
(j) The Office shall prescribe regulations under which,
with respect to services or supplies furnished by a debarred
provider to a covered individual during the period of such
provider's debarment, payment or reimbursement under this
chapter may be made, notwithstanding the fact of such
debarment, if such individual did not know or could not
reasonably be expected to have known of the debarment. In any
such instance, the carrier involved shall take appropriate
measures to ensure that the individual is informed of the
debarment and the minimum period of time remaining under the
terms of the debarment.
Sec. 8903. Health benefits plans
The Office of Personnel Management may contract for or
approve the following health benefits plans:
(1) Service Benefit Plan.--One Government-wide
plan, which may be underwritten by participating
affiliates licensed in any number of States, offering
two levels of benefits, under which payment is made by
a carrier under contracts with physicians, hospitals,
or other providers of health services for benefits of
the types described by section 8904(1) of this title
given to employees, annuitants, members of their
families, former spouses, or persons having continued
coverage under section 8905a of this title, or, under
certain conditions, payment is made by a carrier to the
employee, annuitant, family member, former spouse, or
person having continued coverage under section 8905a of
this title.
(2) Indemnity Benefit Plan.--One Government-wide
plan, offering two levels of benefits, under which a
carrier agrees to pay certain sums of money, not in
excess of the actual expenses incurred, for benefits of
the types described by section 8904(2) of this title.
(3) Employee Organization Plans.--Employee
organization plans which offer benefits of the types
referred to by section 8904(3) of this title, which are
sponsored or underwritten, and are administered, in
whole or substantial part, by employee organizations
described in section 8901(8)(A) of this title, which
are available only to individuals, and members of their
families, who at the time of enrollment are members of
the organization.
(4) Comprehensive Medical Plans.--
(A) Group-practice prepayment plans.--
Group-practice prepayment plans which offer
health benefits of the types referred to by
section 8904(4) of this title, in whole or in
substantial part on a prepaid basis, with
professional services thereunder provided by
physicians practicing as a group in a common
center or centers. The group shall include at
least 3 physicians who receive all or a
substantial part of their professional income
from the prepaid funds and who represent 1 or
more medical specialties appropriate and
necessary for the population proposed to be
served by the plan.
(B) Individual-practice prepayment plans.--
Individual-practice prepayment plans which
offer health services in whole or substantial
part on a prepaid basis, with professional
services thereunder provided by individual
physicians who agree, under certain conditions
approved by the Office, to accept the payments
provided by the plans as full payment for
covered services given by them including, in
addition to in-hospital services, general care
given in their offices and the patients' homes,
out-of-hospital diagnostic procedures, and
preventive care, and which plans are offered by
organizations which have successfully operated
similar plans before approval by the Office of
the plan in which employees may enroll.
(C) Mixed model prepayment plans.--Mixed
model prepayment plans which are a combination
of the type of plans described in subparagraph
(A) and the type of plans described in
subparagraph (B).
Sec. 8903a. Additional health benefits plans
(a) In addition to any plan under section 8903 of this
title, the Office of Personnel Management may contract for or
approve one or more health benefits plans under this section.
(b) A plan under this section may not be contracted for or
approved unless it--
(1) is sponsored or underwritten, and administered,
in whole or substantial part, by an employee
organization described in section 8901(8)(B) of this
title;
(2) offers benefits of the types named by paragraph
(1) or (2) of section 8904 of this title or both;
(3) provides for benefits only by paying for, or
providing reimbursement for, the cost of such benefits
(as provided for under paragraph (1) or (2) of section
8903 of this title) or a combination thereof; and
(4) is available only to individuals who, at the
time of enrollment, are full members of the
organization and to members of their families.
(c) A contract for a plan approved under this section shall
require the carrier--
(1) to enter into an agreement approved by the
Office with an underwriting subcontractor licensed to
issue group health insurance in all the States and the
District of Columbia; or
(2) to demonstrate ability to meet reasonable
minimum financial standards prescribed by the Office.
(d) For the purpose of this section, an individual shall be
considered a full member of an organization if such individual
is eligible to exercise all rights and privileges incident to
full membership in such organization (determined without regard
to the right to hold elected office).
Sec. 8903b. Authority to readmit an employee organization plan
(a) In the event that a plan described by section 8903(3)
or 8903a is discontinued under this chapter (other than in the
circumstance described in section 8909(d)), that
discontinuation shall be disregarded, for purposes of any
determination as to that plan's eligibility to be considered an
approved plan under this chapter, but only for purposes of any
contract year later than the third contract year beginning
after such plan is so discontinued.
(b) A contract for a plan approved under this section shall
require the carrier--
(1) to demonstrate experience in service delivery
within a managed care system (including provider
networks) throughout the United States; and
(2) if the carrier involved would not otherwise be
subject to the requirement set forth in section
8903a(c)(1), to satisfy such requirement.
Sec. 8904. Types of benefits
(a) The benefits to be provided under plans described by
section 8903 of this title may be of the following types:
(1) Service Benefit Plan.--
(A) Hospital benefits.
(B) Surgical benefits.
(C) In-hospital medical benefits.
(D) Ambulatory patient benefits.
(E) Supplemental benefits.
(F) Obstetrical benefits.
(2) Indemnity Benefit Plan.--
(A) Hospital care.
(B) Surgical care and treatment.
(C) Medical care and treatment.
(D) Obstetrical benefits.
(E) Prescribed drugs, medicines, and
prosthetic devices.
(F) Other medical supplies and services.
(3) Employee Organization Plans.--Benefits of the
types named under paragraph (1) or (2) of this
subsection or both.
(4) Comprehensive Medical Plans.--Benefits of the
types named under paragraph (1) or (2) of this
subsection or both.
All plans contracted for under paragraphs (1) and (2) of this
subsection shall include benefits both for costs associated
with care in a general hospital and for other health services
of a catastrophic nature.
(b)(1)(A) A plan, other than a prepayment plan described in
section 8903(4) of this title, may not provide benefits, in the
case of any retired enrolled individual who is age 65 or older
and is not covered to receive Medicare hospital and insurance
benefits under part A of title XVIII of the Social Security Act
(42 U.S.C. 1395c et seq.), to pay a charge imposed by any
health care provider, for inpatient hospital services which are
covered for purposes of benefit payments under this chapter and
part A of title XVIII of the Social Security Act, to the extent
that such charge exceeds applicable limitations on hospital
charges established for Medicare purposes under section 1886 of
the Social Security Act (42 U.S.C. 1395ww). Hospital providers
who have in force participation agreements with the Secretary
of Health and Human Services consistent with sections 1814(a)
and 1866 of the Social Security Act (42 U.S.C. 1395f(a) and
1395cc), whereby the participating provider accepts Medicare
benefits as full payment for covered items and services after
applicable patient copayments under section 1813 of such Act
(42 U.S.C 1395e) have been satisfied, shall accept equivalent
benefit payments and enrollee copayments under this chapter as
full payment for services described in the preceding sentence.
The Office of Personnel Management shall notify the Secretary
of Health and Human Services if a hospital is found to
knowingly and willfully violate this subsection on a repeated
basis and the Secretary may invoke appropriate sanctions in
accordance with section 1866(b)(2) of the Social Security Act
(42 U.S.C. 1395cc(b)(2)) and applicable regulations.
(B)(i) A plan, other than a prepayment plan described in
section 8903(4), may not provide benefits, in the case of any
retired enrolled individual who is age 65 or older and is not
entitled to Medicare supplementary medical insurance benefits
under part B of title XVIII of the Social Security Act (42
U.S.C. 1395j et seq.), to pay a charge imposed for physicians'
services (as defined in section 1848(j) of such Act, 42 U.S.C.
1395w-4(j)) which are covered for purposes of benefit payments
under this chapter and under such part, to the extent that such
charge exceeds the fee schedule amount under section 1848(a) of
such Act (42 U.S.C. 1395w-4(a)).
(ii) Physicians and suppliers who have in force
participation agreements with the Secretary of Health and Human
Services consistent with section 1842(h)(1) of such Act (42
U.S.C. 1395u(h)(1)), whereby the participating provider accepts
Medicare benefits (including allowable deductible and
coinsurance amounts) as full payment for covered items and
services shall accept equivalent benefit and enrollee cost-
sharing under this chapter as full payment for services
described in clause (i). Physicians and suppliers who are
nonparticipating physicians and suppliers for purposes of part
B of title XVIII of such Act shall not impose charges that
exceed the limiting charge under section 1848(g) of such Act
(42 U.S.C. 1395w-4(g)) with respect to services described in
clause (i) provided to enrollees described in such clause. The
Office of Personnel Management shall notify a physician or
supplier who is found to have violated this clause and inform
them of the requirements of this clause and sanctions for such
a violation. The Office of Personnel Management shall notify
the Secretary of Health and Human Services if a physician or
supplier is found to knowingly and willfully violate this
clause on a repeated basis and the Secretary of Health and
Human Services may invoke appropriate sanctions in accordance
with sections 1128A(a) and 1848(g)(1) of such Act (42 U.S.C.
1320a-7a(a), 1395w-4(g)(1)) and applicable regulations.
(C) If the Secretary of Health and Human Services
determines that a violation of this subsection warrants
excluding a provider from participation for a specified period
under title XVIII of the Social Security Act, the Office shall
enforce a corresponding exclusion of such provider for purposes
of this chapter.
(2) Notwithstanding any other provision of law, the
Secretary of Health and Human Services and the Director of the
Office of Personnel Management, and their agents, shall
exchange any information necessary to implement this
subsection.
(3)(A) Not later than December 1, 1991, and periodically
thereafter, the Secretary of Health and Human Services (in
consultation with the Director of the Office of Personnel
Management) shall supply to carriers of plans described in
paragraphs (1) through (3) of section 8903 the Medicare program
information necessary for them to comply with paragraph (1).
(B) For purposes of this paragraph, the term ``Medicare
program information'' includes (i) the limitations on hospital
charges established for Medicare purposes under section 1886 of
the Social Security Act (42 U.S.C. 1395ww) and the identity of
hospitals which have in force agreements with the Secretary of
Health and Human Services consistent with section 1814(a) and
1866 of the Social Security Act (42 U.S.C. 1395f(a) and
1395cc), and (ii) the fee schedule amounts and limiting charges
for physicians' services established under section 1848 of such
Act (42 U.S.C. 1395w-4) and the identity of participating
physicians and suppliers who have in force agreements with such
Secretary under section 1842(h) of such Act (42 U.S.C.
1395u(h)).
(4) The Director of the Office of Personnel Management
shall enter into an arrangement with the Secretary of Health
and Human Services, to be effective before the first day of the
fifth month that begins before each contract year, under
which--
(A) physicians and suppliers (whether or not
participating) under the Medicare program will be
notified of the requirements of paragraph (1)(B);
(B) enforcement procedures will be in place to
carry out such paragraph (including enforcement of
protections against overcharging of beneficiaries); and
(C) Medicare program information described in
paragraph (3)(B)(ii) will be supplied to carriers under
paragraph (3)(A).
Sec. 8905. Election of coverage
(a) An employee may enroll in an approved health benefits
plan described by section 8903 or 8903a of this title either as
an individual or for self and family.
(b) An annuitant who at the time he becomes an annuitant
was enrolled in a health benefits plan under this chapter--
(1) as an employee for a period of not less than--
(A) the 5 years of service immediately
before retirement;
(B) the full period or periods of service
between the last day of the first period, as
prescribed by regulations of the Office of
Personnel Management, in which he is eligible
to enroll in the plan and the date on which he
becomes an annuitant; or
(C) the full period or periods of service
beginning with the enrollment which became
effective before January 1, 1965, and ending
with the date on which he becomes an annuitant;
whichever is shortest; or
(2) as a member of the family of an employee or
annuitant;
may continue his enrollment under the conditions of eligibility
prescribed by regulations of the Office. The Office may, in its
sole discretion, waive the requirements of this subsection in
the case of an individual who fails to satisfy such
requirements if the Office determines that, due to exceptional
circumstances, it would be against equity and good conscience
not to allow such individual to be enrolled as an annuitant in
a health benefits plan under this chapter \1\
---------------------------------------------------------------------------
\1\ Probably should end with a period. See section 2(77)(A) of
Public Law 102-378 (106 Stat. 1355).
---------------------------------------------------------------------------
(c)(1) A former spouse may--
(A) within 60 days after the dissolution of the
marriage, or
(B) in the case of a former spouse of a former
employee whose marriage was dissolved after the
employee's retirement, within 60 days after the
dissolution of the marriage or, if later, within 60
days after an election is made under section 8339(j)(3)
or 8417(b) of this title for such former spouse by the
retired employee,
enroll in an approved health benefits plan described by section
8903 or 8903a of this title as an individual or for self and
family as provided in paragraph (2) of this subsection, subject
to agreement to pay the full subscription charge of the
enrollment, including the amounts determined by the Office to
be necessary for administration and reserves pursuant to
section 8909(b) of this title. The former spouse shall submit
an enrollment application and make premium payments to the
agency which, at the time of divorce or annulment, employed the
employee to whom the former spouse was married or, in the case
of a former spouse who is receiving annuity payments under
section 8341(h), 8345(j), 8445, or 8467 of this title, to the
Office of Personnel Management.
(2) Coverage for self and family under this subsection
shall be limited to--
(A) the former spouse; and
(B) unmarried dependent natural or adopted children
of the former spouse and the employee who are--
(i) under 22 years of age; or
(ii) incapable of self-support because of
mental or physical disability which existed
before age 22.
(d) An individual whom the Secretary of Defense determines
is an eligible beneficiary under subsection (b) of section 1108
of title 10 may enroll, as part of the demonstration project
under such section, in a health benefits plan under this
chapter in accordance with the agreement under subsection (a)
of such section between the Secretary and the Office and
applicable regulations under this chapter.
(e) If an employee, annuitant, or other individual eligible
to enroll in a health benefits plan under this chapter has a
spouse who is also eligible to enroll, either spouse, but not
both, may enroll for self and family, or each spouse may enroll
as an individual. However, an individual may not be enrolled
both as an employee, annuitant, or other individual eligible to
enroll and as a member of the family.
(f) An employee, annuitant, former spouse, or person having
continued coverage under section 8905a of this title enrolled
in a health benefits plan under this chapter may change his
coverage or that of himself and members of his family by an
application filed within 60 days after a change in family
status or at other times and under conditions prescribed by
regulations of the Office.
(g)(1) Under regulations prescribed by the Office, the
Office shall, before the start of any contract term in which--
(A) an adjustment is made in any of the rates
charged or benefits provided under a health benefits
plan described by section 8903 or 8903a of this title.
(B) a newly approved health benefits plan is
offered, or
(C) an existing plan is terminated,
provide a period of not less than 3 weeks during which any em-
ployee, annuitant, former spouse, or person having continued
coverage under section 8905a of this title enrolled in a health
benefits plan described by such section shall be permitted to
transfer that individual's enrollment to another such plan or
to cancel such enrollment.
(2) In addition to any opportunity afforded under paragraph
(1) of this subsection, an employee, annuitant, former spouse,
or person having continued coverage under section 8905a of this
title enrolled in a health benefits plan, under this chapter
shall be permitted to transfer that individual's enrollment to
another such plan, or to cancel such enrollment, at such other
times and subject to such conditions as the Office may
prescribe in regulations.
(3)(A) In addition to any informational requirements
otherwise applicable under this chapter, the regulations shall
include provisions to ensure that each employee eligible to
enroll in a health benefits plan under this chapter (whether
actually enrolled or not) is notified in writing as to the
rights afforded under section 8905a of this title.
(B) Notification under this paragraph shall be provided by
employing agencies at an appropriate point in time before each
period under paragraph (1) so that employees may be aware of
their rights under section 8905a of this title when making
enrollment decisions during such period.
(h)(1) An unenrolled employee who is required by a court or
administrative order to provide health insurance coverage for a
child who meets the requirements of section 8901(5) may enroll
for self and family coverage in a health benefits plan under
this chapter. If such employee fails to enroll for self and
family coverage in a health benefits plan that provides full
benefits and services in the location in which the child
resides, and the employee does not provide documentation
showing that such coverage has been provided through other
health insurance, the employing agency shall enroll the
employee in a self and family enrollment in the option which
provides the lower level of coverage under the Service Benefit
Plan.
(2) An employee who is enrolled as an individual in a
health benefits plan under this chapter and who is required by
a court or administrative order to provide health insurance
coverage for a child who meets the requirements of section
8901(5) may change to a self and family enrollment in the same
or another health benefits plan under this chapter. If such
employee fails to change to a self and family enrollment and
the employee does not provide documentation showing that such
coverage has been provided through other health insurance, the
employing agency shall change the enrollment of the employee to
a self and family enrollment in the plan in which the employee
is enrolled if that plan provides full benefits and services in
the location where the child resides. If the plan in which the
employee is enrolled does not provide full benefits and
services in the location in which the child resides, or, if the
employee fails to change to a self and family enrollment in a
plan that provides full benefits and services in the location
where the child resides, the employing agency shall change the
coverage of the employee to a self and family enrollment in the
option which provides the lower level of coverage under the
Service Benefits Plan.
(3) The employee may not discontinue the self and family
enrollment in a plan that provides full benefits and services
in the location in which the child resides for so long as the
court or administrative order remains in effect and the child
continues to meet the requirements of section 8901(5), unless
the employee provides documentation showing that such coverage
has been provided through other health insurance.
Sec. 8905a. Continued coverage
(a) Any individual described in paragraph (1) or (2) of
subsection (b) may elect to continue coverage under this
chapter in accordance with the provisions of this section.
(b) This section applies with respect to--
(1) any employee who--
(A) is separated from service, whether
voluntarily or involuntarily, except that if
the separation is involuntary, this section
shall not apply if the separation is for gross
misconduct (as defined under regulations which
the Office of Personnel Management shall
prescribe); and
(B) would not otherwise be eligible for any
benefits under this chapter (determined without
regard to any temporary extension of coverage
and without regard to any benefits available
under a nongroup contract); and
(2) any individual who--
(A) ceases to meet the requirements for
being considered an unmarried dependent child
under this chapter;
(B) on the day before so ceasing to meet
the requirements referred to in subparagraph
(A), was covered under a health benefits plan
under this chapter as a member of the family of
an employee or annuitant; and
(C) would not otherwise be eligible for any
benefits under this chapter (determined without
regard to any temporary extension of coverage
and without regard to any benefits available
under a nongroup contract).
(c)(1) The Office shall prescribe regulations and provide
for the inclusion of appropriate terms in contracts with
carriers to provide that--
(A) with respect to an employee who becomes (or
will become) eligible for continued coverage under this
section as a result of separation from service, the
separating agency shall, before the end of the 30-day
period beginning on the date as of which coverage
(including any temporary extensions of coverage) would
otherwise end, notify the individual of such
individual's rights under this section; and
(B) with respect to a child of an employee or
annuitant who becomes eligible for continued coverage
under this section as a result of ceasing to meet the
requirements for being considered a member of the
employee's or annuitant's family--
(i) the employee or annuitant may provide
written notice of the child's change in status
(complete with the child's name, address, and
such other information as the Office may by
regulation require)--
(I) to the employee's employing
agency; or
(II) in the case of an annuitant,
to the Office; and
(ii) if the notice referred to in clause
(i) is received within 60 days after the date
as of which the child involved first ceases to
meet the requirements involved, the employing
agency or the Office (as the case may be) must,
within 14 days after receiving such notice,
notify the child of such child's rights under
this section.
(2) In order to obtain continued coverage under this
section, an appropriate written election (submitted in such
manner as the Office by regulation prescribes) must be made--
(A) in the case of an individual seeking continued
coverage based on a separation from service, before the
end of the 60-day period beginning on the later of--
(i) the effective date of the separation;
or
(ii) the date the separated individual
receives the notice required under paragraph
(1)(A); or
(B) in the case of an individual seeking continued
coverage based on a change in circumstances making such
individual ineligible for coverage as an unmarried
dependent child, before the end of the 60-day period
beginning on the later of--
(i) the date as of which such individual
first ceases to meet the requirements for being
considered an unmarried dependent child; or
(ii) the date such individual receives
notice under paragraph (1)(B)(ii);
except that if a parent fails to provide the notice
required under paragraph (1)(B)(i) in timely fashion,
the 60-day period under this subparagraph shall be
based on the date under clause (i), irrespective of
whether or not any notice under paragraph (1)(B)(ii) is
provided.
(d)(1)(A) Except as provided in paragraphs (4) and (5), an
individual receiving continued coverage under this section
shall be required to pay currently into the Employees Health
Benefits Fund, under arrangements satisfactory to the Office,
an amount equal to the sum of--
(i) the employee and agency contributions which
would be required in the case of an employee enrolled
in the same health benefits plan and level of benefits;
and
(ii) an amount, determined under regulations
prescribed by the Office, necessary for administrative
expenses, but not to exceed 2 percent of the total
amount under clause (i).
(B) Payments under this section to the Fund shall--
(i) in the case of an individual whose continued
coverage is based on such individual's separation, be
made through the agency which last employed such
individual; or
(ii) in the case of an individual whose continued
coverage is based on a change in circumstances referred
to in subsection (c)(2)(B), be made through--
(I) the Office, if, at the time coverage
would (but for this section) otherwise have
been discontinued, the individual was covered
as the child of an annuitant; or
(II) if, at the time referred to in
subclause (I), the individual was covered as
the child of an employee, the employee's
employing agency as of such time.
(2) If an individual elects to continue coverage under this
section before the end of the applicable period under
subsection (c)(2), but after such individual's coverage under
this chapter (including any temporary extensions of coverage)
expires, coverage shall be restored retroactively, with
appropriate contributions (determined in accordance with
paragraph (1), (4), or (5) as the case may be) and claims (if
any), to the same extent and effect as though no break in
coverage had occurred.
(3)(A) An individual making an election under subsection
(c)(2)(B) may, at such individual's option, elect coverage
either as an individual or, if appropriate, for self and
family.
(B) For the purpose of this paragraph, members of an
individual's family shall be determined in the same way as
would apply under this chapter in the case of an enrolled
employee.
(C) Nothing in this paragraph shall be considered to limit
an individual making an election under subsection (c)(2)(A) to
coverage for self alone.
(4)(A) If the basis for continued coverage under this
section is an involuntary separation from a position, or a
voluntary separation from a surplus position, in or under the
Department of Defense due to a reduction in force, or the
Department of Energy due to a reduction in force resulting from
the establishment of the National Nuclear Security
Administration--
(i) the individual shall be liable for not more
than the employee contributions referred to in
paragraph (1)(A)(i); and
(ii) the agency which last employed the individual
shall pay the remaining portion of the amount required
under paragraph (1)(A).
(B) This paragraph shall apply with respect to any
individual whose continued coverage is based on a separation
occurring on or after the date of enactment of this paragraph
and before--
(i) October 1, 2003; or
(ii) February 1, 2004, if specific notice of such
separation was given to such individual before October
1, 2003.
(C) For the purpose of this paragraph, ``surplus position''
means a position which is identified in pre-reduction-in-force
planning as no longer required, and which is expected to be
eliminated under formal reduction-in-force procedures.
(5)(A) If the basis for continued coverage under this
section is an involuntary separation from a position in or
under the Department of Veterans Affairs due to a reduction in
force or a title 38 staffing readjustment, or a voluntary or
involuntary separation from a Department of Energy position at
a Department of Energy facility at which the Secretary is
carrying out a closure project selected under section 3143 of
the National Defense Authorization Act for Fiscal Year 1997 (42
U.S.C. 7274n)--
(i) the individual shall be liable for not more
than the employee contributions referred to in
paragraph (1)(A)(i); and
(ii) the agency which last employed the individual
shall pay the remaining portion of the amount required
under paragraph (1)(A).
(B) This paragraph shall only apply with respect to
individuals whose continued coverage is based on a separation
occurring on or after the date of the enactment of this
paragraph.
(e)(1) Continued coverage under this section may not extend
beyond--
(A) in the case of an individual whose continued
coverage is based on separation from service, the date
which is 18 months after the effective date of the
separation; or
(B) in the case of an individual whose continued
coverage is based on ceasing to meet the requirements
for being considered an unmarried dependent child, the
date which is 36 months after the date on which the
individual first ceases to meet those requirements,
subject to paragraph (2).
(2) In the case of an individual who--
(A) ceases to meet the requirements for being
considered an unmarried dependent child;
(B) as of the day before so ceasing to meet the
requirements referred to in subparagraph (A), was
covered as the child of a former employee receiving
continued coverage under this section based on the
former employee's separation from service; and
(C) so ceases to meet the requirements referred to
in subparagraph (A) before the end of the 18-month
period beginning on the date of the former employee's
separation from service,
extended coverage under this section may not extend beyond the
date which is 36 months after the separation date referred to
in subparagraph (C).
(f)(1) The Office shall prescribe regulations under which,
in addition to any individual otherwise eligible for continued
coverage under this section, and to the extent practicable,
continued coverage may also, upon appropriate written
application, be afforded under this section--
(A) to any individual who--
(i) if subparagraphs (A) and (C) of
paragraph (10) of section 8901 were
disregarded, would be eligible to be considered
a former spouse within the meaning of such
paragraph; but
(ii) would not, but for this subsection, be
eligible to be so considered; and
(B) to any individual whose coverage as a family
member would otherwise terminate as a result of a legal
separation.
(2) The terms and conditions for coverage under the
regulations shall include--
(A) consistent with subsection (c), any necessary
notification provisions, and provisions under which an
election period of at least 60 days' duration is
afforded;
(B) terms and conditions identical to those under
subsection (d), except that contributions to the
Employees Health Benefits Fund shall be made through
such agency as the Office by regulation prescribes;
(C) provisions relating to the termination of
continued coverage, except that continued coverage
under this section may not (subject to paragraph (3))
extend beyond the date which is 36 months after the
date on which the qualifying event under this
subsection (the date of divorce, annulment, or legal
separation, as the case may be) occurs; and
(D) provisions designed to ensure that any coverage
pursuant to this subsection does not adversely affect
any eligibility for coverage which the individual
involved might otherwise have under this chapter
(including as a result of any change in personal
circumstances) if this subsection had not been enacted.
(3) In the case of an individual--
(A) who becomes eligible for continued coverage
under this subsection based on a divorce, annulment, or
legal separation from a person who, as of the day
before the date of the divorce, annulment, or legal
separation (as the case may be) was receiving continued
coverage under this section for self and family based
on such person's separation from service; and
(B) whose divorce, annulment, or legal separation
(as the case may be) occurs before the end of the 18-
month period beginning on the date of the separation
from service referred to in subparagraph (A),
extended coverage under this section may not extend beyond the
date which is 36 months after the date of the separation from
service, as referred to in subparagraph (A).
Sec. 8906. Contributions
(a)(1) Not later than October 1 of each year, the Office of
Personnel Management shall determine the weighted average of
the subscription charges that will be in effect during the
following contract year with respect to--
(A) enrollments under this chapter for self alone;
and
(B) enrollments under this chapter for self and
family.
(2) In determining each weighted average under paragraph
(1), the weight to be given to a particular subscription charge
shall, with respect to each plan (and option) to which it is to
apply, be commensurate with the number of enrollees enrolled in
such plan (and option) as of March 31 of the year in which the
determination is being made.
(3) For purposes of paragraph (2), the term ``enrollee''
means any individual who, during the contract year for which
the weighted average is to be used under this section, will be
eligible for a Government contribution for health benefits.
(b)(1) Except as provided in paragraphs (2) and (3), the
biweekly Government contribution for health benefits for an
employee or annuitant enrolled in a health benefits plan under
this chapter is adjusted to an amount equal to 72 percent of
the weighted average under subsection (a)(1) (A) or (B), as
applicable. For an employee, the adjustment begins on the first
day of the employee's first pay period of each year. For an
annuitant, the adjustment begins on the first day of the first
period of each year for which an annuity payment is made.
(2) The biweekly Government contribution for an employee or
annuitant enrolled in a plan under this chapter shall not
exceed 75 percent of the subscription charge.
(3) In the case of an employee who is occupying a position
on a part-time career employment basis (as defined in section
3401(2) of this title), the biweekly Government contribution
shall be equal to the percentage which bears the same ratio to
the percentage determined under this subsection (without regard
to this paragraph) as the average number of hours of such
employee's regularly scheduled workweek bears to the average
number of hours in the regularly scheduled workweek of an
employee serving in a comparable position on a full-time career
basis (as determined under regulations prescribed by the
Office).
(4) In the case of persons who are enrolled in a health
benefits plan as part of the demonstration project under
section 1108 of title 10, the Government contribution shall be
subject to the limitation set forth in subsection (i) of that
section.
(c) There shall be withheld from the pay of each enrolled
employee and (except as provided in subsection (i) of this
section) the annuity of each enrolled annuitant and there shall
be contributed by the Government, amounts, in the same ratio as
the contributions of the employee or annuitant and the
Government under subsection (b) of this section, which are
necessary for the administrative costs and the reserves
provided for by section 8909(b) of this title.
(d) The amount necessary to pay the total charge for
enrollment, after the Government contribution is deducted,
shall be withheld from the pay of each enrolled employee and
(except as provided in subsection (i) of this section) from the
annuity of each enrolled annuitant. The withholding for an
annuitant shall be the same as that for an employee enrolled in
the same health benefits plan and level of benefits.
(e)(1)(A) An employee enrolled in a health benefits plan
under this chapter who is placed in a leave without pay status
may have his coverage and the coverage of members of his family
continued under the plan for not to exceed 1 year under
regulations prescribed by the Office.
(B) \1\ During each pay period in which an
enrollment continues under subparagraph (A)--
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\1\ So in original. The margin of this subparagraph probably should
be set full measure.
---------------------------------------------------------------------------
(i) employee and Government contributions
required by this section shall be paid on a
current basis; and
(ii) if necessary, the head of the
employing agency shall approve advance payment,
recoverable in the same manner as under section
5524a(c), of a portion of basic pay sufficient
to pay current employee contributions.
(C) \1\ Each agency shall establish procedures for
accepting direct payments of employee contributions for
the purposes of this paragraph.
(2) An employee who enters on approved leave without pay to
serve as a full-time officer or employee of an organization
composed primarily of employees as defined by section 8901 of
this title, within 60 days after entering on that leave without
pay, may file with his employing agency an election to continue
his health benefits enrollment and arrange to pay currently
into the Employees Health Benefits Fund, through his employing
agency, both employee and agency contributions from the
beginning of leave without pay. The employing agency shall
forward the enrollment charges so paid to the Fund. If the
employee does not so elect, his enrollment will continue during
nonpay status and end as provided by paragraph (1) of this
subsection and implementing regulations.
(f) The Government contributions for health benefits for an
employee shall be paid--
(1) in the case of employees generally, from the
appropriation or fund which is used to pay the
employee;
(2) in the case of an elected official, from an
appropriation or fund available for payment of other
salaries of the same office or establishment;
(3) in the case of an employee of the legislative
branch who is paid by the Chief Administrative Officer
of the House of Representatives, from the applicable
accounts of the House of Representatives; and
(4) in the case of an employee in a leave without
pay status, from the appropriation or fund which would
be used to pay the employee if he were in a pay status.
(g)(1) Except as provided in paragraphs (2) and (3), the
Government contributions authorized by this section for health
benefits for an annuitant shall be paid from annual
appropriations which are authorized to be made for that purpose
and which may be made available until expended.
(2)(A) The Government contributions authorized by this
section for health benefits for an individual who first becomes
an annuitant by reason of retirement from employment with the
United States Postal Service on or after July 1, 1971, or for a
survivor of such an individual or of an individual who died on
or after July 1, 1971, while employed by the United States
Postal Service, shall be paid by the United States Postal
Service.
(B) In determining any amount for which the Postal Service
is liable under this paragraph, the amount of the liability
shall be prorated to reflect only that portion of total service
which is attributable to civilian service performed (by the
former postal employee or by the deceased individual referred
to in subparagraph (A), as the case may be) after June 30,
1971, as estimated by the Office of Personnel Management.
(3) The Government contribution for persons enrolled in a
health benefits plan as part of the demonstration project under
section 1108 of title 10 shall be paid as provided in
subsection (i) of that section.
(h) The Office shall provide for conversion of biweekly
rates of contribution specified by this section to rates for
employees and annuitants paid on other than a biweekly basis,
and for this purpose may provide for the adjustment of the
converted rate to the nearest cent.
(i) An annuitant whose annuity is insufficient to cover the
withholdings required for enrollment in a particular health
benefits plan may enroll (or remain enrolled) in such plan,
notwithstanding any other provision of this section, if the
annuitant elects, under conditions prescribed by regulations of
the Office, to pay currently into the Employees Health Benefits
Fund, through the retirement system that administers the
annuitant's health benefits enrollment, an amount equal to the
withholdings that would otherwise be required under this
section.
Sec. 8906a. Temporary employees
(a)(1) The Office of Personnel Management shall prescribe
regulations to provide for offering health benefits plans to
temporary employees (who meet the requirements of paragraph
(2)) under the provisions of this chapter.
(2) To be eligible to participate in a health benefits plan
offered under this section a temporary employee shall have
completed 1 year of current continuous employment, excluding
any break in service of 5 days or less.
(b) Notwithstanding the provisions of section 8906--
(1) any temporary employee enrolled in a health
benefits plan under this section shall have an amount
withheld from the pay of such employee, as determined
by the Office of Personnel Management, equal to--
(A) the amount withheld from the pay of an
employee under the provisions of section 8906;
and
(B) the amount of the Government
contribution for an employee under section
8906; and
(2) the employing agency of any such temporary
employee shall not pay the Government contribution
under the provisions of section 8906.
Sec. 8907. Information to individuals eligible to enroll
(a) The Office of Personnel Management shall make available
to each individual eligible to enroll in a health benefits plan
under this chapter such information, in a form acceptable to
the Office after consultation with the carrier, as may be
necessary to enable the individual to exercise an informed
choice among the types of plans described by sections 8903 and
8903a of this title.
(b) Each enrollee in a health benefits plan shall be issued
an appropriate document setting forth or summarizing the--
(1) services or benefits, including maximums,
limitations, and exclusions, to which the enrollee or
the enrollee and any eligible family members are
entitled thereunder;
(2) procedure for obtaining benefits; and
(3) principal provisions of the plan affecting the
enrollee and any eligible family members.
Sec. 8908. Coverage of restored employees and survivor or disability
annuitants
(a) An employee enrolled in a health benefits plan under
this chapter who is removed or suspended without pay and later
reinstated or restored to duty on the ground that the removal
or suspension was unjustified or unwarranted may, at his
option, enroll as a new employee or have his coverage restored,
with appropriate adjustments made in contributions and claims,
to the same extent and effect as though the removal or
suspension had not taken place.
(b) A surviving spouse whose survivor annuity under this
title was terminated because of remarriage and is later
restored may, under such regulations as the Office of Personnel
Management may prescribe, enroll in a health benefits plan
described by section 8903 or 8903a of this title if such spouse
was covered by any such plan immediately before such annuity
was terminated.
(c) A disability annuitant whose disability annuity under
section 8337 of this title was terminated and is later restored
under the second or third sentence of subsection (e) of such
section may, under regulations prescribed by the Office, enroll
in a health benefits plan described by section 8903 or 8903a of
this title if such annuitant was covered by any such plan
immediately before such annuity was terminated.
(d) A surviving child whose survivor annuity under section
8341(e) or 8443(b) was terminated and is later restored under
paragraph (4) of section 8341(e) or the last sentence of
section 8443(b) may, under regulations prescribed by the
Office, enroll in a health benefits plan described by section
8903 or 8903a if such surviving child was covered by any such
plan immediately before such annuity was terminated.
Sec. 8909. Employees Health Benefits Fund
(a) There is in the Treasury of the United States an
Employees Health Benefits Fund which is administered by the
Office of Personnel Management. The contributions of enrollees
and the Government described by section 8906 of this title
shall be paid into the Fund. The Fund is available--
(1) without fiscal year limitation for all payments
to approved health benefits plans; and
(2) to pay expenses for administering this chapter
within the limitations that may be specified annually
by Congress.
Payments from the Fund to a plan participating in a letter-of-
credit arrangement under this chapter shall, in connection with
any payment or reimbursement to be made by such plan for a
health service or supply, be made, to the maximum extent
practicable, on a checks-presented basis (as defined under
regulations of the Department of the Treasury).
(b) Portions of the contributions made by enrollees and the
Government shall be regularly set aside in the Fund as follows:
(1) A percentage, not to exceed 1 percent of all
contributions, determined by the Office to be
reasonably adequate to pay the administrative expenses
made available by subsection (a) of this section.
(2) For each health benefits plan, a percentage,
not to exceed 3 percent of the contributions toward the
plan, determined by the Office to be reasonably
adequate to provide a contingency reserve.
The Office, from time to time and in amounts it considers
appropriate, may transfer unused funds for administrative
expenses to the contingency reserves of the plans then under
contract with the Office. When funds are so transferred, each
contingency reserve shall be credited in proportion to the
total amount of the subscription charges paid and accrued to
the plan for the contract term immediately before the contract
term in which the transfer is made. The income derived from
dividends, rate adjustments, or other refunds made by a plan
shall be credited to its contingency reserve. The contingency
reserves may be used to defray increases in future rates, or
may be applied to reduce the contributions of enrollees and the
Government to, or to increase the benefits provided by, the
plan from which the reserves are derived, as the Office from
time to time shall determine.
(c) The Secretary of the Treasury may invest and reinvest
any of the money in the Fund in interest-bearing obligations of
the United States, and may sell these obligations for the
purposes of the Fund. The interest on and the proceeds from the
sale of these obligations become a part of the Fund.
(d) When the assets, liabilities, and membership of
employee organizations sponsoring or underwriting plans
approved under section 8903(3) or 8903a of this title are
merged, the assets (including contingency reserves) and
liabilities of the plans sponsored or underwritten by the
merged organizations shall be transferred at the beginning of
the contract term next following the date of the merger to the
plan sponsored or underwritten by the successor organization.
Each employee, annuitant, former spouse, or person having
continued coverage under section 8905a of this title affected
by a merger shall be transferred to the plan sponsored or
underwritten by the successor organization unless he enrolls in
another plan under this chapter. If the successor organization
is an organization described in section 8901(8)(B) of this
title, any employee, annuitant, former spouse, or person having
continued coverage under section 8905a of this title so
transferred may not remain enrolled in the plan after the end
of the contract term in which the merger occurs unless that
individual is a full member of such organization (as determined
under section 8903a(d) of this title).
(e)(1) Except as provided by subsection (d) of this
section, when a plan described by section 8903(3) or (4) or
8903a of this title is discontinued under this chapter, the
contingency reserve of that plan shall be credited to the
contingency reserves of the plans continuing under this chapter
for the contract term following that in which termination
occurs, each reserve to be credited in proportion to the amount
of the subscription charges paid and accrued to the plan for
the year of termination.
(2) Any crediting required under paragraph (1) pursuant to
the discontinuation of any plan under this chapter shall be
completed by the end of the second contract year beginning
after such plan is so discontinued.
(3) The Office shall prescribe regulations in accordance
with which this subsection shall be applied in the case of any
plan which is discontinued before being credited with the full
amount to which it would otherwise be entitled based on the
discontinuation of any other plan.
(f)(1) No tax, fee, or other monetary payment may be
imposed, directly or indirectly, on a carrier or an
underwriting or plan administration subcontractor of an
approved health benefits plan by any State, the District of
Columbia, or the Commonwealth of Puerto Rico, or by any
political subdivision or other governmental authority thereof,
with respect to any payment made from the Fund.
(2) Paragraph (1) shall not be construed to exempt any
carrier or underwriting or plan administration subcontractor of
an approved health benefits plan from the imposition, payment,
or collection of a tax, fee, or other monetary payment on the
net income or profit accruing to or realized by such carrier or
underwriting or plan administration subcontractor from business
conducted under this chapter, if that tax, fee, or payment is
applicable to a broad range of business activity.
(g) The fund described in subsection (a) is available to
pay costs that the Office incurs for activities associated with
implementation of the demonstration project under section 1108
of title 10.
Sec. 8910. Studies, reports, and audits
(a) The Office of Personnel Management shall make a
continuing study of the operation and administration of this
chapter, including surveys and reports on health benefits plans
available to employees and on the experience of the plans.
(b) Each contract entered into under section 8902 of this
title shall contain provisions requiring carriers to--
(1) furnish such reasonable reports as the Office
determines to be necessary to enable it to carry out
its functions under this chapter; and
(2) permit the Office and representatives of the
General Accounting Office to examine records of the
carriers as may be necessary to carry out the purposes
of this chapter.
(c) Each Government agency shall keep such records, make
such certifications, and furnish the Office with such
information and reports as may be necessary to enable the
Office to carry out its functions under this chapter.
(d) The Office, in consultation with the Department of
Health and Human Services, shall develop and implement a system
through which the carrier for an approved health benefits plan
described by section 8903 or 8903a will be able to identify
those annuitants or other individuals covered by such plan who
are entitled to benefits under part A or B of title XVIII of
the Social Security Act in order to ensure that payments under
coordination of benefits with Medicare do not exceed the
statutory maximums which physicians may charge Medicare
enrollees.
Sec. 8911. Advisory committee
The Director of the Office of Personnel Management shall
appoint a committee composed of five members, who serve without
pay, to advise the Office regarding matters of concern to
employees under this chapter. Each member of the committee
shall be an employee enrolled under this chapter or an elected
official of an employee organization.
Sec. 8912. Jurisdiction of courts
The district courts of the United States have original
jurisdiction, concurrent with the United States Claims Court,
of a civil action or claim against the United States founded on
this chapter.
Sec. 8913. Regulations
(a) The Office of Personnel Management may prescribe
regulations necessary to carry out this chapter.
(b) The regulations of the Office may prescribe the time at
which and the manner and conditions under which an employee is
eligible to enroll in an approved health benefits plan
described in section 8903 or 8903a of this title. The
regulations may exclude an employee on the basis of the nature
and type of his employment or conditions pertaining to it, such
as short-term appointment, seasonal or intermittent employment,
and employment of like nature. The Office may not exclude--
(1) an employee or group of employees solely on the
basis of the hazardous nature of employment;
(2) a teacher in the employ of the Board of
Education of the District of Columbia, whose pay is
fixed by section 1501 of title 31, District of Columbia
Code, on the basis of the fact that the teacher is
serving under a temporary appointment if the teacher
has been so employed by the Board for a period or
periods totaling not less than two school years;
(3) an employee who is occupying a position on a
part-time career employment basis (as defined in
section 3401(2) of this title); or
(4) an employee who is employed on a temporary
basis and is eligible under section 8906a(a).
(c) The regulations of the Office shall provide for the
beginning and ending dates of coverage of employees,
annuitants, members of their families, and former spouses under
health benefit plans. The regulations may permit the coverage
to continue, exclusive of the temporary extension of coverage
described by section 8902(g) of this title, until the end of
the pay period in which an employee is separated from the
service, or until the end of the month in which an annuitant or
former spouse ceases to be entitled to annuity, and in case of
the death of an employee or annuitant, may permit a temporary
extension of the coverage of members of his family for not to
exceed 90 days.
(d) The Secretary of Agriculture shall prescribe
regulations to effect the application and operation of this
chapter to an individual named by section 8901(1) (H) of this
title.
Sec. 8914. Effect of other statutes
Any provision of law outside of this chapter which provides
coverage or any other benefit under this chapter to any
individuals who (based on their being employed by an entity
other than the Government) would not otherwise be eligible for
any such coverage or benefit shall not apply with respect to
any individual appointed, transferred, or otherwise commencing
that type of employment on or after October 1, 1988.
CHAPTER 90--LONG-TERM CARE INSURANCE
Sec.
9001. Definitions.
9002. Availability of insurance.
9003. Contracting authority.
9004. Financing.
9005. Preemption.
9006. Studies, reports, and audits.
9007. Jurisdiction of courts.
9008. Administrative functions.
9009. Cost accounting standards.
Sec. 9001. Definitions
For purposes of this chapter:
(1) Employee.--The term ``employee'' means--
(A) an employee as defined by section
8901(1);
(B) an individual described in section
2105(e); and
(C) an individual employed by the Tennessee
Valley Authority,
but does not include an individual employed by the
government of the District of Columbia.
(2) Annuitant.--The term ``annuitant'' has the
meaning such term would have under paragraph (3) of
section 8901 if, for purposes of such paragraph, the
term ``employee'' were considered to have the meaning
given to it under paragraph (1) of this subsection.
(3) Member of the uniformed services.--The term
``member of the uniformed services'' means a member of
the uniformed services, other than a retired member of
the uniformed services, who is--
(A) on active duty or full-time National
Guard duty for a period of more than 30 days;
and
(B) a member of the Selected Reserve.
(4) Retired member of the uniformed services.--The
term ``retired member of the uniformed services'' means
a member or former member of the uniformed services
entitled to retired or retainer pay, including a member
or former member retired under chapter 1223 of title 10
who has attained the age of 60 and who satisfies such
eligibility requirements as the Office of Personnel
Management prescribes under section 9008.
(5) Qualified relative.--The term ``qualified
relative'' means each of the following:
(A) The spouse of an individual described
in paragraph (1), (2), (3), or (4).
(B) A parent, stepparent, or parent-in-law
of an individual described in paragraph (1) or
(3).
(C) A child (including an adopted child, a
stepchild, or, to the extent the Office of
Personnel Management by regulation provides, a
foster child) of an individual described in
paragraph (1), (2), (3), or (4), if such child
is at least 18 years of age.
(D) An individual having such other
relationship to an individual described in
paragraph (1), (2), (3), or (4) as the Office
may by regulation prescribe.
(6) Eligible individual.--The term ``eligible
individual'' refers to an individual described in
paragraph (1), (2), (3), (4), or (5).
(7) Qualified carrier.--The term ``qualified
carrier'' means an insurance company (or consortium of
insurance companies) that is licensed to issue long-
term care insurance in all States, taking any
subsidiaries of such a company into account (and, in
the case of a consortium, considering the member
companies and any subsidiaries thereof, collectively).
(8) State.--The term ``State'' includes the
District of Columbia.
(9) Qualified long-term care insurance contract.--
The term ``qualified long-term care insurance
contract'' has the meaning given such term by section
7702B of the Internal Revenue Code of 1986.
(10) Appropriate secretary.--The term ``appropriate
Secretary'' means--
(A) except as otherwise provided in this
paragraph, the Secretary of Defense;
(B) with respect to the Coast Guard when it
is not operating as a service of the Navy, the
Secretary of Transportation;
(C) with respect to the commissioned corps
of the National Oceanic and Atmospheric
Administration, the Secretary of Commerce; and
(D) with respect to the commissioned corps
of the Public Health Service, the Secretary of
Health and Human Services.
Sec. 9002. Availability of insurance
(a) In General.--The Office of Personnel Management shall
establish and, in consultation with the appropriate
Secretaries, administer a program through which an individual
described in paragraph (1), (2), (3), (4), or (5) of section
9001 may obtain long-term care insurance coverage under this
chapter for such individual.
(b) General Requirements.--Long-term care insurance may not
be offered under this chapter unless--
(1) the only coverage provided is under qualified
long-term care insurance contracts; and
(2) each insurance contract under which any such
coverage is provided is issued by a qualified carrier.
(c) Documentation Requirement.--As a condition for
obtaining long-term care insurance coverage under this chapter
based on one's status as a qualified relative, an applicant
shall provide documentation to demonstrate the relationship, as
prescribed by the Office.
(d) Underwriting Standards.--
(1) Disqualifying condition.--Nothing in this
chapter shall be considered to require that long-term
care insurance coverage be made available in the case
of any individual who would be eligible for benefits
immediately.
(2) Spousal parity.--For the purpose of
underwriting standards, a spouse of an individual
described in paragraph (1), (2), (3), or (4) of section
9001 shall, as nearly as practicable, be treated like
that individual.
(3) Guaranteed issue.--Nothing in this chapter
shall be considered to require that long-term care
insurance coverage be guaranteed to an eligible
individual.
(4) Requirement that contract be fully insured.--In
addition to the requirements otherwise applicable under
section 9001(9), in order to be considered a qualified
long-term care insurance contract for purposes of this
chapter, a contract must be fully insured, whether
through reinsurance with other companies or otherwise.
(5) Higher standards allowable.--Nothing in this
chapter shall, in the case of an individual applying
for long-term care insurance coverage under this
chapter after the expiration of such individual's first
opportunity to enroll, preclude the application of
underwriting standards more stringent than those that
would have applied if that opportunity had not yet
expired.
(e) Guaranteed Renewability.--The benefits and coverage
made available to eligible individuals under any insurance
contract under this chapter shall be guaranteed renewable (as
defined by section 7A(2) of the model regulations described in
section 7702B(g)(2) of the Internal Revenue Code of 1986),
including the right to have insurance remain in effect so long
as premiums continue to be timely made. However, the authority
to revise premiums under this chapter shall be available only
on a class basis and only to the extent otherwise allowable
under section 9003(b).
Sec. 9003. Contracting authority
(a) In General.--The Office of Personnel Management shall,
without regard to section 5 of title 41 or any other statute
requiring competitive bidding, contract with one or more
qualified carriers for a policy or policies of long-term care
insurance. The Office shall ensure that each resulting contract
(hereafter in this chapter referred to as a ``master
contract'') is awarded on the basis of contractor
qualifications, price, and reasonable competition.
(b) Terms and Conditions.--
(1) In general.--Each master contract under this
chapter shall contain--
(A) a detailed statement of the benefits
offered (including any maximums, limitations,
exclusions, and other definitions of benefits);
(B) the premiums charged (including any
limitations or other conditions on their
subsequent adjustment);
(C) the terms of the enrollment period; and
(D) such other terms and conditions as may
be mutually agreed to by the Office and the
carrier involved, consistent with the
requirements of this chapter.
(2) Premiums.--Premiums charged under each master
contract entered into under this section shall
reasonably and equitably reflect the cost of the
benefits provided, as determined by the Office. The
premiums shall not be adjusted during the term of the
contract unless mutually agreed to by the Office and
the carrier.
(3) Nonrenewability.--Master contracts under this
chapter may not be made automatically renewable.
(c) Payment of Required Benefits; Dispute Resolution.--
(1) In general.--Each master contract under this
chapter shall require the carrier to agree--
(A) to provide payments or benefits to an
eligible individual if such individual is
entitled thereto under the terms of the
contract; and
(B) with respect to disputes regarding
claims for payments or benefits under the terms
of the contract--
(i) to establish internal
procedures designed to expeditiously
resolve such disputes; and
(ii) to establish, for disputes not
resolved through procedures under
clause (i), procedures for one or more
alternative means of dispute resolution
involving independent third-party
review under appropriate circumstances
by entities mutually acceptable to the
Office and the carrier.
(2) Eligibility.--A carrier's determination as to
whether or not a particular individual is eligible to
obtain long-term care insurance coverage under this
chapter shall be subject to review only to the extent
and in the manner provided in the applicable master
contract.
(3) Other claims.--For purposes of applying the
Contract Disputes Act of 1978 to disputes arising under
this chapter between a carrier and the Office--
(A) the agency board having jurisdiction to
decide an appeal relative to such a dispute
shall be such board of contract appeals as the
Director of the Office of Personnel Management
shall specify in writing (after appropriate
arrangements, as described in section 8(c) of
such Act); and
(B) the district courts of the United
States shall have original jurisdiction,
concurrent with the United States Court of
Federal Claims, of any action described in
section 10(a)(1) of such Act relative to such a
dispute.
(4) Rule of construction.--Nothing in this chapter
shall be considered to grant authority for the Office
or a third-party reviewer to change the terms of any
contract under this chapter.
(d) Duration.--
(1) In general.--Each master contract under this
chapter shall be for a term of 7 years, unless
terminated earlier by the Office in accordance with the
terms of such contract. However, the rights and
responsibilities of the enrolled individual, the
insurer, and the Office (or duly designated third-party
administrator) under such contract shall continue with
respect to such individual until the termination of
coverage of the enrolled individual or the effective
date of a successor contract thereto.
(2) Exception.--
(A) Shorter duration.--In the case of a
master contract entered into before the end of
the period described in subparagraph (B),
paragraph (1) shall be applied by substituting
``ending on the last day of the 7-year period
described in paragraph (2)(B)'' for ``of 7
years''.
(B) Definition.--The period described in
this subparagraph is the 7-year period
beginning on the earliest date as of which any
long-term care insurance coverage under this
chapter becomes effective.
(3) Congressional notification.--No later than 180
days after receiving the second report required under
section 9006(c), the President (or his designee) shall
submit to the Committees on Government Reform and on
Armed Services of the House of Representatives and the
Committees on Governmental Affairs and on Armed
Services of the Senate, a written recommendation as to
whether the program under this chapter should be
continued without modification, terminated, or
restructured. During the 180-day period following the
date on which the President (or his designee) submits
the recommendation required under the preceding
sentence, the Office of Personnel Management may not
take any steps to rebid or otherwise contract for any
coverage to be available at any time following the
expiration of the 7-year period described in paragraph
(2)(B).
(4) Full portability.--Each master contract under
this chapter shall include such provisions as may be
necessary to ensure that, once an individual becomes
duly enrolled, long-term care insurance coverage
obtained by such individual pursuant to that enrollment
shall not be terminated due to any change in status
(such as separation from Government service or the
uniformed services) or ceasing to meet the requirements
for being considered a qualified relative (whether as a
result of dissolution of marriage or otherwise).
Sec. 9004. Financing
(a) In General.--Each eligible individual obtaining long-
term care insurance coverage under this chapter shall be
responsible for 100 percent of the premiums for such coverage.
(b) Withholdings.--
(1) In general.--The amount necessary to pay the
premiums for enrollment may--
(A) in the case of an employee, be withheld
from the pay of such employee;
(B) in the case of an annuitant, be
withheld from the annuity of such annuitant;
(C) in the case of a member of the
uniformed services described in section
9001(3), be withheld from the pay of such
member; and
(D) in the case of a retired member of the
uniformed services described in section
9001(4), be withheld from the retired pay or
retainer pay payable to such member.
(2) Voluntary withholdings for qualified
relatives.--Withholdings to pay the premiums for
enrollment of a qualified relative may, upon election
of the appropriate eligible individual (described in
section 9001(1)-(4)), be withheld under paragraph (1)
to the same extent and in the same manner as if
enrollment were for such individual.
(c) Direct Payments.--All amounts withheld under this
section shall be paid directly to the carrier.
(d) Other Forms of Payment.--Any enrollee who does not
elect to have premiums withheld under subsection (b) or whose
pay, annuity, or retired or retainer pay (as referred to in
subsection (b)(1)) is insufficient to cover the withholding
required for enrollment (or who is not receiving any regular
amounts from the Government, as referred to in subsection
(b)(1), from which any such withholdings may be made, and whose
premiums are not otherwise being provided for under subsection
(b)(2)) shall pay an amount equal to the full amount of those
charges directly to the carrier.
(e) Separate Accounting Requirement.--Each carrier
participating under this chapter shall maintain records that
permit it to account for all amounts received under this
chapter (including investment earnings on those amounts)
separate and apart from all other funds.
(f ) Reimbursements.--
(1) Reasonable initial costs.--
(A) In general.--The Employees' Life
Insurance Fund is available, without fiscal
year limitation, for reasonable expenses
incurred by the Office of Personnel Management
in administering this chapter before the start
of the 7-year period described in section
9003(d)(2)(B), including reasonable
implementation costs.
(B) Reimbursement requirement.--Such Fund
shall be reimbursed, before the end of the
first year of that 7-year period, for all
amounts obligated or expended under
subparagraph (A) (including lost investment
income). Such reimbursement shall be made by
carriers, on a pro rata basis, in accordance
with appropriate provisions which shall be
included in master contracts under this
chapter.
(2) Subsequent costs.--
(A) In general.--There is hereby
established in the Employees' Life Insurance
Fund a Long-Term Care Administrative Account,
which shall be available to the Office, without
fiscal year limitation, to defray reasonable
expenses incurred by the Office in
administering this chapter after the start of
the 7-year period described in section
9003(d)(2)(B).
(B) Reimbursement requirement.--Each master
contract under this chapter shall include
appropriate provisions under which the carrier
involved shall, during each year, make such
periodic contributions to the Long-Term Care
Administrative Account as necessary to ensure
that the reasonable anticipated expenses of the
Office in administering this chapter during
such year (adjusted to reconcile for any
earlier overestimates or underestimates under
this subparagraph) are defrayed.
Sec. 9005. Preemption
The terms of any contract under this chapter which relate
to the nature, provision, or extent of coverage or benefits
(including payments with respect to benefits) shall supersede
and preempt any State or local law, or any regulation issued
thereunder, which relates to long-term care insurance or
contracts.
Sec. 9006. Studies, reports, and audits
(a) Provisions Relating to Carriers.--Each master contract
under this chapter shall contain provisions requiring the
carrier--
(1) to furnish such reasonable reports as the
Office of Personnel Management determines to be
necessary to enable it to carry out its functions under
this chapter; and
(2) to permit the Office and representatives of the
General Accounting Office to examine such records of
the carrier as may be necessary to carry out the
purposes of this chapter.
(b) Provisions Relating to Federal Agencies.--Each Federal
agency shall keep such records, make such certifications, and
furnish the Office, the carrier, or both, with such information
and reports as the Office may require.
(c) Reports by the General Accounting Office.--The General
Accounting Office shall prepare and submit to the President,
the Office of Personnel Management, and each House of Congress,
before the end of the third and fifth years during which the
program under this chapter is in effect, a written report
evaluating such program. Each such report shall include an
analysis of the competitiveness of the program, as compared to
both group and individual coverage generally available to
individuals in the private insurance market. The Office shall
cooperate with the General Accounting Office to provide
periodic evaluations of the program.
Sec. 9007. Jurisdiction of courts
The district courts of the United States have original
jurisdiction of a civil action or claim described in paragraph
(1) or (2) of section 9003(c), after such administrative
remedies as required under such paragraph (1) or (2) (as
applicable) have been exhausted, but only to the extent
judicial review is not precluded by any dispute resolution or
other remedy under this chapter.
Sec. 9008. Administrative functions
(a) In General.--The Office of Personnel Management shall
prescribe regulations necessary to carry out this chapter.
(b) Enrollment Periods.--The Office shall provide for
periodic coordinated enrollment, promotion, and education
efforts in consultation with the carriers.
(c) Consultation.--Any regulations necessary to effect the
application and operation of this chapter with respect to an
eligible individual described in paragraph (3) or (4) of
section 9001, or a qualified relative thereof, shall be
prescribed by the Office in consultation with the appropriate
Secretary.
(d) Informed Decisionmaking.--The Office shall ensure that
each eligible individual applying for long-term care insurance
under this chapter is furnished the information necessary to
enable that individual to evaluate the advantages and
disadvantages of obtaining long-term care insurance under this
chapter, including the following:
(1) The principal long-term care benefits and
coverage available under this chapter, and how those
benefits and coverage compare to the range of long-term
care benefits and coverage otherwise generally
available.
(2) Representative examples of the cost of long-
term care, and the sufficiency of the benefits
available under this chapter relative to those costs.
The information under this paragraph shall also
include--
(A) the projected effect of inflation on
the value of those benefits; and
(B) a comparison of the inflation-adjusted
value of those benefits to the projected future
costs of long-term care.
(3) Any rights individuals under this chapter may
have to cancel coverage, and to receive a total or
partial refund of premiums. The information under this
paragraph shall also include--
(A) the projected number or percentage of
individuals likely to fail to maintain their
coverage (determined based on lapse rates
experienced under similar group long-term care
insurance programs and, when available, this
chapter); and
(B)(i) a summary description of how and
when premiums for long-term care insurance
under this chapter may be raised;
(ii) the premium history during the last 10
years for each qualified carrier offering long-
term care insurance under this chapter; and
(iii) if cost increases are anticipated,
the projected premiums for a typical insured
individual at various ages.
(4) The advantages and disadvantages of long-term
care insurance generally, relative to other means of
accumulating or otherwise acquiring the assets that may
be needed to meet the costs of long-term care, such as
through tax-qualified retirement programs or other
investment vehicles.
Sec. 9009. Cost accounting standards
The cost accounting standards issued pursuant to section
26(f ) of the Office of Federal Procurement Policy Act (41
U.S.C. 422(f )) shall not apply with respect to a long-term
care insurance contract under this chapter.
Subpart H--Access to Criminal History Record Information
CHAPTER 91--ACCESS TO CRIMINAL HISTORY RECORDS FOR NATIONAL SECURITY
AND OTHER PURPOSES
Sec.
9101. Access to criminal history records for national security and
other purposes.
Sec. 9101. Access to criminal history records for national security and
other purposes
(a) As used in this section:
(1) The term ``criminal justice agency'' means (A)
any Federal, State, or local court, and (B) any
Federal, State, or local agency, or any subunit
thereof, which performs the administration of criminal
justice pursuant to a statute or Executive order, and
which allocates a substantial part of its annual budget
to the administration of criminal justice.
(2) The term ``criminal history record
information'' means information collected by criminal
justice agencies on individuals consisting of
identifiable descriptions and notations of arrests,
indictments, informations, or other formal criminal
charges, and any disposition arising therefrom,
sentencing, correction supervision, and release. The
term does not include identification information such
as fingerprint records to the extent that such
information does not indicate involvement of the
individual in the criminal justice system. The term
does not include those records of a State or locality
sealed pursuant to law from access by State and local
criminal justice agencies of that State or locality.
(3) The term ``classified information'' means
information or material designated pursuant to the
provisions of a statute or Executive order as requiring
protection against unauthorized disclosure for reasons
of national security.
(4) The term ``State'' means any of the several
States, the District of Columbia, the Commonwealth of
Puerto Rico, the Commonwealth of the Northern Mariana
Islands, Guam, the Virgin Islands, American Samoa, and
any other territory or possession of the United States.
(5) The term ``local'' and ``locality'' means any
local government authority or agency or component
thereof within a State having jurisdiction over matters
at a county, municipal, or other local government
level.
(6) The term ``covered agency'' means any of the
following:
(A) The Department of Defense.
(B) The Department of State.
(C) The Department of Transportation.
(D) The Office of Personnel Management.
(E) The Central Intelligence Agency.
(F) The Federal Bureau of Investigation.
(b)(1) Upon request by the head of a covered agency,
criminal justice agencies shall make available criminal history
record information regarding individuals under investigation by
that covered agency for the purpose of determining eligibility
for any of the following:
(A) Access to classified information.
(B) Assignment to or retention in sensitive
national security duties.
(C) Acceptance or retention in the armed forces.
(D) Appointment, retention, or assignment to a
position of public trust or a critical or sensitive
position while either employed by the Government or
performing a Government contract.
(2) Such a request to a State central criminal history
record repository shall be accompanied by the fingerprints of
the individual who is the subject of the request if required by
State law and if the repository uses the fingerprints in an
automated fingerprint identification system.
(3) Fees, if any, charged for providing criminal history
record information pursuant to this subsection shall not exceed
the reasonable cost of providing such information.
(4) This subsection shall apply notwithstanding any other
provision of law or regulation of any State or of any locality
within a State, or any other law of the United States.
(c) A covered agency shall not obtain criminal history
record information pursuant to this section unless it has
received written consent from the individual under
investigation for the release of such information for the
purposes set forth in paragraph (b)(1).
(d) Criminal history record information received under this
section shall be disclosed or used only for the purposes set
forth in paragraph (b)(1) or for national security or criminal
justice purposes authorized by law, and such information shall
be made available to the individual who is the subject of such
information upon request.
(e)(1) Automated information delivery systems shall be used
to provide criminal history record information to a covered
agency under subsection (b) whenever available.
(2) Fees, if any, charged for automated access through such
systems may not exceed the reasonable cost of providing such
access.
(3) The criminal justice agency providing the criminal
history record information through such systems may not limit
disclosure on the basis that the repository is accessed from
outside the State.
(4) Information provided through such systems shall be the
full and complete criminal history record.
(5) Criminal justice agencies shall accept and respond to
requests for criminal history record information through such
systems with printed or photocopied records when requested.
(f) The authority provided under this section with respect
to the Department of State may be exercised only so long as the
Department of State continues to extend to its employees and
applicants for employment, at a minimum, those procedural
safeguards provided for as part of the security clearance
process that were made available, as of May 1, 1987, pursuant
to section 163.4 of volume 3 of the Foreign Affairs Manual.
Subpart I--Miscellaneous
CHAPTER 95--PERSONNEL FLEXIBILITIES RELATING TO THE INTERNAL REVENUE
SERVICE
Sec.
9501. Internal Revenue Service personnel flexibilities.
9502. Pay authority for critical positions.
9503. Streamlined critical pay authority.
9504. Recruitment, retention, relocation incentives, and relocation
expenses.
9505. Performance awards for senior executives.
9506. Limited appointments to career reserved Senior Executive
Service positions.
9507. Streamlined demonstration project authority.
9508. General workforce performance management system.
9509. General workforce classification and pay.
9510. General workforce staffing.
Sec. 9501. Internal Revenue Service personnel flexibilities
(a) Any flexibilities provided by sections 9502 through
9510 of this chapter shall be exercised in a manner consistent
with--
(1) chapter 23 (relating to merit system principles
and prohibited personnel practices);
(2) provisions relating to preference eligibles;
(3) except as otherwise specifically provided,
section 5307 (relating to the aggregate limitation on
pay);
(4) except as otherwise specifically provided,
chapter 71 (relating to labor-management relations);
and
(5) subject to subsections (b) and (c) of section
1104, as though such authorities were delegated to the
Secretary of the Treasury under section 1104(a)(2).
(b) The Secretary of the Treasury shall provide the Office
of Personnel Management with any information that Office
requires in carrying out its responsibilities under this
section.
(c) Employees within a unit to which a labor organization
is accorded exclusive recognition under chapter 71 shall not be
subject to any flexibility provided by sections 9507 through
9510 of this chapter unless the exclusive representative and
the Internal Revenue Service have entered into a written
agreement which specifically provides for the exercise of that
flexibility. Such written agreement may be imposed by the
Federal Services Impasses Panel under section 7119.
Sec. 9502. Pay authority for critical positions
(a) When the Secretary of the Treasury seeks a grant of
authority under section 5377 for critical pay for 1 or more
positions at the Internal Revenue Service, the Office of
Management and Budget may fix the rate of basic pay,
notwithstanding sections 5377(d)(2) and 5307, at any rate up to
the salary set in accordance with section 104 of title 3.
(b) Notwithstanding section 5307, no allowance,
differential, bonus, award, or similar cash payment may be paid
to any employee receiving critical pay at a rate fixed under
subsection (a), in any calendar year if, or to the extent that,
the employee's total annual compensation will exceed the
maximum amount of total annual compensation payable at the
salary set in accordance with section 104 of title 3.
Sec. 9503. Streamlined critical pay authority
(a) Notwithstanding section 9502, and without regard to the
provisions of this title governing appointments in the
competitive service or the Senior Executive Service and
chapters 51 and 53 (relating to classification and pay rates),
the Secretary of the Treasury may, for a period of 10 years
after the date of enactment of this section, establish, fix the
compensation of, and appoint individuals to, designated
critical administrative, technical, and professional positions
needed to carry out the functions of the Internal Revenue
Service, if--
(1) the positions--
(A) require expertise of an extremely high
level in an administrative, technical, or
professional field; and
(B) are critical to the Internal Revenue
Service's successful accomplishment of an
important mission;
(2) exercise of the authority is necessary to
recruit or retain an individual exceptionally well
qualified for the position;
(3) the number of such positions does not exceed 40
at any one time;
(4) designation of such positions are approved by
the
Secretary of the Treasury;
(5) the terms of such appointments are limited to
no more than 4 years;
(6) appointees to such positions were not Internal
Revenue Service employees prior to June 1, 1998;
(7) total annual compensation for any appointee to
such positions does not exceed the highest total annual
compensation payable at the rate determined under
section 104 of title 3; and
(8) all such positions are excluded from the
collective bargaining unit.
(b) Individuals appointed under this section shall not be
considered to be employees for purposes of subchapter II of
chapter 75.
Sec. 9504. Recruitment, retention, relocation incentives, and
relocation expenses
(a) For a period of 10 years after the date of enactment of
this section and subject to approval by the Office of Personnel
Management, the Secretary of the Treasury may provide for
variations from sections 5753 and 5754 governing payment of
recruitment, relocation, and retention incentives.
(b) For a period of 10 years after the date of enactment of
this section, the Secretary of the Treasury may pay from
appropriations made to the Internal Revenue Service allowable
relocation expenses under section 5724a for employees
transferred or reemployed and allowable travel and
transportation expenses under section 5723 for new appointees,
for any new appointee appointed to a position for which pay is
fixed under section 9502 or 9503 after June 1, 1998.
Sec. 9505. Performance awards for senior executives
(a) For a period of 10 years after the date of enactment of
this section, Internal Revenue Service senior executives who
have program management responsibility over significant
functions of the Internal Revenue Service may be paid a
performance bonus without regard to the limitation in section
5384(b)(2) if the Secretary of the Treasury finds such award
warranted based on the executive's performance.
(b) In evaluating an executive's performance for purposes
of an award under this section, the Secretary of the Treasury
shall take into account the executive's contributions toward
the successful accomplishment of goals and objectives
established under the Government Performance and Results Act of
1993, division E of the Clinger-Cohen Act of 1996 (Public Law
104-106; 110 Stat. 679), Revenue Procedure 64-22 (as in effect
on July 30, 1997), taxpayer service surveys, and other
performance metrics or plans established in consultation with
the Internal Revenue Service Oversight Board.
(c) Any award in excess of 20 percent of an executive's
rate of basic pay shall be approved by the Secretary of the
Treasury.
(d) Notwithstanding section 5384(b)(3), the Secretary of
the Treasury shall determine the aggregate amount of
performance awards available to be paid during any fiscal year
under this section and section 5384 to career senior executives
in the Internal Revenue Service. Such amount may not exceed an
amount equal to 5 percent of the aggregate amount of basic pay
paid to career senior executives in the Internal Revenue
Service during the preceding fiscal year. The Internal Revenue
Service shall not be included in the determination under
section 5384(b)(3) of the aggregate amount of performance
awards payable to career senior executives in the Department of
the Treasury other than the Internal Revenue Service.
(e) Notwithstanding section 5307, a performance bonus award
may not be paid to an executive in a calendar year if, or to
the extent that, the executive's total annual compensation will
exceed the maximum amount of total annual compensation payable
at the rate determined under section 104 of title 3.
Sec. 9506. Limited appointments to career reserved Senior Executive
Service positions
(a) In the application of section 3132, a ``career reserved
position'' in the Internal Revenue Service means a position
designated under section 3132(b) which may be filled only by--
(1) a career appointee; or
(2) a limited emergency appointee or a limited term
appointee--
(A) who, immediately upon entering the
career reserved position, was serving under a
career or career-conditional appointment
outside the Senior Executive
Service; or
(B) whose limited emergency or limited term
appointment is approved in advance by the
Office of Personnel Management.
(b)(1) The number of positions described under subsection
(a) which are filled by an appointee as described under
paragraph (2) of such subsection may not exceed 10 percent of
the total number of Senior Executive Service positions in the
Internal Revenue Service.
(2) Notwithstanding section 3132--
(A) the term of an appointee described under
subsection (a)(2) may be for any period not to exceed 3
years; and
(B) such an appointee may serve--
(i) two such terms; or
(ii) two such terms in addition to any
unexpired term applicable at the time of
appointment.
Sec. 9507. Streamlined demonstration project authority
(a) The exercise of any of the flexibilities under sections
9502 through 9510 shall not affect the authority of the
Secretary of the Treasury to implement for the Internal Revenue
Service a demonstration project subject to chapter 47, as
provided in subsection (b).
(b) In applying section 4703 to a demonstration project
described in section 4701(a)(4) which involves the Internal
Revenue Service--
(1) section 4703(b)(1) shall be deemed to read as
follows:
``(1) develop a plan for such project which
describes its purpose, the employees to be covered, the
project itself, its anticipated outcomes, and the
method of evaluating the project;'';
(2) section 4703(b)(3) shall not apply;
(3) the 180-day notification period in section
4703(b)(4) shall bye deemed to be a notification period
of 30 days;
(4) section 4703(b)(6) shall be deemed to read as
follows:
``(6) provides each House of Congress with the
final version of the plan.'';
(5) section 4703(c)(1) shall be deemed to read as
follows:
``(1) subchapter V of chapter 63 or subpart G of
part III of this title;'';
(6) the requirements of paragraphs (1)(A) and (2)
of section 4703(d) shall not apply; and
(7) notwithstanding section 4703(d)(1)(B), based on
an evaluation as provided in section 4703(h), the
Office of Personnel Management and the Secretary of the
Treasury, except as otherwise provided by this
subsection, may waive the termination date of a
demonstration project under section 4703(d).
(c) At least 90 days before waiving the termination date
under subsection (b)(7), the Office of Personnel Management
shall publish in the Federal Register a notice of its intention
to waive the termination date and shall inform in writing both
Houses of Congress of its intention.
Sec. 9508. General workforce performance management system
(a) In lieu of a performance appraisal system established
under section 4302, the Secretary of the Treasury shall, within
1 year after the date of enactment of this section, establish
for the Internal Revenue Service a performance management
system that--
(1) maintains individual accountability by--
(A) establishing one or more retention
standards for each employee related to the work
of the employee and expressed in terms of
individual performance, and communicating such
retention standards to employees;
(B) making periodic determinations of
whether each employee meets or does not meet
the employee's established retention standards;
and
(C) taking actions, in accordance with
applicable laws and regulations, with respect
to any employee whose performance does not meet
established retention standards, including
denying any increases in basic pay, promotions,
and credit for performance under section 3502,
and taking one or more of the following
actions:
(i) Reassignment.
(ii) An action under chapter 43 or
chapter 75 of this title.
(iii) Any other appropriate action
to resolve the performance problem; and
(2) except as provided under section 1204 of the
Internal Revenue Service Restructuring and Reform Act
of 1998, strengthens the system's effectiveness by--
(A) establishing goals or objectives for
individual, group, or organizational
performance (or any combination thereof ),
consistent with the Internal Revenue Service's
performance planning procedures, including
those established under the Government
Performance and Results Act of 1993, division E
of the Clinger-Cohen Act of 1996 (Public Law
104-106; 110 Stat. 679), Revenue Procedure 64-
22 (as in effect on July 30, 1997), and
taxpayer service surveys, and communicating
such goals or objectives to employees;
(B) using such goals and objectives to make
performance distinctions among employees or
groups of employees; and
(C) using performance assessments as a
basis for granting employee awards, adjusting
an employee's rate of basic pay, and other
appropriate personnel actions, in accordance
with applicable laws and regulations.
(b)(1) For purposes of subsection (a)(2), the term
``performance assessment'' means a determination of whether or
not retention standards established under subsection (a)(1)(A)
are met, and any additional performance determination made on
the basis of performance goals and objectives established under
subsection (a)(2)(A).
(2) For purposes of this title, the term ``unacceptable
performance'' with respect to an employee of the Internal
Revenue Service covered by a performance management system
established under this section means performance of the
employee which fails to meet a retention standard established
under this section.
(c)(1) The Secretary of the Treasury may establish an
awards program designed to provide incentives for and
recognition of organizational, group, and individual
achievements by providing for granting awards to employees who,
as individuals or members of a group, contribute to meeting the
performance goals and objectives established under this chapter
by such means as a superior individual or group accomplishment,
a documented productivity gain, or sustained superior
performance.
(2) A cash award under subchapter I of chapter 45 may be
granted to an employee of the Internal Revenue Service without
the need for any approval under section 4502(b).
(d)(1) In applying sections 4303(b)(1)(A) and 7513(b)(1) to
employees of the Internal Revenue Service, ``30 days'' may be
deemed to be ``15 days''.
(2) Notwithstanding the second sentence of section 5335(c),
an employee of the Internal Revenue Service shall not have a
right to appeal the denial of a periodic step increase under
section 5335 to the Merit Systems Protection Board.
Sec. 9509. General workforce classification and pay
(a) For purposes of this section, the term ``broad-banded
system'' means a system for grouping positions for pay, job
evaluation, and other purposes that is different from the
system established under chapter 51 and subchapter III of
chapter 53 as a result of combining grades and related ranges
of rates of pay in one or more occupational series.
(b)(1)(A) The Secretary of the Treasury may, subject to
criteria to be prescribed by the Office of Personnel
Management, establish one or more broad-banded systems covering
all or any portion of the Internal Revenue Service workforce.
(B) With the approval of the Office of Personnel
Management, a broad-banded system established under this
section may either include or consist of positions that
otherwise would be subject to subchapter IV of chapter 53 or
section 5376.
(2) The Office of Personnel Management may require the
Secretary of the Treasury to submit information relating to
broad-banded systems at the Internal Revenue Service.
(3) Except as otherwise provided under this section,
employees under a broad-banded system shall continue to be
subject to the laws and regulations covering employees under
the pay system that otherwise would apply to such employees.
(4) The criteria to be prescribed by the Office of
Personnel Management shall, at a minimum--
(A) ensure that the structure of any broad-banded
system maintains the principle of equal pay for
substantially equal work;
(B) establish the minimum and maximum number of
grades that may be combined into pay bands;
(C) establish requirements for setting minimum and
maximum rates of pay in a pay band;
(D) establish requirements for adjusting the pay of
an employee within a pay band;
(E) establish requirements for setting the pay of a
supervisory employee whose position is in a pay band or
who supervises employees whose positions are in pay
bands; and
(F) establish requirements and methodologies for
setting the pay of an employee upon conversion to a
broad-banded system, initial appointment, change of
position or type of appointment (including promotion,
demotion, transfer, reassignment, reinstatement,
placement in another pay band, or movement to a
different geographic location), and movement between a
broad-banded system and another pay system.
(c) With the approval of the Office of Personnel Management
and in accordance with a plan for implementation submitted by
the Secretary of the Treasury, the Secretary may, with respect
to Internal Revenue Service employees who are covered by a
broad-banded system established under this section, provide for
variations from the provisions of subchapter VI of chapter 53.
Sec. 9510. General workforce staffing
(a)(1) Except as otherwise provided by this section, an
employee of the Internal Revenue Service may be selected for a
permanent appointment in the competitive service in the
Internal Revenue Service through internal competitive promotion
procedures if--
(A) the employee has completed, in the competitive
service, 2 years of current continuous service under a
term appointment or any combination of term
appointments;
(B) such term appointment or appointments were made
under competitive procedures prescribed for permanent
appointments;
(C) the employee's performance under such term
appointment or appointments met established retention
standards, or, if not covered by a performance
management system established under section 9508, was
rated at the fully successful level or higher (or
equivalent thereof ); and
(D) the vacancy announcement for the term
appointment from which the conversion is made stated
that there was a potential for subsequent conversion to
a permanent appointment.
(2) An appointment under this section may be made only to a
position in the same line of work as a position to which the
employee received a term appointment under competitive
procedures.
(b)(1) Notwithstanding subchapter I of chapter 33, the
Secretary of the Treasury may establish category rating systems
for evaluating applicants for Internal Revenue Service
positions in the competitive service under which qualified
candidates are divided into two or more quality categories on
the basis of relative degrees of merit, rather than assigned
individual numerical ratings.
(2) Each applicant who meets the minimum qualification
requirements for the position to be filled shall be assigned to
an appropriate category based on an evaluation of the
applicant's knowledge, skills, and abilities relative to those
needed for successful performance in the position to be filled.
(3) Within each quality category established under
paragraph (1), preference eligibles shall be listed ahead of
individuals who are not preference eligibles. For other than
scientific and professional positions at or higher than GS-9
(or equivalent), preference eligibles who have a compensable
service-connected disability of 10 percent or more, and who
meet the minimum qualification standards, shall be listed in
the highest quality category.
(4) An appointing authority may select any applicant from
the highest quality category or, if fewer than three candidates
have been assigned to the highest quality category, from a
merged category consisting of the highest and second highest
quality categories.
(5) Notwithstanding paragraph (4), the appointing authority
may not pass over a preference eligible in the same or higher
category from which selection is made unless the requirements
of section 3317(b) or 3318(b), as applicable, are satisfied.
(c) The Secretary of the Treasury may detail employees
among the offices of the Internal Revenue Service without
regard to the 120-day limitation in section 3341(b).
(d) Notwithstanding any other provision of law, the
Secretary of the Treasury may establish a probationary period
under section 3321 of up to 3 years for Internal Revenue
Service positions if the Secretary of the Treasury determines
that the nature of the work is such that a shorter period is
insufficient to demonstrate complete proficiency in the
position.
(e) Nothing in this section exempts the Secretary of the
Treasury from--
(1) any employment priority established under
direction of the President for the placement of surplus
or displaced employees; or
(2) any obligation under a court order or decree
relating to the employment practices of the Internal
Revenue Service or the Department of the Treasury.